TABLE OF CONTENTS
-ge
INTRODUCTION ..................................... V
PART 1
CHAPTER 1 THEOBJECTIVESOFTHELITIGATION ... 1
CHAPTER II THE LAW APPLICABLE TO THE
DELIMITATION OF THE DISPUTED
LAND FRONTIER .......... ;. .......... 12
Section 1 The Correct Interpretation of the ..
Principle of Uti Possediis Iuris in
relation to Forma1 Title Deeds to
Gommons ............................ 14
Section II The Abandonment and Supercession of
the Distinction Advanced by Honduras 22
Section III The manner in which Forma1 Title
Deeds to Commons ought to be read
and interpreted .................... 33
CHAPTER III THE SECTORS OF THE LAND FRONTIER IN
DISPUTE ............................ 40
Section 1 Tecpangüisir Mountain .............. 40
Section II Las P.ilasor Cayaguanca ............. 51
Section III Arcatao or Zazalapa ................ 70
section IV Nahuaterique and Torola ............ 79
(A) The Sub-Sector of Nahuaterique . 80
(B) The Sub-Sector of Torola ....... 89
(C) Colonial ~ocuments which confirm
the Forma1 Title Deeds to the
Commons of Arambala, Perquin
and Torola ..................... 99 CD) The Validity of the Maps
Presented ...................... 10.1
Section V ~olores, Monteca and Polor6s ....... 103
(A) The Citation of Titles not
previously presented ........... 105
(B) The Invocation of the Concept of
the Natural Frontier and the
Identification of the Cerro
de Ribita ...................... 110
(C) The Villatoro Incident ......... 115
(D) Presentedity....................... 116
Section VI The-Estuary of the River Goascoran . 117
(A) Los Amates ..................... 117
(B) The Delta of the River Goascoran 123
(C) The Validityof the Maps
Presented ...................... 126
CHAPTER IV ARGUMENTS OF A HUMAN NATURE
PRESENTED BY EL SALVADOR IN
SUPPORT OF ITS FRONTIER
RIGHTS ("EFFECTIVITCS~) ....i....... 129
Section 1 The Wide Range of Methods of Proof
Applicable in this Litigation ....... 129
Section II The Arguments of a Human Nature
Supplement the "Effectivites" ...... 131
Section III NO Arguments of a Human Nature Can
Validly be Advanced by Honduras .... 132
' section 'IV The General Peace Treaty Secures
Human Objectives ................... 133
Section V The Population and Development of
the Sectors claimed by Honduras
is entirely SalvadoreÏian ........... 135
Section VI The Military Jurisdiction .......... 139
section VI1 The Ethical Relevance of Arguments
of a Human Nature .................. 140 PART II
CHAPTER V DETERMINATION OF THE JURIDICAL
STATUS OF THE ISLANDS .............. 141
Section 1 The Dispute Concerns the Attribution
of Territory rather than a '
Delimitation of 'Territory .......... 141
Section II The Ecclesiastical Argument
considered from a Juridical
Point of View ....................... 147
section III The Ecclesiastical Argument
considered in the light of
the Facts and Precedents ..
Section IV The "Real C6dula" (Royal Decree)
issued in 1745 in favour of
Juan de vera ....................... 158
CHAPTER VI THE DFXERMINATION OF THE JURIDICAL
STATUS OF THE ISLANDS .............. 161
Section 1 The 0bject.ivesof the Litigation
in respect of the Islands .......... 161
Section II The Colonial Spanish Title Deeds . .
relating to the dispute over
the Islands ........................ 166
(A) The Title Deeds and Other
Documents of the Sixteenth
and Seventeenth Centuries ...... 166
(B) The Title Deeds and Other
Documents of the Eighteenth
and Nineteenth Centuries ....... 184
Section III The Peaceful and Continuous
Display of State Activity .......... 195
CHAPTER VI1 THE JURIDICAL STATUS OF THE GULF
OF FONSECA ........................ : 212Section 1 Co-ownership in Multinational Bays
and Estuaries ...................... 215
Section II The Establishment of a System of
Joint Sovereignity does not
require any forma1 agreement ....... 225
Section III The Attitude of Honduras in relation
to the Decision of the Central
American Court of Justice in 1917 ,. 235
Section IV Other Attitudes Adopted by Honduras 243
Section V Summary and Conclusions ............ 248
THE LEGAL POSITION OUTSIDE THE
GULF OF FONSECA .................... 254
Section 1 The Jurisdiction of the Court does
not extend to the Delimitation of
Gulf of Fonsecadary.................... 254
Section II The Rights of Honduras beyond the
Gulf of Fonseca, .................... 257
Section III The Claim of Honduras t0.a Base-Line
comprising a Segment of the Closing
Line Across the Mouth of the Gulf .. 268
Section IV The Confusion between Co-ownership
of the Waters of the Gulf of Fonseca
and the Existence of a Common
Base-Line to the Pacific ........... 273
Section V The Irrelevance of the Delimitation
Argument ........................... 275
Section VI Comments on references made by
Honduras to the Coasts of the
Riparian States of the Gulf
of Fonseca .......................... 277
.
Section VI1 Conclusions ....................... 290
SUBMISSIONS INTRODUCTION
This is the COUNTER MEMORIAL of El Salvador in the
Case Concerning the Land, Island and Maritime Frontier
Dispute between El Salvador and Honduras, presented
in accordance with the Order of the International
Court of Justice of 29 May 1987 as modified by the
Order of 12 January 1989 handed down by the Honorable
Judge JOSE SEITE-CAMARA, President of the Chamber.
in the exercise of the faculties conferred upon him
by the Statute and the Regulations of the International
Court of Justice. for the purpose of extending the
period for the presentation of this Counter Memrorial
until this day. PART 1
CHAPTER 1
THE OBJECTIVES OF THE LITIGATION
1.1. The objectives of the litigation which the
Chamber of the International Court of Justice
is called upon to decide are defined by ~rticle 2
of the Special. Agreement which forms the basis of
the jurisdictionof the Court in the following terms:
"The Parties .request the Chamber:
"1. That it delimit the line of the frontier in the
zones or sectors not described in Article 16 of the
General Peace Treaty (Tratado General de Paz) of 30
October 1980.
"II. That it determine the juridical status of the
islands-and of the maritime spaces."
1.2. The Government of El Salvador feels compelled
to reiterate and to emphasise the clear
and precise terms of this fundamental provision which
constitutes the basis of this litigation because it
is apparent from the fact that the Government of
Honduras has asked the Chamber to carry out a
delimitation both inside the Gulf of Fonseca and in
the maritime spaces outside the mouth of this Gulf
that that Government has not correctly understood
the scope of the matters that the Parties have agreed
to submit to the Chamber for its decision.
1.3. It is obvious from the form and content
of 'the Article of the Special Agreement set out above
that the Parties to this litigation have established a clear distinction between the two different aspects
pf the dispute between them and that th& have agreed
to submit to the Chamber two quite distinct questions:
on the one hand, the delimitation of the line of the
frontier in the zones or sectors in respect of which
no delimitation has yet been agreed and, on the other
hand. the determination of the juridical status of
the isiands and of the maritime spaces.
1.4. Before examining more closely the nature
of these two concepts, El Salvador believes
that it would be usefui to recall above ail else the
supreme importance of the Special Agreement in each
' and every .matter submitted by such an agreement to
an International Tribunal and. more particularly.
to the. International Court of Justice. The Special
Agreement fulfils two functions, both linked to khat
the International Court of Justice has described as
the principle of consensus which is at the base of
the competence of the Court (1), but which must
nevertheless be distinguished. The International Court
of Justice has stated that, in a matter submitted
by Special Agreement. it is that Special Agreement
which contains. the consent of the Parties to the
solution of their dispute by the Court and which
indicates to the Court the scope of its activities
1. ~ibya- a ti continental Shelf cake (ADD~ i-
cation to Intervene) I.C.J. Reports 1984
Paragraph 37. p. 23.
2. Ibid. Paragraph 3. p. 24. 1.5. The Special Agreement constitutes above
al1 the means by which the consent of the
Parties to the judicial settlement of the di,spute
1 between them is expressed; in this sense. it is one
of the means through which it is possible to comply
with what the International Court of Justice has
described as the fundamental principle which
establishes that the jurisdiction of the Court to
hear and decide a dispute depends on the consent of
the Parties (3). But the Special Agreement equally
serves to define the questions in respect of which
the Parties have decided to have recourse to a judicial
settement and. consequently, the questions which the
Court has jurisdiction to decide. In other words.
it is the Special Agreement that permits the
determination of precisely what are the questions
which the Parties have agreed to submit to the Court
and. at the same time. the definition of the extent
of the jurisdiction of the Court.
1
1.6. Although the Court does indeed have a certain
amount of scope to define the conclusions
formulated by the Parties in a matter brought before
it as the result of a unilateral claim, in the case
of a matter brought before it by Special Agreement
the Court takes great care not to exceed the objectives
of the litigation which the Parties have defined in
that Special Agreement for the sïmple purpose of
avoiding making pronouncements on questions which
the Parties have not submitted to it. The Permanent
~-~ ~ ~
3. Ibid. Paragraph 34, p. 31.Court declared in the Lotus Case (4):
"having obtained cognizance of the present case by
notification of a special agreement concluded between
the Parties in the case. it is rather to the terms
of this agreement than to the submissions of the
Parties that the Court must have recourse in
establishing the precise points which it has to
decide. "
More recently. the International Court of Justice
has stated that it attributes great importance to
the element of the wishes of the States, expressed
in a Special Agreement or other instrument which
establishes jurisdiction, for the purpose of defining
the scope of a dispute submitted to the Court
(59.
1.7. In the 1ight of these general considerations
which have been recalled, it is now possible
to return to consider each of the two questions in
respect of which the Parties have asked the Chamber
to pronounce a judgement.
1.8. It emerges from the analysis of the terms
of the Special Agreement and of the relevant
provisions of the General Peace Treaty of 1980 that
the first question submitted to the Court concerns
the land frontier between the two countries. This
anaylsi s equal1y demonstrates that the Parties have
taken full account of and have adopted the distinction,
which is generally accepted at the present time.
4. P.C.I.J. SeriesA, No 10. p. 12.
5. Libva-Malta Continental Shelf Case (Ap~li-
cation to Intervene) I.C.J. Reports 1984
Parayraph 46, p. 28. between the delimitation of a frontier. a juridical
and political operation which fixes the line of the
frontier in principle, and its demarcation. a material
and technical operation which consists in carrying
out on the ground the terms of the delimitation that
has been established. The delimitation of the frontier
between El Salvador and Honduras was established in
part by the actual General Peace Treaty of 1980 in
'Article 16thereof; the sectors of the 'frontier not
so delimited expressly by that Treaty had to be
delimited subsequently, either by agreement of the
Parties or. failing that. by the International Court.
of Justice. The demarcation of the frontier had to
be carried out immediately by the Joint Boundary
Commission in the case of the sectors of the frontier
delimited by the Treaty; immediately after the
agreement in question in the case of the sectors of
the frontier delimited by a subsequent agreement
between the Parties; and. by virtue of Article 6 of
the Special Agreement. not later than three months
after the Judicial decision in the case of sectors
of the frontier delimited by the International Court
of Justice.
1.9. The second objective of 'the litigation
submitted to the Chamber is of a totally
different naturé. It has nothing to do with the land
frontier between El Salvador and Honduras but rather
with islands and maritime spaces; and. contrary to
what has been provided by the Parties in the case
of the land frontier. here the only matter in issue
is "the determination of the juridical status". there
being no issue either of delimitation or of
demarcation. Thus a radical difference has beenestablished between, on the one hand, the aspects
of the dispute concerned with the land frontier. in
respect of which the Chamber is asked to "delimit
the line of the frontier". and. on the other hand.
the aspects of the dispute concerned with the islands
and the maritime spaces, in respect of which the
Chamber is asked to "determine the juridical status".
1.10. The provisions of the General Peace Treaty
of 1980 fully confirm this analysis. In
Title IV of the Treaty, Chapter 1 (concerning the
frontier already defined). Chapter III (concerning
the demarcation of the frontier already defined).
and Chapter IV (concerning the demarcation of the
frontier not as yet defined) are al1 referable to
the land frontier, in respect of which they contemplate
its delimitation and demarcation. On the other hand,
in relation to the islands and the maritime spaces,
the Treaty refers to a quite different concept. that
of the determination of their juridical status. In
this respect, Article 18 is of particular interest
in that it charges the Joint Boundary Commission with
the following functions (emphases added) :
"1". The demarcation of the frontier l'ine described
in Article 16 of the Treaty;
"2". The delimitation of the frontier line in the
sectors not described in Article 16 of the Treaty;
"3". The demarcation of the frontier line in the
disputed zones, once the delimitation of that line
has been concluded; and
"4". The determination of the juridical status of
the islands and of the maritime spaces."
In relation to the judicial settlement. ~rticle 31
contemplates such a procedure in the event that, uponexpiry of the time limit therein indicated:
"No agreement has been reached as to the disagreements
over the frontier in the disputed sectors, over the
juridical status of the islands, or over the maritime
spaces".
In respect of the islands and the maritime spaces,,
there is no question in the Treaty either of their
delimitation or of their demarcation but merely of
the determination of their juridical status.
1.11. The preceding discussion makes it possible
to define with precision the objectives
of the 1itigatio.n and, consequently. the scope of
the function of the Chamber.
1.12. The concept of the delimitation of the land
frontier does not give rise to any
difficulties. The Chamber has been entrusted with
the task of carrying out a judicial delimitation.
which the Parties will subsequently complete, in
accordance with Article 6 of the Special Agreement,
by a demarcation on the ground.
1.13. The concept of the 'determination of the
Juridical status is easy to define in so
far as the islands are concerned. The Chamber is calléd
upon to decide if the sovereignity over the islands
in the Gu1 f of Fonseca belongs to El Salvador or. to
Honduras. the determination of which does not involve
either a delimitation or a demarcation. So far as
the maritime spaces are concerned. the Parties have
not asked the Chamber either to trace a line of
delimitation or to define the Rules and Principles
of Public International Law applicable to adelimitation of maritime spaces, either inside or -
outside the Gulf of Fonseca. The dispute between El
Salvador and Honduras is concerned with the juridical
nature of the relations of the two countries over
the maritime spaces concerned. more precisely. with
the juridical status of the waters in the interior
of the Gulf of Fonseca and with the existence or
non-existence of any rights of the two countries in
respect of the maritime spaces situated outside the
closing line of the Gulf.
1.14. The Memorial of Honduras indicates that
(6)
in the Joint Boundary Commission proposals
relating to a delimitation were put forward on the
part of El Salvador in respect of the waters of the
Gulf. If this is an argument intended to support a
contention that the Chamber has jurisdiction to carry
out a delimitation of the maritime spaces, as the
Memorial of Honduras indeed subsequently insinuates
any such argument is simply unfounded. It is
(7)'
possible during the meetings of a Joint Boundary
Commission to formulate conciliatory proposals and
to' accept solutions, even solutions of non-juridical
nature. Indeed Honduras' made extremely clear in the
Joint Boundary Commission that these proposa1S. for
direct negotiation were made:
".sansque celles-ci ni les corrélatives que le Honduras
espére que le Salvador formulera .... compromette
la position que, du point de vue juridique, defendent
6. Memorial of Honduras: p. 5.
7. Memorial of Honduras: p. 90.les deux pays. Ce sont des propositions qui .... no
compromettent pas les fondements des droits que les
parties se attribuent"
The Memorial of Honduras also affirms that the
(9)
Chamber is called upon to carry out the task of
carrying out a juridicàl classification of the waters
inside and outside the Gulf of Fonseca and.
additionally, the task of carrying out a delimitation
of these waters. However, the task of carrying out
a delimitation. entrusted to the Chamber in respect
of the disputed areas of the land frontier? has simply
not been entrusted to the Chamber in so far as the
maritime spaces are concerned.
1.15. rt appears almost unnecessary to reiterate
that the interpretation of Article 2 of
the Special Agreement cannot in any way be affected
by the simplified and abbrrviated formula utilized
as the Title of the Special Agreement in Spanish:
"Compromise .... para someter a la decisi6n de la
Corte Internacional de Justicia la controversia
fronteriza terrestre. insular Y maritirna existente
entre los dos Estados"
This Spanish version was subsequently translated int0
the following. English version in the Notification
of the Special Agreement sent jointly to the Court
by the two Governments on 1l.December 1986:
"Special Aareement .... to submit the land. island
and maritime frontier disaute between the two States
to the International Court of Justice"
8. Memorial of Honduras:.Annexes: p. 858.
9. Memorial of Honduras: p. 6.In the original Spanish version the word "fronteriza"
(frontier) applies only to the two words between which . .
it is situated "controversia" (dispute) and "terrestre"
(1and ); consequently on1y the land dispute
("controversia terrestre") concerns ' a frontier
("fronteriza") and not the island and maritime dispute
("controversia .. . .insular y maritima"). It is by
virtue of a simple error in translation that in the
English version the word "frontier" appears to apply
not only to the "land .... dispute" but also to the
"island and maritime dispute".
1.16. AS has already been stated in the Memorial
of El Salvador (10), to apply the concept
of "frontier dispute" to the "island dispute". would
additionally 1ead to a manifestly absurd and'
unreasonable result,since the dispute over the islands
concerns the sovereignity of each island as a whole;
the dispute has never concerned. either in the past
or in the present. any question of any interna1
delimitation of any of the islands in dispute with
a view to the sovereignity of that island being divided
between the two States.
1.17. The. Government of El Salvador has taken
note wi.th satisfaction of the decision
adopted by the court in its order of 8 May 1987
to consider that the use by the Court "for the sole
object of determining the title to be given to the
10. Memorial of El Salvador: Paragraph 1.11..
11. I.C.J. Reports 1987 Paragraphs 5-6, p. 1 1.case" of the terminology adopted by the Parties in
their joint letter of 11 December 1986 is "without
prejudice to the appropriate interpretation of the
provisions of the Special Agreement which define the
subject matter of the dispute". that is to Say the
appropriate interpretation of Article 2 thereof, which
is the provision which defines "the questions submitted
for decision". As the Court declared in the Libya-
Malta Continental Shelf Case ,-
(12):
"Since the jurisdiction of the Court derives frOm
the Special Agreement between the Parties. the
definition of the task so conferred upon it' is
primarily a matter of ascertainment of the intention
of the Parties bv interpretation of the Special
Agreement. The Court must not exceed the jurisdiction
conferred upon it by the Parties. but it must also
exercise that jurisdiction to its full extent."
(emphasis added)
1.18. In consequence,.the interpretation of Article
2 of the Special Agreement in the manner
expounded in this Chapter. that is to Say applying
the normal meaning which should be attributed to the
terms employed in the context and in the light of
the objectives and ends of the Special Agreement,
is.what defines the. objectives of the litigation and
the functions.of the Chamber.
12. I.C.J. Reports 1985 Paragraph 19, P. 23. -
CHAPTER II
THE LAW APPLICABLE TO
THE DELIMITATION OF THE DISPUTED LAND FRONTIER
2.1. It seems at first sight that the points
of view of the two parties coincide in
respect of the Principles of Public International
Law which are applicable to the delimitation of the
disputed land frontier. Both envisage the application
of the fundamental principle of uti ~ossidetis iuris
and' both accept as the critical date the year 1821,
the date of the independence of central America.
2.2. However. this apparent coincidence of views
conceals a radical disagreement both in
relation to the force and validity that should be
given to the Forma1 Title Deeds to Commons ("Titulos
Ejidales") ,as a .firm and decisive proof of uti
possidetis iuris and in relation to the manner in
which such orm m altle Deeds to Commons should be
..
interpreted and applied.
2.3. The position of Honduras in relation to
the greater part of the disputed sectors
is based on a supposed distinction which the Memorial
of Honduras formulates in the following manner (1):
"la distinction entre le conflit sur les limites de
terre entre deux communautés et le différend sur les
limites territoriales entre les deux Républiques".
1. Nemorial of Honduras: p. 198Honduras argues that . the secular disputes between
the indigenous communities as to their boundaries
should be separated from and made quite independent
of the delimitation of international frontiers and
that the boundaries of the lands of an indigenous
community indicated- by the boundary markers and
boundary Stones set out in the Forma1 Title Deeds
to the Commons of these indigenous communities "ne
coïncident pas necessairement avec les limites du
territoire national sur lequel' se trouve cette
communaute" (2).
2.4. On the other hand, the position of El
Salvador, as is indeed repeatedly recognised
by the Memorial of Honduras (3), is that the present
litigation as to the line of the frontier ought to
be decided on- the basis that the land boundaries
defined by the Forma1 Title Deeds to the Commons of
the indigenous communities, which include the Royal
Landholdings situated within the same jurisdiction,
are absolutely identical wlth the infernational
boundaries of the territories of each State.
2.5. This difference of opinion is the crucial
issue. in this litigation as to the disputed
land frontier; El Salvador insists that the position
of Honduras is not consistent with the correct
interpretation of the fundamental principle of &?J
2. Memorial of Honduras: p. 200.
3. Memorial of Honduras: pp. 211-212, 256 &
267-268.possidetis iuris and that in addition the supposed
distinction proposed bv Honduras, although it could
conceivably have been discussed in the initial period
of the dispute from 1861 until 1880, has at the present
time been wholly abandoned and is indeed superseded
by the principles laid down by the Parties for the
purpose of deciding this. present frontier dispute.
hé twse points wiiï'be considered in turn. *.
1. The Correct Interpretation of the Principle of
Uti Possidetis Iuris in relation to Forma1 Title ~eeds
to commons
2.6. The correct significance of the Principle
of uti ~ossidetis 'iuris was defined with
complete precision in the judgement of the Tribunal
which decided the Arbitration between Guatemala and
Honduras in a passage transcribed in the Memorial
of Honduras (the quotations from- this passage
(4)
which follow are taken from the original judgement
(which was produced both in ~nglish and in Spanish)
rather than from the French translation thereof used
in the Memorial of Honduras). The principal underlying
premise of the reasoning of the Tribunal is contained
in the following passage (5)
"The ownership of the Spanish monarch had been
absolute. In fact and law, the Spanish monarch had
been in possession of al1 the territory of each [of
4. Memorial of Honduras: pp. 140-142.
5. Guatemala-Honduras Special Boundary Tribunal:
Opinion and Award (Washington. D.C. (1933))
p. 6.
2 the Parties to the litigationl. Prior to independence.
each Colonial entity being simply a unit of
administration in al1 respects subject to the Spanish
King. there was no possession in fact or law. in a
political sense, independent of his possession."
1
The subsidiary underlying premise of the reasoning
of the Tribunal is contained in the passage immediately
following that set out above (6):
"The only possession of either colonial entity before
independence was such as could be ascribed to it by
virtue of the administrative authority it enjoyed."
The necessary corollary of both these premises, set
out in the passage immediately following that set
out above. is that (7):
"The concept of "uti ~ossidetis of 1821" thus
necessarily refers to an administrative control which
rested on the will of the Spanish Crown. For the
purpose of drawing the line of "uti ~ossidetis of 1821"
we must look to the existence of that administrative
control. Where administrative control was exercised
by the colonial entity with the will of the Spanish
monarch, there can be no doubt that it was a juridical
control, and the line drawn according to the limits
of that control would be a juridical line."
Consequently, the Tribunal concluded that, in
(8)
order to trace the line of "uti ~0ssidetis of 1821".
"We are to seek the evidence of administrative control
at that time."
2.7. And in the search for this administrative
control, it'is necessary to take into account
a quite fundamental consideration. Once a particular
6. Ibid. p. 6.
7. Ibid. pp. 6-7. '
8. Ibid. p. 7.Commons had been adjudicated to a particular
settlemept. it is unquestionable that the
administrative control over the whole of these communal
lands came to be exercised by and from the jurisdiction
appropriate to the particular settlement benefitted.
This occured absolutely automatically even when. at
the time of the measurement of the Commons in question.
the whole or some part of the lands judicially
adjudicated, were comprised within the jurisdiction
of the adjoining Province. For example. it was the
"Alcalde" (Mayor) and the "Cabildo" (Corporation)
of Citala and, through them. the "Alcalde" of San
Salvador. who acquired admi'nistrative control over
the whole of the area adjudicated to Citala as Commons.
2.8. The reason for this "administrative control"
was that the communal character .of the
Commons made necessary a stGict and continuous local
administrative control in order to avoid any
fundamental alteration of the nature of the institution
through the implantation of any individual private
properties. The Commons. by reason of its very own
particular nature. necessarily remained subject to
the administrative control of the authorities of the
town or locality to which it had been adjudicated
in a continuous and constant form with the object
of avoiding the introduction of individualistic
fendencies by means 'of the sale or lease of these
lands. actions which were of course prohibited.
2.9. Ots Capdequi in hiswork entitled "Historia
del Derecho Espaaol en America y del Derecho
Indiano" States in his chapter entitled "The Communal
Property: the Municipal Corporations and the regime of landholding" ("Los bienes comunales: los Cabildos
Municipales y el regimen de tierras" in the original
Spanish text) (9.):
"The juridical regulation of th'e communal utilisation
of the Commons .... was the task of the Municipal
Corporations with the obligatory supervisory control
of the superior authoyities".
2.10. In Law II, Title XXI, Book VII, of the
"Novisima Recopilaci6nW, . the King of Spain
ordered that "al1 the Commons ... .which are taken
and occupied by any person whatever in his own'name
and right or through our charters. must subsequently
be restored and returned to the Councils whose propertv
thev were and are" (emphasis added).
2.11. "Las Ordenanzas de Descubrimiento y Nueva
Poblaci6n" of 1573. referred. to in the
Memorial of El Salvador required and presupposed
(10)'
, the administrative control of the local authority
in question with the object of not prejudicing the
indigenous communities.
2.12. The same occured with "La ~ecopilaci6n de
las Leyes de Indias" of 1680. also referred
to in the Memorial of El Salvador (11)' since the .
Spanish colonial regime, following the counsels of
Francisco Vitoria, established Shat "the Christians
cannot take possession of the properties of the
9. O~.cit. p. 240.
10. Memorial of El Salvador: Paragraph 4.7..
11. Mernorialof El Salvador: Paragraph 4.10. Indians".
2.13. The "Real Decreto" of 19. September 1798
enacted by King carlos IV of Spain and the
"Decreto" of the Spanish Parliament of 13 September
1813 reiterated the necessity of preserving the
communal character of the Commons.
2.14. This continuous. administrative control
emerged from the Forma1 Title Deeds
themselves. as in the case of the Title Deed to the
Commons of Polor6s in 1760. which contains in its
final section the following passage (this passage
is cited in the Annexes to the Memorial of Honduras
translated into French, in which form it is also
(12)
cited here):
"étant entendu que ces terres ne pourront etre vendues
ou alienées en totalite ou en partie sous quelque
pretexte que ce soit et en cas d'extinction du village
en question. ces terres devraient retourner au
patrimonie royal et dans ce cadre. ils peuvent y
construire des maisons d'habitation. qu'ils fixent
.du betail. des enclos, des murs, des fermes y autres
edifices necessaires, semer toutes plantes de castille
ou de la terre, avoir et &lever du betail grand et
moindre. des betes de somme et des chevaux .... et
j'ordonne et je commande a chacun des alcades
ordinaires de la ville de San Miguel que sur requete
présentee avec le present titre par les indiens de
Poloros, ils les aident dans la possession de ces
terres concedees. leur bois, leurs eaux et leurs
paturages et leurs abrevoirs et tout ce qui en fait
partie de fait et de droit, comme je le fais par la
presente. sans accepter qu'ils en soient depossedes
en partie ou en totalité San etre .d'abord entendu
en justice ...."
12. Memorial of Honduras: Annexes: p. 1587. 2.15. In the light of these provisions, there
is no room for the distinction advanced
by Honduras as the basis of its territorial claims
between, on the one hand, disputes between indigenous
communities over Commons land and, on the other hand,
disputes between States over international frontiers.
~f al1 or part of the Commons adjudicated to Citala
in the measurement of 1776 carried out in Tecpanguisir.
or if the Commons adjudicated to Perquin and Arambala
in the measurement of 1769 (subsequently confirmed
in 1815). lands identified as such by the Memorial
of Honduras as far as the Cerro de la Ardilla. or
if the Commons adjudicated to Polor6s in the
measurement of 1760 as far as the Cerro de Rivita
and the Cerro de L6pez had remained under the
administrative control of the Colonial Province of
Honduras after the dates of their respective
adjudication, these lands would simply have ceased
to be the Commons of Citala. of Perquin and Arambala.
and of Polorbs respectively.
. 2.16. It is an incontrovertible fact that. in
executing Forma1 Title Deeds to Commons.
the "Jueces de Tierras" (Land Judges) of the "Real
Audiencia de Guatemala" (~upreme civil Tribunal of
Guatemala) were able, both as a matter of fact and
as a matter of law. to adjudicate as Commons both
lands which crossed over the former provincial
frontiers and lands well beyond those borders.
-
2.17. In the Conference held at Guanacastillo
in 1888 the delegation of Honduras recognised
that "sous le regirne unitaire de l'epoque de la'
Colonie. il n'etait pas rare que les Autorites superieures qui résidaient au Guatemala. aliénassent
à n'importe quel titre, des terres appartenant aux
Provinces, au benéfice de villages qui n'étaient pas
compris dans leur juridiction; comme exemples immédiats
.... les "ejidos" concedes A Arambala et Perquin sur
la rive droite de la riviere Negro" (13)'
1
2.18. In the Memorial of Honduras (14), the power
of the competent judi.cia1 authorities. the
"Jueces de Tierra" to cross over the former provincial
frontiers in their adjudications' is questioned on
the basis that such an act would have required an
alteration of provincial boundaries by means of a
"Real Cedula" (15). ,he reality is that this argument
takes no account of the fundamental argument relating
to the all-embracing power of the Spanish Monarch
to modify as he pleased the boundaries of his colonial
possessions (16)' The 1ta1ian commentator Fiore
13. Memorial of.Honduras: Annexes: p. 237
14. Memorial of Honduras: pp. 315-316.
15. Memorial of Honduras: p. 315.
16. A document from the "Archivo de Indias"
dated 1774 transcribed by Samuel Duran
Bachler in "La Doctrina latino-americano
del uti possidetis" (Concepci6n. Chile
(1977)) States in old Spanish:
"Savida cosâ es que en el soberano perma-
nece y subsiste siempre expedita, la potestad
de ser arbitro en mudar y alterar las leyes;
dividir virreynatos y provincias; establecer
jurisdicciones; desmembrar de las ya formadas
las que tenga por conveniente; y en una
palabra. con causa O sin ella, dar movimiento
a 10 legal. gubernativo y politico. Sin
conocer superior ni limites a su supremademonstrates (17) that the Spanish sovereign enjoyed.
by virtue of the right of exclusive dominio to which
he was entitled over his colonial possessions, complete
autonomy in the regulation of the administrative regime
of these colonies. being able to constitute "Capitanias
Generales", "Audiencias". "Residencias". "Virreinatos".
to determine what territories should be included within
each administrative area. and to establish the
boundaries and the divisions of these areas. This
is confirmed by the judgement of the Tribunal which
decided the Arbitration between Guatemala and Honduras
which stated in similar vein that "The Crown
(18)
was at liberty at al1 times to change its royal
commands or to interpret them by allowing what it
did not forbid".
2.19. Further if. as is claimed by the Memorial
of Honduras (19), a "Real Cedula" is required
potestad". -
(English translation) "It is a well known
fact that in the Sovereign there remains
and- exists always available the power to
be arbiter in promoting and altering the
laws; in dividing viceroyalties and pro-
vinces; in establishing jurisdi.ctions; in
separating from those already formed those
that he regards as convenient; and. in one
word. with or without cause. in bringing
about changes in legal, governmental and
political matters without being subject
to any superior or to any limitation to
his supreme power. "
Revue Genet-alede Droit public 119101 p. 251.
Guatemala-Honduras Special Boundary Tribunal:
Opinion and Award (Washington. D.C. (1933))
p. 7.
Memorial of Honduras: p. 315.for the Spanish Monarch to delegate his absolute power
to modify jurisdictions to the "Jueces de Tierra"
of the "Real Audiencia, such a delegation emerges
from the two "Reales Cédulas" enacted in -El Pardo
on 1 ~ovember 1591, which were later on incorporated
into the "Recopilaci6n" (these "Reales Cedulas" are
transcribed in the Annexes to the Memorial of Honduras
. . . By means of these "Reales Cedulas" the ~panish
(20) -.
Monarch, worried by the fact that "les plus grande
parties des meilleures terres ont @té occupees sans
que les municipalit6s et les indigènes ne possedent
ce dont ils ont vraiment besoin". ordered the
restitution of the lands improperly acquired by the
Spanish colonialists and their subsequent
redistribution, "tout en réservant le nécessaire pour
ejidos, biens communaux, paturages et terrains en
friche des hameaux et municipalites" and so forth.
with the objective of "distribuant entre les indigènes
les terres suffisantes pour leurs semences et @levage.
leur confirmant ce qu'i 1s possèdent .aujourd'hui et
ce dont ils auront besoin demain". With these
objectives, the Spanish Monarch gave the necessary
authority to the "Real Audiencia" by providing that
"tout ce qui sera fait par vous je l'approuve et
confirme conformement à cette Real Cedula" (21)'
II. The Abandonment and Supercession of the Distinction
~dvanced by Honduras
2.20. ~t is possible that at an early moment in
20. Memorial of Honduras: Annexes: pp. 1964-1966.
21. . Memorial of Honduras: Annexes: p. 1966. the boundary negotiations between El Salvador
and Honduras, such as for example the Conference held
at the Montana del Mono in 1861, the distinction
advanced by Honduras between, on the.one hand, disputes
between indigenous communities over Commons land and,
on the other hand,- disputes between States over
international frontiers might have been discussed'
as a 'possible principle. This would explain, for
example. the phrase in the communication of 14 May
1861 upon which the Memorial of Honduras wishes to
base its claims However. this distinction,
(22)'
included. in Article -6 of the Treaty of Arbitration .
of 18 December 1880 did not survive the
(23)'
extinction of this Treaty .when the Parties accepted
the withdrawal of the President of Nicaragua. who
declined to emit the Arbitration Award which had been
requested (24). As early as 1880. Francisco. Cruz.
in his report of 28 June of that year. observed.
anticipating the. terminology which was subsequently
to be adopted by the judgement of the Tribunal which
decided the Arbitration between ~uatemalh and Honduras,
that "1 'affaire se keduisant à une question de contrdle
de terrains communaux en ce qui concerne le Salvador,
et a une question de juridiction nationale en ce qui
concerne 1e on du (eamshasis added)
(25) '
2.21. What happened is that, very quickly, it
22. Memorial of Honduras: p. 200.
23. Memorial of Honduras: Annexes: p. 164.
24. Memorial of Honduras: Annexes: p. 164.
25. Memorial of Honduras: Annexes: p. 109. came to be understood that this distinction,
which would have resulted in the placing of the Commons
of, for example. Perquin and Arambala under the
political sovereignity of Honduras, did not have the
slightest possibilty of leading to a just and pacific
solution of the acute conf 1icts then existing. The
awareness of the practical impossibility of such a
result arose, for example. from the not unfounded
fear that- the sovereign authority in question might
demonstrate hostility or might favour the communities
of its own country to the detriment of the communities
of its adversary by, for example, imposing taxes solely
on the latter (26)' This was the fundamental reason
which led to the rejection of the distinction
(27) '
2.22. The other difficulty which made it impossible
to resolve the secular conflicts on the
basis of the distinction proposed by 'Honduras is that
it is not possible. either as a matter of fact or
as a matter of law, to put the possession of a Forma1
Title Deed to. Commons on the same level as the
possession of a title conferring merely a private
proprietary interest in land upon a foreign landowner.
This is because. as has already been seen. a Forma1
Title Deed to Commons requires and presupposes .the
administrative control of the authorities of the
locality to which the Commons in question has been
26. Memorial of Honduras: Annexes: pp. 238 &
154.
27. Records 'of the Conference of Guancastillo
in 1838.. transcribed in the Memorial of
Honduras: Annexes: p. 238.adjudicated
2.23. To give an idea of the insoluble poblems
which' would have been provoked -bY placing
Commons belonging to a settlement of El Salvador under
the political jurisdiction of Honduras, or vice versa,
as if what was 'involved was merely a private
proprietary interest in land held by a foreign
proprietor. it is appropriate to make a comparison.
This comparison is not strictly exact and should not;
consequently, be taken too literally. but it does
produce an idea of the underlying reasons which led
to the abandonment of the formulas for a solution
envisaged during 'the negotiat ons at the Montana del
Mono in 1861 and. at the conference of Nahuaterique
in 1869. It is as if, in order to resolve by means
of a compromise a dispute between States over
international frontiers, it had been proposed to place
a national asset of public utility. such as a square.
under the ownership of one of the States but subject
to the political jurisdiction of the other State.
2,24. . The abandonment of the distinction which
Honduras now wishes to reintroduce was
confirmed in the negotiations between Cruz and LetOna
in 1884. These negotiations have much greater
significance than the others which have taken Place
between the Parties for the simple reason that they
are the only ones which have ever prospered
sufficiently to lead to the production of a Treaty
signed by Plenipotentiaries of both States; indeed,
the.Memorial of Honduras seeks to rely on such Parts
thereof . as are in favour of the claims presented therein (28). Although this Treaty was not in the
end ratified by Honduras, the existence of the Treaty
prevents Honduras from claiming to be unaware of the
1 existence of certain facts which were duly documented
in the Conferences held by the two Plenipotentiaries.
-
2.25. The International Court of Justice in the
Frontier Lands Case. reached this conclusion
in relation to the unratified Convention of 1892
between Bedgium and the Netherlands, stat ing that.
although this Convention did not create either rights
or obligations, its terms and the contemporary events
demonstcated that in that epoch Belgium had affirmed
its soLereignity over the two pieces of land and that
the Netherlands had not been unaware of that (29).
2.26. In the same way. certain undeniable facts
emerge from the Conferences held by Cruz
and Letona and from the final text of the Treaty agreed -
between -them. The first. and most important. is that
from that moment the impracticable distinction between.
on the one hand, disputes between indigenous
communities over Commons land and, on the other hand,
disputes between States over international frontiers
was abandoned. The second is tliat the negotiators
agreed to act in the same manner as would a judge.
that is to say to study the documents presented by
each Party and to determine which document ought to
be given preference in relation to each issue in
28. Memorial of Honduras: pp. 369-371.
29. I.C.J. Reports 1959 p. 229.dispute..'And the third is that the negotiators carried
out a persona1 inspection of the disputed sectors
and decided that the demarcation of the boundary,which
was established should be marked out by the surveyors
who accompanied them. (30) The practical consequence
of these decisions of principle was that Cruz and
Letona, acting .together, required the Municipal
~orporations of al 1 the towns and vi 1lages situated.
near the froritierto appear before them and duly fixed
the line of the frontier after having examined the
Forma1 Title Deeds of their respective Commons and
communal lands. It was as a result' of this process
that Cruz concluded that the Titles of Polor6s (31)
and of Perquin and Arambala (32) "establish permanent
landholdings of traditional accuracy"
(33)'
2.27. Neither is it correct to state that the
Conferences held at.the time of the signature
of the Cruz-Letona Treaty have subsequently been
ignored. The Boundary Convention of Tegucigalpa. signed
on 18 September 1886 (34), while indeed containing
in Article VI thereof the provision relied on in
support of this argument by the Mernorial, of Honduras
to the effect that the status auo then agreed upon
would not take in account the frontier line established
by Cruz and Letona, did on the other hand provide
30. These decisions were al1 taken at their
Second Conference. .
31. ~t'the Second Conference
32. At-the Fourth Conference
33. Memorial of El Salvador: Paragraph 4.21.
34. Memorial of Honduras: Annexes: pp. 222-223.in Article 1 thereof that:
"Les Gouvernements de Honduras y du Salvador nommeront
chacun, un Avocat et un Arpenteur afin que. vu le
procès-verbal des confèrences qui se sont deroulees
entre Messieurs Francisco Cruz et Monsieur le General
Lisandro Letona. et les differents documents qui leur
seront presentes par l'une et l'autre partie, ils
determinent quelle doit etre, la frontiere entre les
deux Re~ubliques" (emphases added).
2.28. The Memorial of Honduras, in its attempt
to discredit itk own negotiator, Francisco
Cruz. insists on drawing attention to certain
discrepancies between the arguments presented by Cruz
to the Arbitrator of- Nicaragua and the frontier line
which he subsequently accepted as the result of his
Conferences with the negotiator representing El
Salvador. However such discrepancies are inevitable
if the different circumstances in which Cruz was acting
are taken into account; before the Arbitrator of
Nicaragua. he was appearins as the advocate of one
of the Parties and arguing on the basis of Article
VI of the Treatv of Arbitration of 1880, which accepted
the distinction which Honduras is now seeking to
reintroduce; in the Conferences with the negotiator ,
representing El Salvador, his r6le. as described in .
D
the forma1 records of the Conferences, was of a quasi-
judicial nature in that he was examining and assessing
the Forma1 Title Deeds presented by each locality.
having already discounted as impracticable the idea
of placing the Commons of one indigenous communi ty
under the sovereignity of the otherstate.
2.29. In any event. the principal argument utilised
by Cruz inr his arguments before the
Arbitrator. the President of Nicaragua. was not thedistinction between. on the one hand. disputes between
indigenous communities over Commons land and. on the
other hand, disputes between States over international
frontiers, but rather the invocation of the concept
of the "natural frontier"
(35) ' This argument. which
appears on a number of occasions in the Memorial of
Honduras and the Annexes thereto has for present
(36)'
purposes to be rejected out of hand. Neither in the '
Special Agreement nor in the General Peace Treaty
of 1980 is the Chamber given authority 'O establish
the line of the frontier on the basis of what
constitutes the best "natural frontier".
2.30. That is not to say that this criterion has
never been employed in the past. Article
II, Paragraph 6. of the unsuccessful Convention of
Arbitration signed on 3 January 1889 autharised
(37)'
the Arbitrator to "establish frontiers which were.
so.fai-as possible, natural frontiers". This provision.
which- is also found in the Games-Bonilla Treaty of
1889 between on du radsNicaragua, was not repeated
in subsequent Conventions (the Convention of 1889
having lapsed as a result of its rejection by Honduras)
(38) ' In any event. it is totally inappropriate and
excessive to compare these wholly explicable attitude
of Cruz with the type of consent given to an
35. Memorial of Honduras: Annexes: p. 143.
36. Memorial of Honduras: Annexes: p. 134 (the
Report by Lazo).
37. Memorial of Honduras: Annexes: p. 270.
38. Mernorialof Honduras: pp. 276-277.inequitable treaty such as that imposed upon a defeated
enemy, and to disqualify him as a negotiator by
accusing him of treason.
2.31. The definitive abandonment of the distinction
which Honduras is now seeking to reintroduce
was confirmed in the Conference of Guanacastillo in
1888. in which Cruz took no part. ~t this Conference
the position of El Salvador was stated in a categorical
form in the following terms (39):
"les "éjidos" en aucun cas ne peuvent @tre confondus
avec les proprietés territoriales acquises par les
Municipaiites à d'autres titre, étant donné qu'ils
sont une institution politique, inhérente. non
seulement au village auquel ils appartiennent, mais
aussi ZI la province donc ils font partie et. que ce
point decoule du Droit public espagnol et a été retenu
dans le Droit de- 1'~mérique Centrale."
To make matters still more clear. the Delegation of
El Salvador added (40):
"les titres des "éjidos" impliquent 1 'exercice d'actes
de souveraineté que les lois préexistantes attribuent
a des fontionnai-res d'une hiérarchie assez @levée.
en géneral gouvernementale. car la natuS. de .l'ordre
administratif correspondant l'exige.
AS can be appreciated, there was described here what
the judgement of the Tribunal which decided the
Arbitration between Guatemala and Honduras was later
on to cal1 (41) "administrative control .... exercised
39. Memorial of Honduras: Annexes: p. 235.
40. Metnorialof Honduras: Annexes: p. 247.
41. Guatemala-Honduras Special Boundary Tribunal:
Opinion and Award (Washington. D.C. (1933))
- p. 7. .... with the will of the Spanish monarch".
2.32. And at this Conference at Guanacasti 110
the ~elegatioh of Honduras, recognising
the absence of any juridical basis for its proposition
that a distinction should be drawn between. on the
one' hand. disputes between indigenous communities
over Commons land and. on the other hagd. disputes
between States over international frontiers, based
its proposa1 not on Public International Law but on
considerations'of equity with the object of arriving
at a compromise of the respective interests of the
Parties. The Delegation of Honduras stated
(42)
"l'affaire de frontière dont il s'agit aujourd'hui
pose le pi.oblème des frontieres nationales et celui
de propriete des "ejidos" ou de terrains communaux
qu'il ne faut pas perdre de vue pour parvenir A une
entente qui soit en accord avec les preceptes de la
justice y à une conciliation qui harmonise tous les
interets. "
2.33. Finally, the argument that is absolutely
decisive for the rejection of the argument
of Honduras is that the provisions which establish
the law which is applicable to this frontier dispute
- Articie 5 of the Special Agreement and Article 26
of the General Peace Treaty of 1980, neither give
any scope, for nor authorise the distinction proposed
by Honduras and. what' is more. do net- mention the
formula whicliwas laid down in Article 6 of the Treaty
of Arbitration of 1880. On the contrary, Article 26
of the General Peace Treaty of 1980 inequivocably
42. Memorial of Hondi~i-as:Aitriexesp. 237. disputed area. the Joint Boundary Commission shall
take as its basis the documents issued by the Spanish
ecclesiastical.any duringr Stheiscolonialoriperiodiviwhich
indicate the jurisdictions or boundaries of territories
or towns" (emphases added).
The principles of 1aw applicable to this litigation
submitted to the Chamber of the International Court
of Justice. and not now to the Arbitration of the
President of Nicaragua. are those established by
Article 26 of the General Peace Treaty of 1980. not
those established by. Article 6 of a Treaty of
Arbitration signed a century before in 1880 whose
provisions have long since totally lapsed.
. .
2.34. The Tribunal which decided the Arbitration
between Guatemala and Honduras could hardly
have stated this proposition more clearly in a passage
which is fully applicable to the present case (apart.
of course. from the different dates of the Treaties
referred to) (43)
The negotiations under the ~reaty of 1914 resulted
in a deadlock. The Parties were at liberty to reach
a new agreement and they did so in the present Treaty
of 1930. This Treaty does not refer to the proceedings
under the earlier Treaties and establishes its own
criteria."
And the-Tribunal added. immediately afterwards (44):
"the Tribunal cannot be deemed to be bound by
proceedings under earlier , Treaties with their
particular requirements."
43. Guatemala-Honduras Special Boundary Tribunal:
opinion and Award (Washington. D.C. (1933))
p. 47.
44. Ibid.. III. The manner in which Forma1 Title Deeds to Commons
ounht to be read and interDreted.
2.35. From the observations that have beewmade.
it follows that what has to be taken into
account in relation to Forma1 Title Deeds to Commons
for the purpose of determining the uti '~ossidetis
iuris are the precise and defined boundaries which
these Title Deeds indicate (45) by virtue of the
boundary markers and geographical features described
therein rather t'hanpaying attention, as the Hemorial
of Honduras argues, to the recitals which these Title
Deeds may possibly contain as to the "ancient frontier"
which formerly divided one Province from another in
the "Capitania General" of Guatemala.
2.36. Consequently, the Forma1 Title Deeds to
Commons ought to be read and interpreted
taking into account what is established in what it
is appropriate to cal1 the dispositive part thereof,
that is to Say the line of demarcation that is fixed
through the boundary markers and geographical features,
and not in relation to the preliminary or declaratory
part thereof, in which on some occasions it is stated
that the adjudication of the Commons has involved
a penetration into the adjoining Province or that
witnesses have made declarations to this effect.
. Notwithstanding statements of this type. the whole
of the area adjudicated as Commons nevertheless passed
45. The verb used in Article 26 of the General
Peace Treaty of 1980 is precisely "indicate"
("sefialar"in the original Spanish text). automatically into the jurisdiction of the area to
which the Commcns were adjudicated and from that moment
remained subject to the administrative control of
1 that jurisdiction.
2.37. For example. both Parties cite in support
of their claims the Forma1 Title Deed to
the Commons of Polor6s of 1760. El Salvador bases
its claim on the fact that this Title Deed fixes as
the most distant boundaries of the Commons of Polor6s
the Cerro de Rivita and the Cerro de L6pez and on
the boundary markers erected in these places as proof
of the fact that the demarcation extended that far
(46)' Honduras, on the other hand, relies on a casual
declaration made by the surveyor who carried out the
measurement to the effect that a sector of the land
included in the measurement and adjudicated to Polor6s
was. prior to the carrying out of the measurement.
within the jurisdiction of Comayagua. a Province which
subsequently became part of Honduras (47)'
2.38. Similarly. in -relation to Nahuaterique.
in respect of which El Salvador relies on
the boundaries set out in the Forma1 Title Deed to
the Commons of Perquin and Arambala of 1815, which
extend beyond the Rio Negro as far as the Cerro de
la Ardilla (48). Honduras. on the other hand, places
emphasis on the fact that in the course of the
46. z Memorial of El Salvador: Paragraph 6.52..
47. Memorial of Honduras: p\ 254.
48; Memorial of El Salvador: Paragraph 6.40..measurement it was stated by some witnesses that the
Rio Negro was the "ancient frontier" which separated
the Province of San Miguel from the Province of
comayagua (49).
2.39. In both these case. the ' demarctaion
established by the Forma1 Title Deed to
the Commons in question prevails over these type of
declarations made incidental1y or in the course of
the evidence as to what was the "ancient frontier"
before the carrying out of the measurement.
2.40. In relation to Tecpangüisir. Honduras has
invoked the argument that in the .Formal
Title Deed to the Commons of Citala of 1776.-the "Juez
principal" (Principal Judge) of the "Real Derecho
de Tierras" (Royal Jurisdiction over Land). Oidor
Arrendondo, accepted that the jurisdiction over Gracias
a Dlos corresponded to the jurisdiction of the Judge
of Cha1,atenango. which for Honduras indicates that
the area of Tecpangüisir was within the Province of
Gracias a Dios in Honduras However, the "Real
(50)'
Audiencia" of Guatemala, with jurisdiction over the
whole of that "Capitanfa General". authorised the
transfei' of this jurisdiction. givin~ the Judge who
carried out the measurement authority to grant to
Citala the enlargement of its Commons. Given that
the "Real Audiencia" of Guatemala thus established
the jurisdiction of the Judge Jimenez Rubio'and that
49. Memorial of Honduras: p. 220.
50. Memorial of Honduras: p. 314.the latter adjudicated the rnountain of Tecpangüisir
to the Commons of Citala, that territory automatically
remained subject to the administrative control
exercised from Citala and from San Salvador and.
consequently, the territory came to belong to the
Province of San Salvador.
2.41. In al1 these cases, the line of demarcation
' established in the Forma1 Title Deed to
the Commons in question is, in accordance with the
principle of uti vossidetis iuris. transformed into
the sovereign title to the territory in question in
accordance with Public International Law and with
Article 26 of the General Peace Treaty of 1980.
2.42. On the other hand, the recitals, incidental
comments or declarations of witnesses made
in the Forma1 Title Deeds to Commons in relation to
the "ancient frontier" of the Provinces. are in no
way able to serve. in the manner argued by Honduras,
as the basis for the delimitation which the Chamber
is obliged to carry out for the simple reason that
these incidental remarks do not indicate precise and
well defined boundaries. The Memorial of Honduras
recognises, for example, that the boundary line which
divided the Departments of Chalatenango and Gracias
a Dios was characterized by "1 'absence d'indication
.... de points geographiques precis", something which
"ouvraient la voie à des interpretations divergentes
de ,la ligne frontière" (51)' In the same manner,
51. Memorial of Honduras: p. 324.Honduras recognises that the application of the
principle of uti ~o~sidetis iuris requires "la
découverte d'un titre colonial suffisamment clair
et arecis pour permettre au juge de tracer une ligne
frontière" (52) (emphasis added).
2.43. In the Arbitration between Guatemala and
Honduras, where similar problems had to
be considered. the Tribunal of Arbitration indicated
in this respect (53):
"~t is necessary again to recur to the fact that while
the evidence shows that on the east the district of
Chiquimula of Guatemala bordered on the district of
Comayagua of Honduras, there is no definition in any
royal rescript of the boundary between these districts.
This lack of definition cannot be deemed to be supplied
by general and ambiguous references.to the territory
which are found in public documents but which do nOt
attempt to describe the boundary line. Thus, references
are found to the district of Chiquimula as bordering
on, or neighboring to, Omoa. But such statements do
not give any precise delimitation."
2.44. The same requirement of explicit boundaries
is formulated in Article 5 of the
Constitution of Honduras of 1965. Making reference
to the definitive solutions of the frontier problem
with El Salvador, it is affirmed that such solutions
must be based "sur la documentation coloniale existante
jusuq'au Isicl quinze septembre mille huit cent vingt
y un. et la documentation posterieure liee au
rearpentage des terrains frontaliers. aui explicite
52. Memorial of Honduras: p. 158.
53. ~uatemala-Honduras Special Boundary Tribunal:
Opinion and Award (Washington, D.C. (1933))
pp. 33-34. les limites des terrains auxquels se referent les
(emphasis added).
titres coloniaux" (54)
2.45. The Memorial of Honduras, in a manner which
is in contradiction wit'h its fundamental
thesis, interprets the Forma1 Title Deeds to Commons
in the way in which El Salvador argues that this should
be done whenever the position of Honduras appears
to be favoured thereby. This is the case, for example.
in the sectors of Zazalapa and La Virtud. In such
cases, without the slightest concern over incurring
in inconsistency, the Memorial of Honduras proposes
as the 1ine of the frontier the demarcation established
by the successive boundary markers and geographical
features.
2.46. Honduras did exactly the same before the
International court of Justice in the ~ase
concernina the Arbitration Award of the Kina of S~ain
between Nicaragua and Honduras, in relation to the
measurement of the Sitio de Teotecacinte. In this
case. Honduras cited. in support of the validity of
the decision of the Arbitrator. that the boundary
had been fixed exactly on the basis of the area
traversed in the measurement of Sitio ,and, in
.
particular. on the fact that the Forma1 Title Deed
situated the final point of Sitio in Cruz sin Brazo
'and it is, consequently. as from this point that.
in accordance with the intention clearly expressed
by the Arbiter, there should be established the line
54. Memorial of Honduras: Annexes: p. 30.of demarcation. Honduras added that the clear intention
of the Arbitrator had been that the line .of the
frontier should coincide with the entire measurement
of Sitio (55)' Further in the oral argument of
Honduras, one of its advocates, Professor Briggs.
added (56):
"The Award, therefore. delimited a frontier line ...
with a detour to follow the demarcation of the Sitio.
" .... the last point. mentioned by the surveyor is
the south-western extremity of El Sitio.
.,
.... the point of departure for the Portillo should
be Cruz sin Brazo simply because the surveyor stated
that he completed plotting the Sitio at that point."
2.47. This form of interpreting the Forma1 Title
Deed and the measurement recorded therein
was indeed accepted by the International Court of
Justice. which ratified the decision of the King of
Spain as Arbltrator and, consequently. ratified his
manner of reading and interpreting these Forma1 Title
Deeds in a manner which coincides with the arguments
now produced by El Salvador. The Court stated
(57):
,.... the line will follow the direction which
corresponds to the demarcation of the Sitio of
Teotecacinte in accordance with .the demarcation made
in 1720 to terminate at the Portillo de Teotecacinte
in such manner that the said Sitio remains wholly
within the jurisdiction of Nicaragua."
55. I.C.J. Pleadings: Vol. 1.: p. 543. See also
the arguments of the Advocate of Honduras,
Professor Guggenheim: o~.cit.: Vol. II:
p. 196 et sea..
56. I.C.J. Pleadings: Vol. II: pp. 209 & 210.
57. I.C;J. Reports 1960 p. 216. CHAPTER III
THE SECTORS OF THE LAND FRONTIER IN DISPUTE
1. Tec~anaüisir Mountain
3.1. In this sector, there arises in -the purest
possible form the central and most crucial
issue that arises in this frontier dispute. namely
the manner in which Forma1 Title Deeds to Commons
ought to be read and interpreted.
3.2. Both Parties rely on the same Forma1 Title
Deed to Commons, the Deed which in 1776
adjudicated to Citala. in the then colonial province
of San Salvador. Tecpangüisir -Mountain as an extension
to its Commons (1)'
3.3. El Salvador claims that this Forma1 Title
Deed proves conclusively that as from 1776
administrative control over Tecpangüisir Mountain
was, with the consent of the Spanish Crown. exercised
from Citala and. consequently, from San Salvador by
the "Alcaldes" and the other authorities of those
jurisdictions.
3.4. Honduras, on the other hand: has produced
two distinct arguments. In the first place.
Honduras argues that this Formal Title Deed recognises
1. This Forma1 Title Deed is set out in the
Memorial of Honduras: Annexes: pp. 1795-1815. in one of its recitals. that is to say the declaratory
part thereof, that the lands so adjudicated to Citala
"se trouvaient "en province etrangere". C'est-A-dire
qu'elles se trouvaient dans la juridiction de Gracias
a Dios, l'actuelle République du Honduras". It
(2)
has .already been shown. in Chapter II above. that
what matters for the purposes of determining the uti
possidetis iuris is by whom and from where
administrative control over the lands in question.
was exercised as from the date of their measurement
and not in which former colonial province these lands
happen to have been situated prior to the date of
the measurement. The administrative control over
Tecpangüisir Mountain, by virtue of the Forma1 Title
Deed of 1776 and as from that date. was vested in
Citala.
3.5. However. Honduras. also formulates a second
argument as the basis of its claim to
Tecpangüisir Mountain. This argument .is also based
on the Forma1 Title Deed to the Commons of Citala
of 1776 and arises out of an incident that took place
in the course of the execution of this Forma1 Title
~eed .
3.6. The Judge who had been requested to carry
out themeasurement observed that "les terres
1itigieuses se trouvent dans une autre Pr-ovince" and
therefore asked the Principal Land Judge of the
2. Memorial of Honduras: p. 298. See also at
p. 300.Colonial Kingdom of Guatemala "que Sa Seigneurie
augmente mes pouvoirs ou qu'il determine ce que sera
sa decision". The inhabitants of Citalà subsequently
requested this Principal Land. Judge to. amplify the
jurisdiction of the ~udge who had been requested to
act by granting him the necessary jurisdiction to
carry out the measurement. He. on 20 February 1776.
decided to confer jurisdiction on the Sub-Delegate
Judge of the District of Chalatenango. Don Lorenzo
Jimenez Rubio, to carry out the forma1 measurement
of Tecpangüisir Mountain "le notifiant au sous-délegue
de la Province de Gracias a' Dios pour qu'il prenne
connaissance du fait que ce Tribunal Principal s'est
introduit dans le domaine de sa competense". To which
notification the Sub-Delegate Judge of Gracias a Dios
replied that. having seen the order of the Principal
Land Judge of Guatemala "à laquelle j'obeis avec le
plus grand respect apres en avoir pris -acte. et
Monsieur le sous-delegue [Jimenez Rubiol procedera
à ce qui lui a @te demande". And a Note at the end
States "Ainsi je l'ai decide dans ce jugement (auto)
signe en presence de témoins à defaut de notaire.
moi, Don Manuel de Castro juge' sous-delegue du Droit
Foncier Royal de cette Province de Gracias a Dios
et du District de Tencoa, le six mars de mil sept
cent'soixante seize''.
(3)
3.7. There thus took place. in a form which was
3. Al1 these quotations are from the French
translation of this Forma1 Title Deed in
the Memorial of Honduras: Annexes: pp. 1795-
-1815. bot11 decreed by and in accordance with the
law, the transfer of jurisdiction in order to give
jurisdiction to the Judge of Chalatenango. who was
closer to the lands in question. to proceed with the
adjudication of these lands. which was duly carried
out in the manner related in the Memorial of El
Sa1vador (4)'
3.8. The Memorial of Honduras argues that this
transfer of jurisdiction did not modify
in any. way the boundaries of the colonial provinces
since such a modification of boundaries was within
the jurisdiction only of the Spanish Crown and so
required a "Realcedula" (Royal Decree) or an order
of the "Consejo de Indias" (Council for the Indies)
This argument has already been refuted in Chapter
(5)'
II above. where it has been demonstrated that. in
so far *as concerned Commons granted to the indigenous
communities, the "Reales Cedulas" enacted in El Pardo
on 1 November 1591 had delegated to the "Real
Audiencia" (Supreme Civil Tribunal) of Guatemala the
fullest possible faculties to adjudicate and restore
lands to the Indian population. including the power
to ignore and go beyond the previous boundaries of
the colonial provinces.
3.9. The Memorial of Honduras presents a Forma1
Title Deed of a remeasurement in favour
4. Memorial of El Salvador: Paragraphs 4.13. &
6.3..
5. Memorial of Honduras: p. 315of the inhabitants of Ocotepeque carried out in 1816
(6)' However. this Forma1 Title Deed is of no effect
whatever since it merely confirms the Forma1 Title
Deed to the Commons of Citala of 1776. At the time
when the remeasurement of the Commons of Ocotepeque
was carried out, the inhabitants of Citala were
summoned to appear (7)..The Indian "Alcaldes" of the
settlement duly appeared' and presented their Forma1
Title Deed in respect of the measurement carried out
in Tecpangüisir Mountain and al1 the inhabitants
(8)
agreed with what was stated in that Forma1 Title Deed
Consequently, as is stated in the Forma1 Decree
(9) '
of 20 March 1817. the measurement passed "par le côteau
eleve et arrondi de Tepanauizir. aui constitue la borne
de eiidos du villaqe de Citala" (emphasis added)
3.10. In 1881 there took place in La Hermita the
first negotiations between Don Luciano
Morales and Don celestino carranza. the representatives
respectively of El Salvador and of Honduras, "afin
de commencer la délimitation des terrains communaux
de la ville d'ocotepeque et du hameau de la Hermita
du village de Citala, qui delimitent les territoires
des deux Reoubliaues" (emphases added) ( l). AS can
6. Memorial of Honduras: Annexes: pp. 1768
et sea..
7. Ibid. p. 1703.
8. Ibid. p. 1784.
9. Ibid. p. 1786.
10. Ibid. p. 1788.
11. Ibid. p. 124.be seen. at that time the distinction advanced by
Honduras between. on the one hand. disputes between
indigenous communities over Commons land and. on the
other hand. disputes between States over international
frontiers was clearly abandoned. Despite this. it
did not prove possible to reach any agreement on that
occasion. there were annexed to the forma1 records
of these negotiations various documents. including
a Forma1 Title Deed of 1746 in favour of Citala and'
other documents arising out of the withdrawal of Forma1
Title Deeds which had been obtained maliciously by
the inhabitants of Ocotepeque (12) ' This Forma1 Title
Deed of 1740 and others of 1702 and 1704. although
they refer to sectors of the frontier which have now
been delimited and which consequently are no longer
in dispute. contain specific references to the
possession exercised by the Indian population of Citala
on Tecpanguisir Mountain. These titles will be examined
and expounded in the subsequent section of this Chapter
dealina with Las Pilas.
3.11. Given that in 1881 the distinction between,
on the one hand. disputes between indigenous
communities over Commons land and. on the other hand,
disputes between States over international frontiers
was abandoned. it should not be surprising that in
the Seventh Conference between Cruz and Letona that
the delegates, after "examinant les documents
concernant le probl@me de frontiére entre les villages
de Citala. du Salvador et celui d'ocotepeque. du
12. Memorial of Honduras: Annexes: pp. 127-131.Honduras.". agreed to take into account "les donnees
fournies par les documents accreditatifs de la
propriete et possession des terrains de Citala. qui
sont plus anciens." The delegates Cruz and Letona
added at this Meeting that they had also taken into
account "les arpentages realises sur la ligne en litige
en question, par les Arpenteurs. M. le Géneral Cesar .
Lopez. de la part du Gouvernement du Salvador. et
M. Jean B. ~ollart, de la part du Honduras, l'annee
1801. operation oil ils se conformèrent au texte des
documents qui furent presentes à cette date-là. et
principalement, à ceux de Citala qui ont une plus
grande autorite; car, d'après l'enquete effectuee
en 1701. on ordonna de demolir les bornes qu'avait
etablies le Juge d'arpentage, M. Diego cutino, et
de reprendre les dossiers des arpentages realises
par celui-ci; etant donne. que les terrains de
Tepanguisir furent'adjuges Citala, des l'annee 1776,
et que les operations de position et autres procès-
verbaux qui figurent dans les documents de Citala
se realisèrent à la connaissance d'un sous-delegue.
nomme par les Ocotepeques". Cansequently. the two
delegates fixed the line of the frontier in such a
manner as to leave Tecpangüisir Mountain within
Honduras
(13)'
3.12. The Memorial of Honduras' itself recognises
(14) that in the Conferences of 1884 the
Commissioners Cruz and Letona clearly recognised the
13. Memorial of Honduras: Annexes: p. 173.
14. Memorial of Honduras: pp. 300-301.unquestionable value of the documents of Citala (of
1701. 1740 and 1742) and the adjudication of
Tecpangüisir Mountain to Citala in 1776 and therefore
they delimited the line of the frontier in accordance
with these Titles.
3.13. In a similar manner, the Memorial of Honduras
recognises that. in the descriptions
(15)
made by Dr. Santiago Ignacio Barberena in 1890 and
in.1897. by the engineer from Honduras Jose Maria
Bustamente in 1890 and by the engineer from Honduras
A.W.W. Cole. the frontier line is described as having
been determined in accordance with the Forma1 Title
Deed relating to Tecpangüisir. The Memorial of Honduras
also recognises (16) that the maps prepared in Honduras
have also always established the line of the frontier
in accordance with that indicated in the Forma1 Title
Deed relating to Tecpangüisir.
3.14. It was only in the Conference which preceded
the signature of the Convention of Chiquimula
of 24 July 1935 that Honduras proposed a frontier
line different from that indicated in the Forma1 Title
Deed relating to Tecpangüisir. This Conference was
held to give effect to the Decision of 23 January
1933 of the Tribunal of Arbitration which decided
the boundary dispute between Honduras and Guatemala.
The judgement of the Tribunal of Arbitration had
recommended that Honduras and Guatemala should seek
15. Memorial of Honduras: pp. 301 et seq..
16. Memorial of Honduras: p. 303.an agreement with El Salvador. which had not been
a Party to this Arbitration. as to the place which
should constitute the tripartite boundary marker
between the Rhree States. The three States therefore
met at Chiquimula for this purpose and duly agreed
on the Cerro of Monte Cristo as the tripartite boundary
marker .of the three states. During the Conference.
Honduras proposed to El Salvador a frontier line in
the sector of Tecpangüisir Mountain by virtueof which
approximately 7 Square Kilometres of the land comprised
in the Forma1 Title Deed relating to Tecpangüisir
would have been transferred to Honduras. This proposa1
was of course totally inconsistent with this Forma1
Title Deed, whose legitimacy had been recognised by
Celestino Carranza, the Commisioner representing
Honduras at the Conference held at La Hermita on 8
May 1881. by Francisco Cruz. the Commissioner
representing Honduras at the Conferences in 1884 which
1ed to the signature of the Cruz-Letona Convention,
and by José Maria Bustamente. the engineer of Honduras,
in 1890.
3.15. The delegation of El Salvador. motivated
as always by their desires to resolve in
an amicable and pacific maqper their differences with
other States. replied (17> that their powers authobised
.
them only to agree the tripartite boundary marker
between the three Republics but that they would accept
this frontier line subject to the subsequent approval
17. Counter Memorial of El Salvador: Annexes:
vol. 1,.pp. 5-7.of the Government of ElSalvador
3.16. It is important to note that the proposa1
thus made by the Delegation of Honduras
at Chiquimula thus concerned approximately 7 Square
Kilometres of the land comprised in the Forma1 Title
Deed relating to ~ecpangüisir; on the other hand,
the boundary line claimed bY Honduras at the Meeting
of the Joint Boundary Commission on 24 & 25 September
1984 concerned no less than 69.6 Square Kilometres
of the land comprised in the Forma1 Title Deed relating
to Tecpangüisir. It must be emphasised that this late
and wholly unjustified claim by ond dur whsch had
never been made prior to ,1984. is not in any way
supported by the Title Deeds of 1580. 1816, 1817 and
1818 presented by Honduras for the first time as
Annexes to its Memorial it is sufficient to
(18)'
look at the MapS annexed to the Memorial of Honduras
and to the Counter Memorial of El Salvador
(19) (20)
which interpret these Title Deeds to see that these
Title Deeds refer to areas completely outside the
sectoi in dispute with the Sole exception of a small
area of approximately 2 Square Kilometres. known as
PeÏiasco Blanco or Moj6n de Tecpangüisir which is
introduced in an arbitrary manner inside the area
which is clearly delimited by the Forma1 Title Deed
relating to Tecpangüisir.
18. Memorial of Honduras: Annexes: pp. 1631
et sea.. ',
19. Memorial of Honduras: Map 8.4.2..
20. Counter Mernorialof El Salvador: Map 3.~..REPRESENTATIONAS AWHOLEOF THE COMMONLANDSOFSAN FRANCISCO CITAL (A7661,
AND OF THE LANDSOF THE INDIANSOF OCOTEPEQU(1818) AND SANTAANA(1738) 3.17. This latter small intromission is in fact
irrelevant for the following reasons. In
the Form$l Record of the Remeasurement of the Commons
of Ocotepeque in 1914 (which is not included in the
Annexes to the Memorial of Honduras but was
subsequently sent to the Foreign Ministry of El
Salvador by the Foreign Ministry of Honduras through
the Secretariat of the International Court of Justice)
it is stated that the "Comisi6n Agraria" of Ocotepeque
in accordance with Article 31 of the Ley Agraria of
Honduras ordered the remeasurement of the Commons
of the community of Ocotepeque, declaring that the
lands comprised in this remeasurement are those which
belong to this community on the basis of the documents
presented by them. which demonstrate that the title
to these lands was duly executed in their favour during
the colonial period. When the remeasurement was carried
out, the surveyor in question declared that. in
relation to the part of the Commons of Ocotepeque
which had a common boundary with the Republic of El
Salvador. the remeasurement did not present any
difficulty because the boundaries indicated in the
remeasurement were those which were regarded as the
boundary of the two colonial Provinces. He objected
only to the boundary marker of Penasco Blanco or
Tecpanguisir but stated that he had left this out
of consideration because it had been fixed by the
Boundary Commission of Honduras of 1889. in which,
according to the measurement carried out by the
engineer Nunez Castro, this boundary marker was
situated inside the"territory of El Salvador (21>.
21. Counter Memorial of El Salvador: Map 3.B.. 3.18. In al1 the Title Deeds presented by Honduras
in respect of this sector, the boundaries
of the Commons of Ocotepeque coincide with the
boundaries of the Commons of Tecpanguisir, which fully
confirms that the boundary line indicated by the Forma1
Title Deed presented by El Salvador has constituted
the frontier from before 1821 right up until the
present day (22).
II. Las Pilas or Cayaguanca
3.19. In this sector. the Memorial of Honduras
exhibits considerable confusion. as much
from the geographical as from the juridical point
of view. Honduras bases its claim to this sector on
Title Deeds executed in favour of Citala in the
Province of San Salvador in 1702. 1740 and 1742.
However, these Title Deeds refer to the second of
the sectors of the frontier delimited by the General
Peace Treaty of 1980 and do not have anything whatever
to do with the sector of Las Pilas (it should be noted
that this is the name utilised by El Salvador for
this sector, while Honduras intentionally utilises
the name of Cayaguanca Mountain). These three Title
Deeds were in fact cited by the Memorial of El Salvador
in i-elationto the sector of Tecpangüisir Mountain
(23)
because in these Title Deeds it is clearly indicated
that the Principal Land Judge of the "Real Audiencia"
22. Counter Memorial of* El Salvador: Maps 3.A..
3.8. & 3.C..
23. Memorial of El Salvador: Paragraphs 6.5;.
6.6. & 6.7.. 09-20' 1
89'10'
REPRESENTATIONAS A WHOLEOF THE TlTLE DEEDOFCOMMONLANDSOF LA PALMA (1,833),
COMMONLANDS OFOCOTEPEQUE(1,818),(1,867) ANDTHE LANDSOF JUPULA(1,740)
orna de Los Huesos
CerroMuyutepeque
-14~27'
Cerro EIPotreroVdel
Cerro Corral hilfo
rro deLosCedros
ConfdelRio Surnpul
COMMON LANDS OF
OCOTEPEOUE(I,BI8)
TlTLE DEEO OF THE
COMMON LANOSOF
LA PALMA(1,833)
---- FRONTIER LINE SUPPORTEO aY EL SALVADOR
FRONTIER LlNE SUPPORTED BY HONDURAS
-14°20' 4"2d-
Scale 1:100,000
INSTITUTO GEOGRL~FICONACIONAL
"INGENIERO PABLO ARNOLDO GUZM~N" -
MINISTERIO DE OBRAS P~BLICAS
REP~BLICA DE EL SALVADOR "1
89010' t'
I
.
MAP 3.Cof Guatemala ordered that the lands to the West of
the River LemDa should be given to the inhabitants
of Citala; .these are the lands on Tecpangüisir
Mour~tain. which had .been the subject of a visual
inspection without the least opposition from the
inhabitants of Ocotepeque (24).
3.20. In these Title Deeds in favour of Citala.
it is clearly established that the boundary
between the jurisdictions of Citala in the Province
of San Salvador and Ocotepeque in the Province of
Honduras is determined by the Quebrada of Gualcho
and the River Lempa and the Quebrada of Poy or Pacayas
as far as the Pesa of Cayaguanca and thus the
jurisdiction of Ocotepeque extends as far this boundary
line. However. the sector of Las Pilas is situated.
geographically speaking. outside, the lands b'elonging
to Ocotepeque and in no way was affected by the
discussion of the boundary between Citala and
Ocotepeque contained in the three Title Deeds mentioned
above because, among other reasons. the commissions
of the judges in question did not include the sector
of Las Pilas.
(25)
3.21. Fundamentally, these discussions as to the
boundaries between the Settlements of Citala
and Ocotepeque in 1702. 1704 and 1742 refer to the
lands of Jupula in the Province of San Salvador. which
24. Counter Memorial of El Salvador: Annexes:
Vol . 1 ,PP. 132-133.
25. Counter Memorial of El Salvador: Map 3.C..constitute the second of the sectors of the frontier
delimited by 'the General Peace Treaty of 1980. as
..
indeed is indicated in both the Memorial of El Salvador
and the Memorial of Honduras
(26) (27) '
3.22. The Title Deed of 1702 contains an account
of the support given by the Spanish colonial
authbrities to the inhabitants of Citala against the
Sub-Delegate Land Judge of Ocotepeque who, without
any right whatsoever. had entered ont0 the lands of
Citala and had marked out a part of its lands in favour
of Ocotepeque (28) ' A commission was given to Captain
Francisco Naveda Arce to carry out an inspection of
the Commons and other land comprised within the
jurisdiction of Citala and from the information which
he thus obtained it was placed on record that:
"The inhabitants of Ocotepeque had usurped the lands
belonging to Citala which are and belong to these
native Indians for the reasons. rights. and title
established in the forma1 records and which arise
from the documents relating to their long term
possession. in which the native Indians.of Ocotepeque
of the Government of ComaYagua have disturbed and
interrupted them by virtue of the acts of a Judge
Commissioner of that jurisdiction who entered into
the jurisdiction of San Salvador exceeding the
jurisdiction which had been given to him. on account
of which Your Excellency gave, a commission to the
said Captain Francisco de Naveda. Who has established
the truth and whose forma1 report having been approved
and he proposes as a measure and ordered and 1 order
that the natives have for the security of their
possession that which can be given to them and in
the name of His Majesty 1 give them my protection
so that they may not be dispossessed from these lands
26. Memorial of El Salvador: Paragraph 6.2..
27. Memorial of Honduras: p. 348.
28. Memorial of El Salvador: Paragraph 6.5..or from any part thereof (29)
The Judge Commissioner proceeded. as ordered in his
Commission. to demolish and remove the boundary markers
which in the district and -territory of Citala and
the jurisdiction of San Salvador the Judge Commissioner
of Ocotepeque had ordered to be erected or which the
Indians of Ocotepeque had erected under their own
authority i30). This document proves that the claim
made by Honduras in its Memorial to the effect
(31)
that the lands of Jupula were measured in 1701 on
the basis that they belonged to the jurisdiction of
Gracias a Dios has no probative value whatever since,
as shown .above. the Spanish colonial authorities
subçe~uently in 1702 ordered that these measurements.
should have no effect because they considered proven
the fact that these lands belonged to the jucisdiction
of San Salvador. ,.
3.23. Honduras distorts these Title Deeds which
refer to a sector which is already delimited.
giving them an erroneous interpretation based on
partial citations such as that (32)' which States that
the Title Deed of 1740 executed in favour of Citala
affects the Title Deed of Ocotepeque in respect of
"seize caballerias de terre. celle-ci ayant six lieues
environ de lona dans lesauelles se trouve com~ris
29. , Counter Memorial of El Salvador: Annexes:
Vol. 1.. p. 46.
30. vol.t1.. pp.or44l& 45. El Salvador: Annexes:
31. Memorial of Honduras: p. 296.
32. Memorial of Honduras: pp. 297-298. le villacle de Citala. aui appartient à la iur'idiction
.de San Salvador" (emphasis added). From this quotation
Honduras infers the conclusion that the community
of Citala established itself on the lands of Ocotepeque
and that this is the explanation why the inhabitants
of Citala were given the lands of Jupula to the east
of the River Lempa and the lands of Tecpangüisir to
the west of Citala (33). However, the proceedings
carried out in 1702, 1740 and 1742 demonstrate exactly
the opposite: in the Title Deed to the lands of Jupula
executed in 1740 in favouc of Citala (34) the "Abogado
Fiscal" stated "that. in accordance with the
information given ,by the Subdelegate Land Judge of
San Salvador. the township of Citala of the said
jurisdiction does not have Commons because the
inhabitants of Ocotepeque of the jurisdiction of
Gracias a Dios have deprived them of them by yirtue
of a Title Deed which. according to the report of
the Judge. comprises "sixteen caballerias of land
with latitude and lonatitude of six leaaues in which
is included the townshi~ of citala beina of the
jurisdiction of Gracias a Dios" (emphasis added) (35).
3.24. From the antecedents of this conflict
relating to the Title Deed of Jupula of
1740 set out in the Memorial of Honduras (36),, there
33. Memorial of m on dura s: 298.
34. Memorial of El Salvador: Paragraph 6.6.
35. Counter Nemorial of El Sa1vador: Annexes:
vol. 1, p. 101.
36. Memorial of Honduras:.pp. 126-131.emerge two judicially significant faCtS: first, the
1acR of veracity and the territorial imperialism of
the community of Ocotepeque, on which Honduras is
today trying to base its rights; and, secondly. the
malice with which the authorities of this community
acted.
3.25. It emerges from the very documents assembled
by Honduras in the Annexes to its Memorial
that the claims of Ocotepeque to the lands of Jupula
were categorically rejected by the Judge who heard
the case; he stated that "on voit donc, par ce fait,
qu'ils n'ont aucun droit.aux terres y la malice avec
laquelle ils ont proc6d6" (37)' For this reason, the
Principal Land Judge ordered that the Forma1 Title
Deed executed in favour of Ocotepeque be revoked (38)
and directed the inhabitants of. Ocotepeque to remain
within their own boundaries without invading the lands
of others.
3.26. The Mernorial of Honduras claims that. in
spite of this judicial order of such a
categorical nature, the inhabitants of Ocotepeque
nevertheless preserved by some means or other their
rights and "persista. donc dans son opposition en
conservant son titre" What basis is relied on
(39) '
by the Memorial of Honduras.in support of this flagrant
non-compliance with a judicial order of such an express
37. Memorial of Honduras: Annexes: p. 128.
38. Ibid. p. 129.,
39. Memortal of Honduras: p. 350.and categorical nature? On the fact that "la sommation
ordenee par le Juge de terres de Guatemala" was
(40)
never carried in effect
3.27. However a judicial document transcribed
in the Annexes to the Memorial of Honduras
(41) demonstrates the contrary. In this document it
is affirmed that "j 'ordonnai de venir aux Indiens
de ladite Hermita pour qu'ils assistent à la prise
de possession. mais ils refuserent de sortir. Par
consequent. le Juge .... mit les habitants de Citala
en possession dudit torrent". This document adds that
the inhabitants of Ocotepeque.. when they found out
that the inhabitants of Citala had duly appeared,
left without waiting to discuss the matter with them.
It was precise1I as a result of this withdrawal by
the inhabitants of Ocotepeque that the Judge deduced
"qu'ils n'ont aucune droit aux terres et la malice
avec laquelle ils ont procede". Contrary to what is
affirmed in the Memorial of Honduras. the instruction
to leave and to abstain from invading the lands of
others was notified to the inhabitants of Ocotepeque
on two occasions (42)- To make matters even more clear,
the instruction was communicated to an Indian of
.J
Ocotepeque who had not withdrawn (43) and he was
instructed to communicate this judicial order to the
40. Memorial of Honduras: p. 351.
41. Memorial of Honduras: Annexes: PP. 127,
seq..
42. Memorial of Honduras: Annexes: p. 130.
43. Ibid. p. 131. inhabitants of his village within three days. To claim,
as the Memorial of Honduras does, that a judicial
order was not executed because the persons to whom
it was directed had absented themselves from the
proceedings would clearly destroy one of the most
elementary basic principles of al1 judicial
proceedings, whether of a domestic or of an
international nature. ,
..
3.28. The Title Deed of 1740 confirms the Title
Deed of 1702 executed in favour of Citala
in which there was ordered the demolition of the
boundary markers placed by the ~ub-~eiegate Judge
of Gracias a Dios on the lands of Jupula in the
Province of San .Salvador. Both these Titles of 1702
and 1740 refer to the second sector of, the frontier
already delimited by the General Peace Treaty of 1980.
C
, . 3.29. Finally in 1742. in view of the fact that
the natives of Ocotepeque persisted in their
desire to deprive the inhabitants of Citala of their
lands. two Sub-Delegate Land Judges were nominated.
one from the Province, of San Salvador and the other
from the Province of Gracias a Dios, to hear the
dispute. Both Judges confirmed that the inhabitants
of Ocotepeque did not have any right to the lands
which they had usurped since these belonged to the
natives of Citala of the Province of San Salvador.
In these same proceedings. it was ordered that the
mountain situated to the west of these lands
(Tecpangüisir Elountain) should be left free for the
inhabitants of Citala and the boundary markers of
the lands of Jupula were confirmed. This Title Deed
was subsequentlv confirmed by the "Real Audiencia" of Guatemala (44)
3.30. The alleged Forma1 Title Deed relïed on
by Honduras in respect of this sector arises
out of a supposed renewal of. the conflict between
Ocotepeque and Citalà in relation to the lands of
~upula. The Memorial of Honduras alleges that 'in
1741-1i2 the inhabitants of 'Ocotepeque requested that
a new measurement of JupUla should be carried out.
This is not correct; it was the natives of Citala
who requested the reconfirmation of their boundary
markers in view of the insistence of the inhabitants
of Ocotepeque in trying to usurp them and it was for
this purpose that two Judges. Diaz de Castillo and
Juan Secundino Lanuza. were nominated to deal with
the conflict (45). Honduras presents in the Annexes
to its Memorial , an extremely brief extract
(46)
consisting of a single page from which it would appear
-that, as a type of consolation prize to the inhabitants
of Ococtepeque for having rejected once again their
claim, the Judges acceded to their last minute request
"qu'on leur laisse la montagne dite Cayaguanca".
3.31. It is on the basis of this document, executed
without any measurement, without any citation
-
of the adjoining landowners. and without any erection
or eveii indication of .any boundary markers. that
44. Counter Memorial of El Salvador: Annexes:
Vol. 1. Pp. 132-135.
45. Counter Memorial of El Salvador : Annexes:
Vol. 1, p. 130.
46. Mernorialof Honduras: Annexes: p. 2069. on dura ss attempting to found its claim in this
sector. However. it is important to remember that
the boundary between the Settlements of Citala and
Ocotepeque is constituted by, to the west, Tecpangüisir
Mountain and. to the East. by the Quebrada of Poy
or Pacaya as far as the Peiia of Cayaguanca. Thus,
Las Pilas is outside this sector; consequently the
Sub-Delegate Land Judges did n0t have the powers to
grant. by way of compensation. lands which were outside
the jurisdiction of Citala and Ocotepeque, which were
the only areas comprised within their commissions.
3.32. From both forma1 and substantive. points
-of view. this phrase to the effect that
the Judges merely acceded to what had been reauested
cannot constitute a valid Forma1 Title Deed for the
purposes of the attribution of sovereignity.
3.33. SO far as concerns matters of form. it is
quite remarkable and must certainly be .worthy
of comment that Honduras has presented solely an
extract consisting of a single page of the record
of a judicial action to which it attributes such
'importance. For example, the Memorial of Honduras
(47) affirms that these ,judicial actions were approved
by the Judge orozco Manrique de Lara but the approval
by this .superior judge does not appear in the extract
presented by Honduras: This is certainly because this
approval was rather as follows:
"as a result of judicial proceedings and visual
47. Memorial of Honduras: p. 335.inspections, let the possession qiven to the Indians
of the townshi~ of Citala of the lands in litigation
with the Indians of 'the township of Ocotepeque be
confirmed. which proceedings should be added to the
Title Deed executed on 28 July 1740, with attention
to the poverty which they at present suffer and let
the inhabitants of OcoteDeaue return the Title Deed
issued to them and let this dispatch constitute the
right so to do. There is one signature. The which
provides and duly signs the lawyer Francisco de Orosco
Manrique de Lara of the Council of His Majesty. his
"Oidor" and "Alcalde" of the Court of the "Real
Audiencia" of Guatemala, Sole Judge of the Royal Land
Law, and Visitor of the Kingdom, in the town of
Santiago de Esquipulas on 23rd February 1742" (emphases
added)
The above passage proves comprehensively that only
to the inhabitants of Citala of the Province of San
Salvador were confirmed the possession of thejr lands
and the validity of their Title Deeds; on the other
hand. no titles whatever were attributed to the
inhabitants of Ocotepeque who besides were orUered
to return the Title which they had maliciously
obtained.
3.34. so far as concerns matters of substance,
'the supposed adjudication alleged by Honduras '
satisfies neither the prerequisites nor the safeguards -
insisted upon by the Spanish administration during
the colonial period for a valid attribution of title
to Commons. The <Mernorialof El Salvador (49) contains
a full exposition of the meticulous safeguards which
48. counter Memorial of El Salvador: Annexes:
Vol. 1, p. 135.
49. . Mernorial of El Salvador: Paragraphs 4.11.-
-4.13. (and in particular the latter).had to be satisfied for an adjudication of title to
Commons to be considered valid. Not even one of these
safeguards is satisfied in the case of the so-called
Forma1 Title Deed cited by Honduras The Land
(50)'
Judges did not have the power to adjudicate Cominons
in this arbitrary manner, without any measurement,
without any citation of the adjoining landowneïs.
and without any erection or any indication of the
.I
boundary inarkers which would permit a concrete
territorial delimitation to be carried out today.
3.35. A further decisive consideration which
evidences the irrelevance of the supposed
Forinal Title Deed cited by Honduras is the fact that
the sector to which it refers doés not coincide with
the sector' which is at present in dispute. The sector
upon which the Chamber is called upon to pronounce
is the area which extends from the Pena of Cayaguanca
in a northerly and north-easterly direction. that
is to Say towards the Cerro of El Pital and towards
the sources of the River Sumpul. in other words the
area comprised in the Forma1 Title Deed which has
been presented by El Salvador. which nasalways been
recognised as the territory of El Salvador.
(51).
3.36. .The Memorial of Honduras itself. in the
geographical description which it makes
of this sector, confirms -the above when it describes
the most prominent elevations in the sector of Las
50. Memorial of Honduras: Annexes: p. 2096.
51. Counter Memorial of El Salvador: Map 3.C.Pilas, mentioning the Cerro of El Pital. the Monte
of Las Nubes. the Monte of Las Flores, and the Monte
of Las Cumbres or Las Granadillas. In the same way,
mention is made of some of the most elevated plateaux.
such as the Valleys of El Centro and Las Cruces or
Copantillos, whi'chare thecounterparts of the highest
Peak known as the Cerro of El Pital. However,, in no
context whatsoever, nor in any map prepared either
in Honduras or in El Salvador, does the Peiia of
Cayaguanca appear in this sector. nor has e,ither of
the two States ever claimed that this most elevated
point in this sector. the Cerro of El Pital. which
has always been recognised as being within the
territory of El Salvador,. should be identified as
the Pena of Cayaguanca.
3.37. The Memorial of Honduras (52) indicates
that on the borders of this sector to the
east and south-east are the localities of El.Centro,
Las Pilas, Las Cruces, Las Cumbres and La Granadilla
which. as El Salvador has demonstrated in the Annexes
to its Memorial relating to this SeCtOr are
(53)'
sma11 farms of the Municipalities of San Ignacio and
La Palma in the Department of Chalatenango in the
Republic of El Salvador. which are entirely inhabited
by citizens of El Salvador (54)'
52. Memorial of Honduras: p. 341.
53. Memorial of El Salvador: Annexes:'No. 7
54. Memorial of El Salvador: Map appended to
Chapter 7.3.38. The Memorial of Honduras recognises (55)
that. during the negotiations over the
boundary between the Settlements of Citala and
Ocotepeque carrikd out at La Hermita in 1881, the
discussions over this boundary never touched on land
beyond the Quebrada of Poy or Pacaya and the Pena
of Cayaguanca, not even when the Title Deeds of Citala
of 1702, 1740 and 1742 were being discussed; and that
in these Conferences Honduras never relied on. the
Title Deed of 1742 to assert any claim in respect
of the sector of Las Pilas. which at that time was
recognised by Honduras as forming part of the territory
of El Salvador.
-
3.39. In the same way in the'Conferences of 1884
the Commissioners of El Salvador and
(56)'
Honduras discussed the. boundary as far as 'the Perla
de Cayaguanca; however. the sector of aPslas was
never studied at al1 since both Commissioners expressed
the opinion that in this sector the boundaries were
recognised without dispute. 9
3.40. The Memorial of Honduras does not explain
how it is possible that. given that the
Town Council of Ocotepeque was summoned on the occasion
of the measurements of the lands known as River
Chiquito and Sesesmiles. which constitute the SeCtOr
of Las Pilas or Cayaguanca there was no protest
(57)'
55. Memorial of Honduras: p. 342.
56. Memorial of Honduras: pp. 340 et sea..
57. Counter Memorial of El Salvador: Annexes
vol. II, p.7.or opposition on the part of Ocotepeque to this
measurement which produced the execution of the Forma1
Title Deed to the Commons of these lands on 8 February
1833 in favour of the Municipality of the Dulce Nombre
de La Palma. in the jurisdiction of Tejutla in the
Intendency of the Department of San Salvador.
3.41. Neither does the Memorialof Honduras explain
how it is possible that, fifty-five'years
after the execution of this Title Deed in favour of
a Municipality of El Salvador, neither the
Commissioners of 'Honduras who in 1881 studied the
Title Deed to the lands of Jupula of 1742 (which
Honduras now presents as proof of its rights in this
sector) nor the Delegation. of Honduras to the Joint
Boundary Commission of 1884 invoked this latter Title
Deed for the purposes of claiming rights in the sector
of Las Pilas.
3.42. The Memorial of Honduras (58) declares that.
on the basis of the investigation of the
frontier carried out in 1890 by the engineer of
Honduras, osé Maria Bustamante. Honduras for the
first time situated the Mountain. of Cayaguanca in
this position; .the Memorial duly transcribes the
description made by Bustamente of this sector.
declaring that the Pena of Cayaguanca is distinct
fromthe Mountain of Cayaguanca, which is to the north
of the former. However. if the Mountain of Cayaguanca
is, in accordance with the description of Bustamante
58. Mernorialof Honduras: pp. 343-344. accepted by the Nemorial of Honduras, situated to
the north of the Pena of Cayaguanca, it cannot possibly
be situated within the sector in dispute in Las Pilas,
which isto the north-e4:t. This shows the geographical
error made by Honduras in relation to this sector.
3.43. In relation to the interpretation made by
Bustamante of the Title Deed of Citala of
1742. it is interesting to consider the opinion of
it expressed by Father Antonio R. Vallejo of Honduras
who, among oiher matters, indicated: "1 cannot explain
to myself how the Commisioner Bustamante, being so
we11 informed and diligent. was not capable, of
understanding the said documents, above ail given
.
that he was actually on the land in question". In
order to illustrate his disagreement. Father Vallejo
proceeded to transcribe a part of the Title Deed of
Citala of 1742. among others the following passage:
"The Commissioners ,in order to make the inspection.
accompanied by the justices and the principal citizens
of both townships. the Notary Public and the witnesses
present, positioned themselves on a very high Peak.
which was said to be called El Zapotal, from where
they saw fhat the natives of Ocotepeque had sufficient
lands for their crops within the jurisdiction of
. Gracias [a Diosl, and that' the land of the township
of Citala is al1 roush and unfruitful and that the
Title Deeds of the Commons of Ocotepeque comprise
al1 the land surrounded by this township and that
the only Commons outside the township are the lands
of Jupula which have the following boundary markers:
"From the junction of the stream with the River Lempa,
which is the ancient boundary line between the two
countries. climbing towards the west to the foot of
the Cerro of El Zapotal. which the said stream goes
round. and leaving the valley between the peaks. always
towards the west, until arriving at the mountain which
the inhabitants of Citala sow. and from there to a
stream which is above the mountain referred to
[TecpangiiisirMountainl.
"From the meeting of the River Lempa with the Quebradade Gualcho as far as the junction of the River Nunuapa
with the River Lempa.
"From the junction of the River Nunuapa with the River
Lempa, from West to east, as far as the Piedra cargada. '
"From the Piedra Cargada as far as the foot of a mound
of white Stones, which is on the summit of the mountain
cal led Cayaguanca. " (59)
This description transcribed by Father Vallejo is
of Tecpangüisir Mountain and of the lands of Jupula.
from which it can be seen that the interpretation
of the frontier made by Bustamante does not include
the present disputed sector of Las Pilas.
3.44. In accordance with the Title Deeds of Citala
of 1702. 1740 and 1742 was delimited the
second se'ctor of the frontier settled by the General
Peace Treaty of 1980 and Honduras neither made
reservations nor denied this delimitation on the
grounds that in its view the Title Deed of 1742
justified its claims in the sector of Las Pilas, which
paradoxically was not then delimited. It was not until
the Meetings of the Joint Boundary Commission in the
pei-iod from 1980 to 1985 that Honduras presented for
the first time three different claims in ,relation
to the sector of Las Pilas.'although not even at these
Meetings did it base its claims on the Title Deed
to citala of 1742.
3.45. El Salvador fbr its part cites in addition
to the documents already referred to the
59. Counter Memorial of El Salvador: Annexes:
Vol. 1, p. 152.measurement carried out in 1829, during the period
of the Central.American Federal Republic and the Forma1
Title Deed executed on the basis of this measurement
on 8 February 1933. This Forma1 Title Deed, although
obviously subsequent to the date of the independence
of Central America, was executed by the competent
authorities of the area under the régime of the Central
American Federal Republic and in the name of the
~overeign State. In this serise. this is a juridical
action which is binding upon Honduras, which was .at
that time* a, member of that Federal State. Honduras
has not presented any Title Deed which is referable
to the Royal Landholdings which were the subject of
this measurement of 1829. "In most of the cases
involving claims. to territorial sovereignity which
have come before an international tribunal, there
have been two competing claims to the sovereignity.
and the triburial has had to decide which of the two
is the stronger" (60)' In this case. the superior
probative value of the Forma1 Title Deed which has
been presented by El Salvador is indisputable.
3.46. This Title. presented in its original form
as an Annex to the Memorial of El Salvador
and transcribed in typescript as an Annex to this
Counter Memor'ial is a Forma1 Title Deed to
(61)'
Commons in favour of the inhabitants of the locality
of El Dulce Nombre de la Palma. which relates to an
Eastern Greenlanü Case P.C.I.J. Series A/B
NO. 53 p. 46.
61. Counter -Memorial of El Salvador: Annexes:
Vol. II, PP. 1et seq.. area of 40 "caballerlas"; the same document also
confers a private .proprietary interest in an area
of a little more than 68 "caballerias" . upon the
inhabitants of the same localitv. subject to the .
payment of "moderate compensation" therefor. This
Formal Title Deed records that the representatives
of Citala and of Ocotepeque were summoned to attend
for the purposes of the measurement (62)' The Title
Deed also records that the measurement proceeded
upstream along the River sumpul reaching "as far as
the confluence of the Stream of Copantillo with the
River Sumpul upstream of the latter". where "a cross
with a base of .stone was placed as a boundary marker".
and from "that point there was a change of direction
upstream along the small Stream to the South West"
"as far as the place known as El Pital, leaving another
siinilar cross and Stones as a boundary marker", The
following day, 1 August 1829, "following the same
direction. the cord was extended as far as the
neighbourhood of the peak of Cayaguanca". This
Forma1 Title Deed includes the whole of this disputed
sector (63)'
3.47. Honduras has presented in the Annexes to
its Memorial the' Title Deeds to the
(64)
lands of the conimunity of Ocotepeque and in none of
these is included the sector of Las pi-las. which
62. Counter Vemorial of El Salvador: Annexes:
vol. II. p. 7.
Ibid. p. 10
64. Memorial of Honduras: Annexes: pp. 1631
et seq. .Honduras claims is located within the lands. of
Ocotepeque. Neither in the remeasurement of the Commons
of Ocotepeque carried out in 1867 (65) do the
boundaries of the lands of Ocotepeque extend
sufficiently far to include the sector of Las Pilas
or Cayaguanca presently in dispute. Finally. in the
remeasurement of the lands of the community of
Ocotepeque carried out in 1914 it is indicated
(66)
clearly that in this remeasurement are included al1
the lands possessed by the community of Ocotepeque
on the basis of the colonial documents presented by
them, the sector of Las Pilas presently in dispute
being completely outside the boundaries of the lands
of this community. These documents prove conclusively
that this sector has belonged from the colonial period
up until the present day to the district of Tejutla
in the colonial Province of San Salvador (today the
Department of Chalatenango in the Republic of El
Salvador) and that this sector has never belonged
either before or after 1821 to the -community of
Ocotepeque (67)'.
III. Arcatao or ZazalaDa
3.48. In this sector El Salvador has relied on
the Forma1 Title Deed to the Commons of
65. Counter Memorial of El Salvador: Annexes:
vol. II, p. 129 et sep..
66. COUnter Memorial of El Salvador: Paragraph
3.17..
67. Counter Memorial of El Salvador: Maps 3.8.
& 3.C.. ArcataO, which is based on a measurement carried out
in favour of the indigenous population of Arcatao
from 7 - 10 August 1723 In order to facilitate
the process of checking the original title, a certified
typescript transcription is appended as an AnneX to
this Counter Memorial
(69)'
3.49. In the Mernorial of El Salvador (70) are
indicated the different boundary markers.
al1 perfectly identifiable at the present time, which
circumscribe the Commons of Arcatao and which make
it possible to carry out the territorial delimitation
in this sector in the manner sou~ht by El Salvador.
The map included in the Memorial of El Salvador (71)
indicates the positions of the various boundary markers
and the distances between them measured in cords of
50 "varas" (72)'
3.50. In this sector the Memorial of Honduras
relies on certain documents executed
(73)
prior to 1821 which. according to Honduras, "mettent
en evidence les 1imites.-des anciennes juridictions
dans cette zone" (in upper case in the original).
Once again Honduras returns to its erroneous theory
68. Memorial of El Salvador: Paragraphs 6.25.
et sea. & Annexes.
69. -Counter Memorial of El Salvador: Annexes:
Vol. III. pp. 1-48.
70. Memorial of El Salvador: Paragraph 6.28..
71. Memorial of El Salvador: Map 6.3.
72. 1 "vara" = 0.836 metres.
73. Memorial of Honduras: pp. 329 et sea.. tt~at what counts in Forma1 Title Deeds to Commons
are the recitals in the declaratory part. of these
Deeds relating to "the ancient jurisdictions" of the
colonial provinces rather than the boundary markers
which precisely delimit the jurisdictions over Commons
and over land'.
3.51. Nevertheless, the MenIorial of Honduras (74)
also emphasises in this section various
boundary markers which Honduras wrongly believes to
support its claim. Honduras thus cites the measurement
of a Title Deed to land in San Juan de Lacatao (not
a Forma.1 Title Deed to Commons) carried out in 1776
by Cristbbal-de Pineda and a supposed remeasurement
carried out in 1786 by Manuel de Castro. "De l'ensemble
I de ces documents" the Memorial of Honduras
(75)'
deduces that certain boundary markers which it. lists
are identified as boundary markers of the limits of
the two jurisdictions. e
3.52. However. a close examination of the Title
Deed to this land in San Juan de Lacatao
shows that, with one sole exception. none of these
boundary markers was identified by the inhabitants
of Arcatao as marking the limits of the two
jurisdictions. The only boundary marker which both
the inhabitants of San Juan and the inhabitants of
Arcatao recognised as marking the limits of the two
jurisdicti.ons was the boundary marker of the Cerro
74. Memoi-ialof Honduras: pp. 329 et sea..
75. Memorial of Honduras: P. 330.Caraco1 (76). This particular boundary marker is
mentioned in both Title Deeds and its geographical
location makes it possible to determine with exactitude
how far to the East the jurisdiction of the Commons
of Arcatao reached since at the boundary marker of /
the Cerro Caracol "(slur ce lieu se trouvaient le
maire y les habitants du village de San Bartolome
Arcatas (sic1 lesquels ayant expose leur titre ont
declaré que cet endroit etait la limite de leurs
terres". Further, on one of the maps presented with
the Memorial of Honduras in support of its claim.
(77)
the Cerro Caracol is shown as being located in the
same place as on the map presented by El Salvador;
this of course concurs with the argument advanced
by El Salvador.
3.53. Al1 the remaining boundary markers which
the Memorial of Honduras tries to cite in
support of its claim were neither recognised nor
identified by the inhabitants of Arcatao. Although
the Memorial of Honduras adduces that the Portillo
de los Lagunetas. where the "Bachiller" Simon
- (78)
de Amaya was waiting with his Title Deed. was
recognised as the limit of the two jurisdictions,
this Sim6n de Amaya in fact had iiothing whatever to
do with the authorities of the community of ArCataO.
76. Memorial of Honduras.:Annexes: pp. 1988-1989.
77. Memorial of Honduras: Map 8.5.2.
78. The term "Bachiller" signifies that its
holder had obtained the then equivalent
of a University Degree.3.54. The MemorPial of Honduras (79) cites, the
remeasurement of the Hacienda of San Juan
de Lacatao of 1766 and, in particular, a further
Pemeasurement of 1786. The Title Deed of this
remeasurement' was not presented in the Annexes to
the Memorial of Honduras but subsequently reached
El Salvador through the International Court of Justice.
This Title Deed neither constituCes a Forma1 Title
Deed to Commons nor contains the approval of the
judicial authorities of Guatemala which is required
by the "Reales Cedulas". It is stated in this Title
Deed that. when Pineda carried out the previous
remeasurement of 1'766 on whicb Honduras bases its
claim, he did not review any opposing claims and for
this reason returned to his Hacienda without making
any citations of adjoining landowners whatsoever
3.55. From this Title Deed of 1786. it emerges
that the boundary marker that divided
ArCataO. in the Province of San Salvador. frOm San
Juan Lacatao, in the Province of Comayagua, was
situated in a mountainous area. The Title Deed states
that the surveyor:
in the diréction north to north-northeast; he beganain
to climb within the said mountain, reached its Peak
and continued the measurement until he encountered
another of the boundary markers .. . which divides
the lands of Arcatao. a township of the jurisdiction
of San Salvador, and the lands which were being
measured. and .at this boundary marker there were
79. Memorial of Honduras: p. 330
80. Title Deed of 1786 (presented by Honduras) :
pp. 71-72. See also Counter Vemorial of
~1 Salvador: Map 3.~.. la**.
REPRESENTATH AS A WHOLEOf THE COMMONLANDS
OF ARCATAO (1724), EL SALVADOR ANDLANDS OF SAN
JUAN OF THE ARCATAO (17661,HONDURAS
COYlON LANS OF
ARCATAO1724)
LANDS OF SANUNOC
THE ARCATM 11766)
-..- 81 EL SALVADORUPPORTE0
----- BYHONWRASINE SUPPORTED
LomldaAedo
INSTITUTO GEOGR~FICONACK~N~
"INGENIERO PABLOARNOLDO GUZMAN"
&.IO1: 100.000 MINISTERIODE OBRAS P~~BLICAS
REP~SBL IE EL SALVADOR
MAP 3.D present with their title the inhabitants of the said
left with the lands of this township, along aing toroyal
reached ah plantation of Trsugar cane wherehis thed'lands
of the said township end"
(81)'
As can be seen, it emerges from this Title Deed that
the Commons of Arcatao extended as far as this
.mountainous area towards the north, exactly as is
claimed by El Salvador.
3.56. The Memorial of Honduras also relies on
the measurement of the place known as
Gualci.maca carried out in 1783 by Manuel de Castro.
Once again, this is not a Forma1 Title Deed to Commons;
however, many of the boundary markers recognised and
identified in this Title Deed relating to private
proprietary interests in land confirm the delimitation
which arose from the Forma1 Title Deed to the COnImOnS
of ArCataO, which El Salvador has presented in support
of its claim.
3.57. This measurement of Gualcimaca began at
the boundary marker which constitutes the
tripartite boundary between the jurisdictions of
Gualcimaca,' San Juan de Lacatao and Arcatao (82).
The positioning of the boundary markers contained
in this measurement of Gualcimaca presents some
difficulties. In general terms it can be said that
81. ~itle Deed of 1786 (presented by Honduras):
p. 73.
82. Menlorial of Honduras: Annexes: p. 1929;
Counter Memorial of El Salvador: Map 3.E..REPRESENTATIONAS WHOLE OF THE LANDS OF ARCATAO ( 17241,
EL SALVADOR, AND SITE OF GUALCIMACA (18371,ANDCOMMONLANDS
COMMON LANDS OF ARCATAOi17241
AODITKNAL LEAGUE OF THE COMWON
LANDS OF LA VIi18371
0 CWMON LANOS OF LA VIRTUD iI@?Sl
---- FRONTIER LlNE SUPPORTED BYEL SALVADOR
---- FRONTIER LlNE SUPPORTED BY HONDURAS
Ir*1: 100,000 INSTITUT0GEOGRAFI 'COONAL
"INGENIEROPABLOARNOLDO GUZM~N",.-cc-
REPI)BLICDE EL SALVADOR
MAP 3.Esome of its boundary markers coincide with the boundary
markers of the orm m aille Deed to the Commons of
San Bartolom6 Arcatao in the Province of San Salvador
of 1724; examples are the ~erri El Sapo, the Cerro
Guanpa, the Cerro Caracol. and the Cerro El Ocotillo.
The Memorial of Honduras makes an unacceptable
identification of the Cerro El Tambor in one of the
maps appended thereto owing to the fact that
(83) '
this map places this boundary marker at the source
of a Stream and ignores its relationship with the
Cerro Caracol.. which is situated two kilometres to
the north and i& mentioned in the description of the
Cerro El Tambor (as has already been stated, the Cerro
Caracol is correctly located in the maps presented
by both El Salvador and Honduras). The Title Deed
of Gualcimaca adds that this measurement reached a
place called La Laguneta, which constituted the final
boundary marker dividing Arcatao and Gualcimaca.
3.58. ~ondui-as has presented another Tit e Deed
to the place known as Gualcimaca. executed
in 1837. Although this Deed obviously does not define '
the uti possidetis iuris of 1821, it does confirm
the erroneous geographical location of boundary Stones
.-
of which the Memorial of Honduras is guilty. The
measurement started from the Cerro El Tambor, which
cannot be the Peak indicated on the map already
referred to but another Cerro El Tambor situated to
the north of the Cerro Caracol, which is correctly
situated on the officia1 maps of Honduras. The reason
83. Memorial of Honduras: Map B.5.2 for this conclusion is that. according to this Title.
it is necessary to proceed towards the West in order
to reach the Cerro El Sapo and the Cerro Caracol.
In the course of this measurement. the geographical
features and boundary markers which appear in the
Forma1 Title Deed to the Commons of Arcatao are. by
common agreement. encountered once again, that is
to Say. the boundary markers on the hi11 del Sapo.
the heights known as Guanpa. the Cerro Caracol, in
whose neighbourhood there are two places where indigo
is made. the Ocotillo, finally reaching La Laguneta
3.59. The Memorial of Honduras also relies on
another Title Deed, which once again is
not a Forma1 Title Deed to Commons; the measurement
of the place known as Colopele in 1779. In this
measurement is mentioned the boundary marker of
Guanacaste where the inhabitants of ArCataO with their
Title Deed were waiting (85). This boundary marker
coincides with the boundary marker desciibed in the
following way in the Forma1 Title Deed to the Commons
of AîCataO:
"And following the same direction above Zazalapa,
which has a boundary with the Province of Gracias
a Dios, which are lands of the Hacienda de Zazalapa,
until arriving at the summit of some very high peaks,
where there is a tree of Guanacaste, and where a cross
and a boundary marker of Stones were erected."
(86)
84. Memorial of Honduras: Annexes: pp. 1952-1953.
86. Counter Memorïal of El Salvador: Annexes:
vol. III, p. 9. .,
'Thus. the Title Deed of colope'le confirms the
(87)
projection towards the North of the Forma1 Title Deed
to the Commons of Arcatao, which extends as far as
the confluence of the Rivers Gualquire and Zazalapa
and above the River Zazalapa has a boundary with the
lands of the Hacienda of that name. (88)
3.60. In the same way the Memorial of Honduras
(89) mentions the Ti tle Deed of Zazalapa
of 1741. another Title Deed which is not a Forma1
Title Deed to Conimons. FrOm this Title to private
proprietary interests in land. it emerges that, by
proceeding up the stream of Zazalapa, the measurement
began to follow the boundary with Arcatao, as a result
of which the stream of Zazalapa was identified as
the limit of the two jurisdictions.,This constitutes,
along with the boundary marker of Guanacaste referred
to in the previous paragraph, a further confirmation
of the projection towards the North of the Forma1
Title.Deed to the Commons of Arcata0.
3.61. The Memorial of Honduras al.so adduces as
proof the Title Deeds of Concepcion de las
Cuevas of 1741 and of San Juan de Chapulin of
(90)
1766 (91) but in neither of these Titles were the
inhabitants of ArCataO either cited or present and
87. Memorial of Honduras: Annexes: p. 1884.
88. Counter Memorial of El Salvador: Map 3.F
89. Memorial of Honduras: Annexes: p. 1829.
90. Ibid.: p. 1815. O
91. 1bid. p. 1842. I I .
en-50' OC«)'
REPRESENTATION AS A WHOLEOF THE LANDSOF GUARITA(1775), SITE
Portibo de dos OF COLOPELE(1779) ANDUIE RANCHOF SAN JUAN CHAPULIN(1761)
"-----,Cara Tomblo
Carro de LoMajoda
C1a e
Emthcadera deQdaChichil
GUARITA 11715
ta de Qda.deAguo con R;oGualcinga ln
- 14°10' 14*1-
1-1 SITE OF COLOPELE ~17791
EL REPASTADERO RANCH OF SAN JUANCHAWL(1761
JuntodeQdo.ElChupoder? Q
con Rio Sumpul(l*Mojon)
Pmo&IChupadero
deLo Piedro Largo?;-
---- FRONTIERLlNE SUPPORTEDBY EL SALVADOR
---- FRONTIERLlNE SUPPORTEDBY HONDURAS
Scala1:100,000
1 \,
INSTITUTO GEOGRAFICO NACIONAL - O - 2 1 4 Kmi.
,'INGENIERO PABLO ARNOLDO GUZMAN"
MlNlSTERlO DE OBPUBLICAS i \
REP~BLICA DE EL SALVADOR \\
-.
MYI' \ \, 88I40'
MAP 3.F i
as a result these Title Deeds did not fix the
jurisdictional boundaries of the tWo provinces (92)'
3.62. Finally. the Memorial of Honduras has
presented a document relating to the' lands
of San Juan de Lacatao executed in 1786. in which
it is affirmed cate~orically that the boundary of
the Provinces of Gracias a Dios and San Salvador is
constituted by the River Gualgüix, a tributary of
the River Jor6n or Gualmota, situated two kilometres
to the northeast of the frontier at present claimed
by El Salvador (93)'
3.63. The proof presented by El Salvador in
respect of its rights in this sector, namely the Forma1
Title Deed to the Commons of San Bartolome Arcatao
of 172b. has, by virtue of being a Forma1 Title Deed
to Commons. greater probative value than the Title
Deeds to private proprietary interests presented by
\.
Honduras, and additionally there' remain between the
lands delimited Ir>y these documents presented by
Honduras extensive royal landholdings which at the
beginning of the Nineteenth Century were already
occupied by natives of the ~rovince of San Salvador.
IV. Nahuateriaue and Torola
3.64. The Forma1 Title Deeds to Commons relied
on by El Salvador in this sector are those
92. Counter Memorial of El Salvador: Kap 3.F..
*.. Ibid.: Map 3.G.. 80'40'
CARTOGRAFHY(DOCUMENT X .17,1786)
descriptionmentionedin the doc
becouseof lts vog.eness
.
2u)- The nomesintopilal Letlers ore m'%------a
in the documenAI1else ore includedoa
geographicol reference.
3u)-Unidentifgeogrophlcolfeotdres
mentlonedin the document:
l*Celltoco Hi2g zupuzoHIII.
"INGENIERO PABLO ARNOLDO GUZMAN"
Mapa Bisico : Hoh on dur en as
14900'
MAP 3.G relatin~ to the indigen0uS communities of ~rambaia.
Perquin and Torola, al1 situated within the colonial
province of San Salvador.
3.65. It is not inconvenient for El Salvador to
divide this sector into .two sub-sectors,
as does the Memorial of Honduras; thus it is proposed
,
first to consider the sub-sector of Nahuaterique and.
secondly, the sub-sector of Torola.
(A) The Sub-Sector of Nahuateriaue
3.66. The claim of El Salvador to the sub-sector
of NahuateFique is establ ished bi the orm mal
Title Deed to the Commons of the twin indigenous
communities of Arambala and ~erquin. The history and
content of this Fornial Title Deed to Commons is set
out in the Memorial of El Salvador (94)'
3.67. This Forma1 Title Deed to Commons, which
was executed by the Spanish Crown in 1745.
was subsequently destroyed at the time of the fire
which razed the townships of Arambala and Perquin
to the ground. As a result of this occurrence. the
Municipal Corporations of Arambala and Perquin.
situated within the jurisdiction of the Province of
San Miguel, within the "Alcaldia Mayor" of San
Salvador, appeared before the lawyer Domingo Ldpez
de Urrelo y AtOCha, "Juez Privativo del Real Derecho
de Tierras" (Sole Judge of the Royal Land Law) of
94. Memorial of El Salvador: Paragraphs 6.31.-
("j -6.39..the Colonial Kingdom of ~uatemala. to request that
their Commons be remeasured and its boundary markers
be re-established with the object of obtaining the
replacement of their Forma1 Title Deed to these
Commons.
3.68. The appropriate judicial proceedings were
entrusted to Don Antonio de Guzman, Delegate
Judge for land measurements in the Province of San
Miguel. On 26 May .1769.it was decreed that the request
should be complied with and that the adjoining
landowners should be summoned for the purpose of
establishing the boundaries, re-establishin~ the
boundary markers and taking the measurement of these
Commons, a. task which he in fact delegated to Don
Antonio Ignacio de Castro on the grounds of il1 health
3.69. on 6 June 1769, the Judge Commissioner Don
Antonio Ignacio de Castro carried out the
appropriate "Visual Inspection". in the course of
which he duly recorded the boundaries and boundary
markers of the lands which comprise the Commons of
Arambala and Perquin, within the jurisdiction of the
province of San Miguel. So far as concerns~boundaries,
this inspection showed that the Commons:
". . in the part to the North have a common boundary
with the jurisdiction of Comayagua; in the part to
the South border on the township of Torola of this
jurisdiction (of San Miguel1 ênd with a "Hacienda"
(country estate) which the township of Osicala has
on lands of the township of Mianguera; in the part
to the East border on the Hacienda of Juateca which
the Indians of San Juan Yarula have purchased in this
jurisdiction [of San Miguell and have a common boundary
with the other jurisdiction; and in the part to the
West have a common boundary with the jurisdictionof Gracias a Dios." (95)
3.70. On 12 June 1769, the appropriate Judici'al
Record of the Remeasurement of the Commons
of Arambala and Perquin was duly drawn up. in which
were recorded the following boundary markers in this
order:
1st Boundary Marker: Cerro de la Ardilla;
2nd Boundary Marker: Cerro Salalamuya;
3rd Boundary Marker: Sojoara;
4th Boundary Marker: Cerro Napansapa;
5th Boundary Marker: Portillo de Olosicala;
6th Boundary Marker: Cerro Chagualaca;
7th Boundary Marker: Loma Guiriri;
8th Boundary Marker: Roble Negro;
9th Boundary Marker: Loma Monguetas;
10th Boundary Marker: Esquingela;
11th Boundary Marker: Tiemblaca;
Agualcaguara;
12th Boundary Marker:
13th Boundary Marker: Cerro Limpe;
Cerro Sojoal;
14th Boundary Marker:
15th Boundary Marker: Cerro Guayanpal;
16th Boundary Marker: Tierra colorada;'
17th Boundary Marker: Cerro Pedragoso;
18th Boundary Marker: Loma Masala;
19th Boundary Marker: Portillo Equilatina;
20th Boundary Marker: Cerro Sapamani;
21st Boundary Marker: MontaRa la Isla;
22nd Boundary Marker: Cerro de la Ardilla.
95. Counter Memorial of El Salvador: Annexes:
Vol. IV, PP. 15-16. On 17 June 1769, the "Juez Subdelegado del Real Derecho
de Tierras" (Sub-delegate Judge of the Royal Land
Law) approved this measurement.
3.71. Al1 these boundary markers listed within
the Forma1 Title Deed to the Commons of
Arambala and Perquin can still be identified perfectly
at the present time and the original place names are
sti11 preserved in this area so that the appropriate
map can easily be drawn up. This is 11otthe case with
the Title Deeds relied on by Honduras; in several
of these only one boundary marker is identifiable
so that it is not possible for any map to be drawn
3.72. On 13 November 1815, the inhabitants of
Arambala and .Perquin presented a petition
to the Judge Prosecutor for the purpose of seeking
the approval of the measurements of their Commons
and the replacement of their Forma1 Title Deed. On
16 November 1815, Don Jose Bustalnente Guerra de la
Vega Pineda Covo Estrada y Zorlado, President of the'
"Real Audiencia" (Supreme Civil Tribunal) of Guatemala,
in the name of his Majesty the King of Spain a'nd by
virtue of the "Real Cédula de Instruccibn" (Royal
Decree of Instructions) executed in San Lorenzo El
Real on 15 October 1754, declared
(96):
". . ...1 decree that the Indians of the townships
of Arambala and Perquin should be protected in their
age old possession of their Commons subject to the
boundaries and boundary markers which are set out
96. Counter Memorial of El Salvador : Annexes:
Vol. IV, p. 32. in the inserted measurement."
This Title Deed was confirmed in New Guatemala 'on
15 December -1813.
3.73. As can be seen. this Forma1 Title Deed to
the Gommons of Arambala and Perquin satisfies
al1 the formalities required by the spanish Crown
for the establishment of such Forma1 Title Deeds;
consequently, this Forma1 Title Deed presented by
El Salvador is indisputably superior to the Title
Deeds relied on by Honduras.
3.74. Further. in this Forma1 Title Deed to the
Commons of Arambala and Perquin, it was
established that the lands granted to the inhabitants
of Arambala and Perquin as communal property had always
formed part of the jurisdiction of the Province of
San Miguel and thereby of the Alcaldia Mayor of San
Salvador. Since the independence of Central America.
these lands have continuously formed part of the
National Territory of the Republic of El Salvador.
at the present day forming part of the Department
of Morazan of that Republic, It was also established
in this Forma1 Title Deed that the river which divides
what was then the Provi'nce of San Miguel from what
.
was then the Province of Comayagua is the River Negro
or Pichigual.
3.75. On the other hand, in relation to the
identification of the River Negro, Honduras
argues that, in the course of the various meetings
held between repre'sentatives of the two States, it
has been accepted that the dividing line between the
colonial provinces of San Salvador and Honduras wasthe River Negro or Quiaguara (97). However, what count
for the purpose of identifying this river are the
Spanish colonial documents. In this respect, the
Judicial Record of the Remeasurement of the Commons
of ~rambala and Perqufn drawn up on 12 June 1769
clearly declares that the River Negro referred to
in that Forma1 Title Deed is not, as Honduras argues,
the, River Negro or Quiaguara but rather the River
Negro or Pichigual. ~iiis is ratified by the Forma1
Confirmation of the Judicial Record of this
Remeasurement by the "Real Audiencia" of the Colonial
Kingdom of Guatemala on 15 November 1815, where it
is stated ".... and to the South-West royal
landholdings which belong to this jurisdiction because
beyond these land is the River Negro which is also
cal led Pichiaual which riyer divides this jurisdiction
from the jurisdiction of Gracias a Dios" (98) (emphasis
added) .
3.76. In this sector, the Memorial of Honduras
bases its claim exclusively on the Forma1
Title Deed to the Commons of Jocoara or Santa Elena, ,
issued in 1770 and confirmed in 1776 (99). But this
Forma1 Title Deed is totally insufficient as a basis
for the territorial claim of Honduras in that it only
deals with an area of 2 "Caballerias". 201 "Cords".
while a Commons of 60 "Caballerias", 58 "Cords", was
97. Memorial of Honduras: pp. 223-224.
98. Counter Memorlal of El ~alvador : Annexes:
Vol. IV, p. 32.
99. Memorial of Honduras: ~nnexes: .pp. 1242
et sea; .recognised in 1769 and confirined in 1815 to belong %,
to the inhabitants of Arambala and'perquin, the only
area excluded therefrom being the 2 "Caballerias",
201 "Cords". of the Commons of the inhabitants of
3.77. On the other hand. this Forma1 Title Deed
to the Commons of Jocoara refers not to
the Mountain of Nahuaterique but to Royal Landholdings
to the West or South-West of the Mountain. The Memorial
of Honduras relates that the community of Jocoara
requested in 1769 'the measureinent of these 2
"Caballerias", 201 "Cords". of land belonging to the
Crown, that is to say a Royal Landholding. The Forma1
Title Deed to the Commons of Arambala and Perquin
places on record that to the West and South-West of
these Commons were situated Royal Landholdings. From '
the express recognition of this fact by Honduras,
it can be deduced that the 2 "CaballerlasW. 201
"Cords", adjudicated to JocOara were situated outside
the Commons of Arambala and Perquin and not, as
Honduras claims, inside those Commons.
3.78. The invocation by Honduras of the Forma1
Title Deed to the Commons of Jocoara of
1776 implies the recognition by Honduras of the Forma1
Title Deed to the Commons of Arambala and Perquin
since both Title Deeds are intimately connected in
that the former was no more than an incidental matter
that was carried through by the inhabitants of Jocoara
1. Mernorialof Honduras: Annexes: p. 52. in the course of the p~oceedings for the remeasurement
and replacement of the Forma1 Title Deed to the Commons
of Arambala and Perquin. The connection between the
two Titles is established in a definitive form by
the decision of the "Real Audiencia" of 16 November
1815, the text of which is transcri-bed in the Annexes
to this Counter Memorial (2)'
3.79. To sum up. any combined examination of these
two Forma1 Title Deeds establishes beyond
dispute the position of the River Negro or Pichigual
and the extension of these Commons, that is to say
the fact 'that the administrative contI-01 of Arambala
and Perquin extended to the North of the River
Quiaguara as far as the Cerro de la Ardilla. as is
claimed by El Salvador. TheSe two Forma1 Title -Deeds
were examined and their scope and their area recognised
in the Forma1 Record of the Negotiations between the
Commissioners Sancho and Alvarado. in representation
respectively of El Salvador and Honduras. on 1 July
1861 at the Mountain del Mono (3).
3.80. These two Commissioners Sancho and Alvarado
proceeded, according to this Forma1 Record,
to delimit on the ground the area of the respective
Commons with the assistance of the inhabitants of
both localities, fixing their boundaries on the basis
of the geographical features and boundary markers
2. Counter Memorial of El Salvador: Annexes:
Vol. IV, pp. 31. 32 & 33.
3. Memorial of Honduras: Annexes: pp. 52-54.which divided the two Commons. The Forma1 Record adds
that to this effect. they reached a place kniwn as
the foot of the Cerro de la Ardilla, where they renewed
the boundary marker, and that they subsequently
recognised and re-established the boundary markers
of La Isla, the Cerro de Saparzani, Sojoara. the Colina
de Olasicala, Piedras Gordas, and the Colina of
Arambala or El Alumbrador. The delimitation of the
Commons in this sector is, as can be seen, clear and
precise and was carried out by common agreement of
the surveyors nomiriated by the two Governments with
the assistance and participation of the inhabitants
of the two indigenous communitieB who were in dispute.
It is impossible to conceive of any proof that could
be more categorical in a boundary dispute of this
type.
3.81. In the Fourth Meeting between Cruz and Letona
held on 28 March 1884. the Commissioners
accepted without modifications. as they were indeed
bound to do, the line of demarcation of the Commons
established by the For-\l- Record of the Negotiations
of 1861, repeating the same geographical features
and their boundary markers, namely the Cerro de
sapamani. La Sabaneta or La Isla, the Cerro de la
Ardilla, Olasicala, the Cerro del Alumbrador and
Alguaci 1 Mayor.
3.82. The Memorial of Honduras recognises
O (4)
that al1 the points so indicated belong
4. Memorial of Honduras: p. 203.""A la iigne de démarcation delimitee par le titre
des terains communaux de .~rambala, Perqufn et San
Fernando". Ce qui implique fondamentalment une
coincidence entre les limites du titre des terres
des communautes salvadoriennes et les limites du
territoire d'El Salvador" (original emphasis). This
is exactly what El Salvador is arguing (5) and
consequently precisely what constitutes the decisive
issue in this boundary dispute.
(B) The Sub-Sector of Torola
3.83. In.th.s sub-sector of Torola. El Salvador
bases its claim on the Forma1 Title Deed
to the Commons of Santiago Torola issued by the Spanish
authorities..This Title Deed was destroyed in a fierce
fire which occured in 1734 and which razed to the
ground the township of Santiago Torola. Because of
this occurence, the town council of Torola requested
captain Juan Jose de canas. Judge ~ommissioner for-
Land Measurements in the Province of San Miguel duly
authorized as such by the Sole Judge of the Royal
Land Law. of the Colonial Kingdom of Guatemala. the
lawyer Francisco Orozco Manrique de Lara, that their
Commons should be remeasured and their boundary markers
reconfirmed and. once the necessary legal procedure
had been carried out. their Forma1 Title Deed should
be replaced. This remeasurement was authorised on
7 May 1743 and.was confirmed that same year by Captain
Juan Jose de Cafias. who duly executed a new Forma1
5. Counter Memorial of El Salvador: Chapter II. Title Deed to the Commons of Torola
3.84. Thiis remeasurement of the Forma1 Title Deed
to the Commons of Torola of 1743 because
of a subsequent deterioration in its physical state,
was protocolised in San Miguel in November 1843 by
.the Notary ~"blic José Cordova. at the request of
the Town Council of the township of Torola in the
Republic of El Salvador (6). On 29 February 1844.
- the Political and Military GOVernment of the Department '
of San Miguel in the Republic of El Salvador. at the
request of the Town Council of Torola and with the^
intention of avoiding the continuous clashes between
the inhabitants of Torola and the adjoining landowners
of ~olomoncagua, authorized a further remeasurement
of the Commons of Torola, taking as boundary markers
those established bv the Forma1 Title Deed to the
Commons of Torola of 1743; this remeasurement was
duly confirmed in Torola on 16 March 1844 and was
handed down to the interested parties on 4 March 1846
The Forma1 Title LSeed to the Commons of Torola proves
the legitimate rights whic'h El Salvador has in this
sector in accordance with the uti ~ossidetis iuris
of 1821.
3.85. On 7 March 1743, the Judge Commissioner
f.or Land Measurements in the Province of
San Miguel, in the Colonial Province of San Salvador,
duly executed the Forma1 Record of the Remeasurement
6. counter Memorial of . EI Salvador: Annexes:
vol. VI, p. 1.of the Commons of Torola, from which the following
-
boundary markers emerge: -
1st Boundary Marker: Quebrada de Guespique;,
2nd Boundary Marker: A peak (unnamed);
3rd Boundary Marker: A peak (unnamed);
4th ~oundary Marker : Portillo de San Diego;
5th Boundary Marker: Portillo de las Tijeretas;
6th Boundary Marker: River de las Canas;
7th Boundary Marker: The Royal Road which goes
from the township of Torola
to Colomoncagua;
8th Boundary Marker: Monte Redondo;
9th Boundary Marker: A ridge Xunnamed);
10th Boundary Marker: A ridge (unnamed);
11th Boundary Marker: La Chorrera;
12th Boundary Marker: La Sirena;
13th Boundary Marker: Quebrada de Guespique.
Al1 these boundary markers set out in the Forma1 Title
Deed to the Commons of Torola are still perfectly
identifiable at the present time and the topography
of the area has been preserved, thus facilitating
its cartography. It is for this reason that when these
Commons were remeasured once again in 1844 al1 the
boundary markers mentioned in the Forma1 Title Deed
of 1743 were taken into account, the only change being
that some of these boundary markers which had not
had a name in 1743 had acquired one in the meantime.
3.86. On 16 March 1844. the Forma1 Record of the
Remeasurement of the Commons of. ~oro'la was
duly executed, from which the following boundary
markers emerge (the same ones as in 1743):
1st Boundary Marker: Quebrada de Guespique; 2nd Boundary Marker: Cerro Chiriqui (this peak
previously had no name);
3rd Boundary Marker: Cerro Portezuelo (this peak
previously had no name);
4th Boundary Marker: Portillo de San Diego;
5th Boundary Marker: Portillo de las Tijeretas;
6th Boundary Marker: River de las Caiiasor
~.
Yuquina;
7th Boundary Marker: The Royal. Road which goes
from the township of Torola
to Colomoncagua;
8th Boundary Marker: Monte Redondo;
9th Boundary Marker: Loma Mongueta (this ridge
previously had no name);
10th Boundary Marker: Loma Esquingla (this ridge~
previously had no name);
11th Boundary Marker: La Chorrera and the meeting
of the Quebrada del Burro
and the Quebrada del Jicaro;
12th Boundary Marker: La Sirena;
13th Boundary Marker: ~l Salto, a place on the
River la Chorrera (not
previously identified);
14th Boundary Marker: AgUa Caliente. a place
on the River La Chorrera
(not previously identified);
15th Boundary Marker: Quebrada de Guespique.
The identical nature of these boundary markers clearly
demonstrates the accuracy and juridical consistency
of the Title Deeds presented by El Salvador. However.
it should be noted that this remeasurement. based
on the original Forma1 Title Deed, encountered the
opposition of the inhabitants of Colomoncagua. whoc'
claimed on the basis of their own Forma1 Title Deedto Commons, that the boundary line Of the two Commons
ran from Las Tijeretas to Los Picachos. while the
inhabitants of Torola claimed that the boundary line
followed tKe course of the River de Cadas or Yuquina.
Faced with this apparent conflict between two Forma1
Title Deeds to Commons both issued by the Spanish
authorities in the colonial area, the Judge compared
the two Forma1 Title Deeds and discovered that the
Forma1 Title Deed to the Commons of Colomoncagaua
itself stated that the boundary was the River Yuquina.
that is to say the River de las Canas (7) and so upheld
the claim of the inhabitants of Torola.
3.87. In opposition to the Forma1 Title Deed to
the. Commons of Torola presented by El
salvador, the Memorial of Honduras (8) bases its claim
in this sub-sector on no less than nine Title Deeds.
TheSe are as follows:
(i) The measurement of 1653 carried out by Pedro
Romero;
-
(ii) The measurement of 1663 carried out by Pedro
Romero;
(iii) The.measurement of 1665 carried out by Pedro
Romero;
(iv) The measurement of Las Joyas and Las
Jicoaguitas of 1694;
(v) The measurement of 1766 carried out by
Pineda;
(vi) The measurement of 1767 carried out by Garcia,
t. Memorial of El Salvador: Paragraph 6.45..
8. Memorial of Honduras: pp. 231-240.
.. Jalon;
(vii) The litigation of 1770 brought by La
Magdalena;
(vii i> The visual recognition of boundary stones
of 1793 carried out by Andrés Perez;
(ix> The Forma1 Title Deed to the Commons of .
Santo Domingo of 1812.
3.88. ' Of the Title Deeds listed above, those
numbered Ci), (ii) & (iii) do not have any
probative effect in this frontier litigation since
they are not F\rma1 Title Deeds to Commons and so
the inhabitants of Torola were not given the
opportunity to raise any objections thereto. The Title
Deed numbered (v) was executed by Pineda following
a circuit of the sector on horseback and was
subsequently annuled by the "Real Audiencia" of
Guatemala in 1767 (g). The Title Deeds numbered (vi),
(vii) & (viii) were based on excessive unilateral
claims made by the inhabitants of Colomoncagua to
which the inhabitants of Torola were not given any
opportunity to object. In the Title Deed numbered
(vi). for example. the Judge "m'en remettant uniquement
à ce qu'a dit et ce qu'a signalé la communaute du
village mentionné ~Colomoncagual" who i.ndicated
as their boundary markers markers which did not belong
to them From the Title Deed numbered (vii),
(11).
it emerges that what was' being claimed by the
9. Memorial of Honduras: Annexes: pp. 1213-1214
10. Ibid.: p. 1219.
11. Ibid.: p. 1229. indigenous community of Colomoncagua "n'est pas juste
.') en raison des distances qu'il y a de leur village
auxdit domaines!' and that these claims arose "de
prétextes malicieux qu'ils inventent pour dissimuler
la vérite" From the Title Deed numbered (viii)
(12).
it emerges that the passage cited by Honduras is basid
"d'apres ce qu'ont déclaré ces habitants' (de
Colomoncagual. ayant &garé leur titre" (13)'
3.89. One of the Title Deeds that survives the
critical ,examination made in the previous
paragraph, that numbered (iv). on the other hand.
confirms the position maintained by El Salvador in
that it states that the measurement reached "un grand
torrent appele Yuquina O on a mis une borne" (14).
Given that the Yuquina is the River de las Canas.
this Title Deed is in favour of El Salvador
(15)'
3.90. To confirm still further the position of
El Salvador. it is appropriate to mention
that. at the Conference held at Nahuaterique in 1869.
the Commissioners Sancho and Chaves considered the
question of the boundary between Colomoncagua and
Torola. In spite of the fact that the Commissioner
of Honduras had not actually been given powers to
negotiate the boundary in this sector. the General
Record of the Conference states
(16):
12. Memorial of Honduras: Annexes: p. 1293.
13. Ibid.: p. 1332.
14. Ibid.: p. 1185.
15. Ibid..
16. Ibid.: p. 64. "Pourtant, sur la demande et l'insistance des habitants
des deux villages sus-mentionnés, nous continuons,
après avoir examine superficiellement les titres de
1'une y 1'autre partie jusqu'au moment oil nos recon-
-naissons le cour de la rivière dite "Rio de la Canas"
qui forme ladite limite en aval. Mais vu que. pour
decider.la demarcation a partir du point de confluence
antérieur jusqula la rivière Las Canas, le Délégue
du Honduras manque de la susdite autorisation. les
deux villages decidèrent que celui de Colomoncagua
la reclamat-a à son Gouvernement et que. pendant ce
temps les deux Delégues attendront."
In any event it was clearly recognised by both
Commissioners that the boundary extended as far as
the River de las Cafias.
3.91. On 15 July 1869 the Conference of Champate
was held between the Republics of El Salvador
and Honduras with the object of settling the
outstanding questions relating to the boundary between
the townships of Torola in El Salvador and Colomoncagua
in Honduras. At this Conference, the following
documents were produced: the Title Deed of Colomoncagua
- (a remeasurement of al1 the lands carried out in 1793
by Andres Perez), the remeasurement carried out in
1667 of the Title Deed of the Hacienda an‘ Diego.
and the remeasurement of 1743 which constituted the
Forma1 Title Deed to the Commons of Torola.
3.92. In the Forma1 Record. of this Conference,
the sainetwo Commissioners. Sancho and Cruz,
were unable to reach any final agreement. although
they. did agree to accept certain boundary markers,
such as that at Las Tijeretas and the road from Gracias
a Dios to San Miguel. It is significant that. although
no final agreement was reached. the Commissioner of
Honduras, Chaves. indicated in his Report to his Government that it had not been possible to reach
any agreement "parce que je ne possedais pas de
documents qui me serv,nt d'appui pour une decision
definitive". although he referred to a "document unique
qui declare. pour notre part que la ligne frontiere
des juridictions est la rivière de las Canas"
(17)'
3.93. At this Conference, the Commissioner of
El Salvador based his claim on the Forma1
Title Deed to the Commons of Torola and the Title
Deed to the Hacienda of San Diego, affirming onc.
again that the River de las Callas was the boundary
of the two Republics, and declared that he considered
that the visual inspection carried out by Andres Perez
in 1793 "était nul et sans aucune valeur puisqu'il
entrait dans les terrains contigus enveloppant m@me
le village de San Fernando qui est tres loin" and
because "ne correspondait pas du tout aux arpentages
qui figurent sur le titre de Colomoncagua" (18)'
3.94. OIndeed. the Remeasurement of Colomoncagua.
authorised by Andrés Pérez in 1793. contains
many contradictions and irregularities which deprive
it of any probative value. First, on the one hand
, it is affirmed in one of the passages of the Title
that the Villorio of Sap Fernando is situated within
'the boundaries of the lands of the settlement of San
Pedro Colomoncagua, while on the other hand it is
stated that. on the occasion of the instalation of
17. Memorial of Honduras: Annexes: pp. 85-86.
18. Ibid.: p. 67. new intendencies, a Villorio called San Fernando was
creafed at the side of the ~ntendency of San Salvador;
as a resu1.t the precise location of the Villorio San
-.
- Fernando remains in doubt according to this Deed,
although in reality there. is no doubt whatsoever that
it belongs to what is now the Department of Morazan
in 'the Republic of El. Salvador forming part of the
townships included in the Forma1 Title Deed to the
~ommons of Arambala and Perquin in ~i Salvador - it
is for this reason that there was opposition from
the town council of San Fernando to this remeasurement.
as the Deed specifically States.
3.95. Secondly, in the Forma1 Record of the
Remeasurement of 7 March 1793, Andres Pérez
directed the measurer to extend the cord and at that
moment appeared Guillermo Reyes, declaring that he
was in possgssion of two pieces of land. La Magdalena
and La '~egra Vieja, both of which had been given to
him by Luis de Abreu on 16 November 1793. How could
these lands possibly have been given to him on 16
November 1793 when the meas,urement was being carried
out on 7 March 1793?
3.96. Thirdly, ' the Title Deed of Remeasurement
is so irregular that not even the inhabitants
of Guarajambala in what is now the Republic of Honduras
wished to accept it; they were opposed to the fact
that it was the Intendent-Governor and Commandant-
-General of the Province of Honduras who issued this
Title on the grounds that this should have been done
by the "Real Audiencia" of Guatemala, as is stated
in the following section of the Title Deed:
-"ils (les natifs du village de Guarajambalal ont
repondu en présence de toutes les personnes ci-dessusmentionnées qu'ils n'assisterait pas et qui ne seraient
pas présents à l'exécution qui a été ordonnée ni encore
moins qu'ils iraient B la ville de Comayagua parce
que ce n'@tait pas une audience et qu'ils iraient
plutfit à celle du Guatemala, et coinmeje les eiijoignai
pour la deuxième et la troisième fois de la faire.
ils ont répondu la même chose" (emphasis added) (19)'
It was precisely this irregularity that led the
Commissioner of El Salvador to declare this Title
to be nu11 and devoid of value in the Forma1 ~ecord
of the coi-~ferericof Champate on 15 July 1869.
3.97. Fourthly. yet another irregularity and
contradiction in' this Title which deprives
it of value is the fact that. when on 15 May 1766
the measurenient of Colomoncasua had been verified.
it was recognised that in the area of Santa Ana in
the southern part tliereof the dividing line between
the Province of ond du ardasthe Province of San
Salvador was such as to leave the River de las Callas
within the Province of El Salvador, whereas in the
Remeasurement of 1,793the dividing 1ine was no longer
the River de las Canas but a 1ine we11 inside'the .
territory of the Province of _EL-SSlvador; this is
the reason why the .inhabitants of Torola objected
to the Remeasurement.
CC) ~oloni'al~ocuments which confirm the FortnalTitle
Deeds to the Commons of Arambala. Perauin and ~orola
3.98. The existence of royal landholdings in this
19. Memorial of -Honduras: Annexes: p. 1316;
Counter Memorial of El Salvador: Annexes:
Vol. VI, p. 105. sector is corroborated by the document in
which the "Bachiller" (graduate) Andres de Aragbn
Cura. the beneficiary by royal patronage of the
judicial district of San Francisco Gotera in the
jurisdiction of San Miguel in the Province of San
Salvador. reported that in the townships of Torola
and Perquin of that jurisdiction there were royal
landholdings as yet uncultivated that belonged to
the Crown, thus ratifying the existence of the royal
landholdings to which reference is made in the Forma1
Title Deeds to the Commons of Arambala and Perquin
and of Torola (20)'
3.99. The destruction by fire of the township
of Santiago Torola. in the jurisdiction
of San Miguel in the Province of San Salvador, is
proven not only by the statements of the inhabitants
of that township recorded in their Forma1 Title Deed.
but also by the following documents. First. a document
in which the inhabitants of the township of Santiago
Torola. in the jurisdiction of San Miguel in the
Province of San Salvador. declared that on 14 January
1735 their town. their church. their houses and al1
their possessions were destroyed by fire and for this
reason they asked to be exempted from the payment
of taxes (21)' Secondly. a document which contained
a report as to the decayed state of the royal
"Hacienda" of the indians of the township of Santiago
Torola, in the jurisdiction of San Miguel in the
20. Counter Memorial of El Salvador: Annexes:
Vol. VI, p. 144.
Ibid.: Vol. VI. p: 152. Province of San Salvador, because of the burning down
of their township (22). Thirdly. a document containing
a request for the remeasurement of lands in the
township of Santiago Torola in the jurisdiction of
San Miguel in the Province of San Salvador in favour
of Sebastiana de los Reyes and in which it is stated
that Captain Juan de Cailas. Subdelegate Judge of the
' Sole Court of Land Measurements at the request of
the inhabitants of the township of Torola carried
out the remeasurement of their Coinmonsand their lands
because their Titles had been destroyed by the fire
which devastated their township (23).
(D) The Validity of the Naps Presented
3.100. 'In respect of both the Sub-Sector of
Nahuaterique and the Sub-Sector of Torola
maps have been prepared showing the most important
and significant Title Deeds relating thereto. Many
of the Title Deeds presented by Honduras cannot be
classified as important and significant; either because
they relate to areas outside the disputed sectors.
as is the case with the Title Deed of El Obraje de
Santa Maria Magdalena of 1629. which relates not to
this sector but to the sector of Tecpanguisir Mountain;
or because they identify only one boundary marker
and thus obviously cannot be mapped; or because the
.documents in question have fissures or are illegible
in part or in whole. as is the case with the Title
&'
22. Counter Memorial of El Salvador: Annexes:
- Vol. VI. p. 209.
23. Ibid.: Vol. VI. p. 190.Deed of Yarula of 1754 and the Title Deed of Joateca
of 1682.'
3.101. Consequently. following a selective analysis
of the Title Deeds presented in relation
to this sector, two maps have been drawn up. The first
(24) is a representation of the Forma1 Title Deeds
to the ~ommoris of Perquin and Arambala of 1815 and
of Torola of 1743, both presented by El Salvador,
together with the Title Deeds of San Pedro Colomoncagua
of 1793, of Santo Domingo Cotala of 1812, of Las Joyas
and Jicaguites of 1694 and of the Sitio de San Blas
of 1746. al1 presented by Honduras. An analysis of
this map demonstrates that the two Forma1 Title ~eeds
to Commons presented by El Salvador, the Forma1 Title
Deeds.to the Commons of nrambala and Perquin. cover
the whole of this disputed sector and that al1 the
boundary marliers mentioned therein are still
identifiable at the present day; on the other hand.
so far as concerns the Title Deeds presented by
Honduras, the Title Deeds of the Sitio de San Blas
and of Santo Domingo Cotala are shown to deal with
areas which are outside the sector at present under
discussion and thus have nothing to do with the matter
in hand; the only Title Deed presented by Honduras
that apbarently deals with the sector at present under
discussion 'is the ~emeasurement carried out by AndreS
Perez in 1793 but this Title Deed. as has already
been stated in this section of this Counter Memorial,
contains many irt-egulartiies and contradictions, on
24. Counter Memorial of El Salvador: Map 3.H..1 I
88920' asqio'
REPRESENTATION AS A WHOLEOFTHE COMMONLANDSOF PERQU~N-ARAMBALA
(1,01S),OF TOROLA(1.743). EL SALVADORANDOFTHE LANDSOF SANPEDROCO-
LOMONCAOUA1 ( ,7931 COTA L1.0121,LAS JOYAS ANDOF JICAGUITES(1,694)
AND 'SANBLAS(1,746).
-I*oo' CAYASCA lM"od-
.
-- FRONTIER LINE SUPPORTED BY ELS
COLWoNCAeUA
- --- FRONTIER LINE SUPPORTED BY HON SANPERWANM)
omoncogw( 1,793)
.,. .
nwenrro Qda.del Jhro
con Rio La Chorrero
Carra Colorado
erra Guayampol
LANDS OFSAN PEDRO LANDS OFLAS JOYAS
AND OFJlCAGUlTES.(1,694)
INSTITUTO GEOGRAFICONACONAL Scok 1:100,000
"INGENIERO PAMO ARNOLDO GUZMAN" LANDS OF COTAL~
MINISTERIDE OBRS ~BLICAS [-!LANDS OF SAN BLAS(l,746)
REP~LICA DE EL SALVADOR ss20' 8qlo'
* account of which it has already been declared nu11
and valueless on many occasions; besides there 'is
a fundamental contradiction between this remeasurement
of 1793 and that of 15 May 1766, in which the
, measurements of Colomoncagua were verified. since
in this latter remeasurement Honduras accepted that
'in the area of Santa Ana the dividing line between
the Provinces of San Salvador and of Honduras was
the River de Cafias.something which, as can be observed
. on,.the second map (25)' coincides exactly with the
Forma1 Title Deeds presented by El Salvador in that.
Title Deed, relating to the remeasurement of
Colomoncagua of 1766 presented by Honduras shows
exaçtly the same boundary between the two provinces
as the Forma1 Title Deeds to the COmmOns of Aratnbala
and Perquin of 1815 and of Torola of 1743 presented
bv El Salvador.
V. Doloi-es.Monteca and Poloros
3.102. The ~emor'al of Honduras commences by
recognising that (26) "le conflit des limites
entre El Salvador et le Honduras dans le secteur de
Dolores est rie à partir d'un differend préalable sur
les limites de terres" between two indigenous
communities. Polor6s in El Salvador and Opatoro in
Honduras.
3.103. El Salvador bases its rights on the Forma1
25. Counter Memorial of El Salvador: Map 3.1.
26. Memorial of Honduras: p. 250.I REPUBLICDE EL SALVAWR conTuola I
es.20' m01O1
I I I 1
MAP 3. 1 Title Deed to the Commons of Polor6s of
1760 (27) relying. as is recognised by the Memorial
of Honduras "sur une identite absolute entre
(28)
limite de terres selon les titres. de propriete des
communautes indigènes et limite du territoire de chaque
Etat". On the other hand, Honduras alleges that, when
carrying out the measurement of the Commonsof Polor6s.
the surveyor .made an incidental declaration to the
effect that part of the land which he was measuring
was within the jurisdiction of Comayagua Once
(29)'
again,. the dispute turns on the question considered
in Chapter II of this Counter Memorial name 1y
(30)'
the manner in which Forma1 Title Deeds to Commons
ought to be read and interpreted.
3.104. The Forma1 Title Deed to the Commons of
Polor6s of 1760 extends as far as the Cerros
of Ribita and Lopez, as is indeed recognised implicitly
in the Memorial of Honduras (31)' The Title Deed States
that the measurement "reached a hi11 which divides
these lands from those. of L6pez .... and continuing
in the same direction reached the hi11 of Ribita.
the boundary with the lands of San Antonio of the
other jurisdiction" (32) ' This boundary was accepted
27. Memorial of Honduras: Annexes: pp. 1582
et sea..
28. Memorial of Honduras: p. 256.
29. Memorial of Honduras: p. '254 & Annexes:
P. 1585.
30. Counter Memorial of El Salvador: pp. 33-39.
31. Memorial of Honduras: p. 257 & Annexes:
p. 1585.
32. Counter Memorial of El Salvador,: Annexes:
Vol. III.p. 54.during the Meetings between Cruz and Letona (33)
3.105. What are the objections of the Government
of Honduras to a Forma1 Title Deed to Commons
which is so clear and categorical? Its arguments can
be examined under four headings, which will be
considered in turn: (A) The Citation of Titles not
previously produced; (B) The Invocation of the Concept
of the Natural Frontier and the Identification of
the Cerro of Ribita; CC) The Villatoro Incident; and
CD) The Validity of the Maps Presented.
(A) The Citation of Titles not previouslv Produced
3.106. What striKes the attention above al1 is
that the Title Deeds and Documents now relied
on by Honduras in its Memorial (34) have not been
cited in any of the previous negotiations or
discussions carqied out over the period of one and
a half centuries during which this dispute has lasted.
Save for the Forma1 Title Deed to the Commons of San
Antonio de Padua. occasionally mentioned in documents
of the last century, the .~itle Deeds and Documents
which now appear on the scene have been produced from
the unknown for the purposes of this litigation,
something which inevitably makes them highly
suspicious.
3.107. They were not cited in 1854 when serious
33. Memorial of Honduras: Annexes: p. 170.
34. Memorial of.Honduras: pp. 276 et sea.. conf1icts arose between Opatoro and Polor6s;
they were not mentioned in the instructions given
. to Cruz. the Commissioner of Honduras, on 4 May 1880
1 (35)' nor in the negotiations held at Saco on 6 June
1880, when Honduras. without presenting any documents
in it.s support (36)' formulated in the course of the
negotiations a compromise proposa1 to divide up the
disputed sector. nor in the Rep0r.t of Cruz to his
Government of 28 June 1880 (37), nor in the ~leadings
formulated by Cruz before the Arbitrator, the President
of Nicaragua. in June 1881 (38). nor in the hir rd
Meeting between Cruz and Letona in March 1884 (39)
where, following the examination of the documents
relating to Dolores, "ils ont acquis la certitude
que la ligne frontiere des deux Républiques devra
Ptre déterminée. suivant le titre des "éjidos" du
village de Poloros. car c'est la plus ancien et il
se réfère à des lieux trPs connus".
3.108. Nor were these new Title Deeds which are
now being brought into play invoked in the
protests made by the inhabitants of Opatoro in 1884
nor in the Conference held at 'Guanacastillo
(40)'
where there was an intense discussion of this matter
on 22 November 1888 and in the course of which the
35. Memorial of Honduras: Annexes: p. 98.
36. --bid.: p. 104.
37. Ibid.: p. 107.
38. Ibid.: p. 138.
39. Ibid.: p. 170.
40. Ibid.: pp. 193-195. only Title Deed cited by the delegation of Honduras.
was that executed by President Soto of Honduras in '.
favour of Opatoro Nor are they mentioned in
. (41)'
the Report of the Commissioner of Honduras, Colidres,
of 5 December 1888 Not even Bustamante, who
severely criticised the Formai Title Deed to the
Commons of Polorbs. invoked these documents in 1890.
On none of these previous ,occasions.on .which intense
negotiations took pla'cedid anyone speak of the Title
of Cacaoterique of 1789 or 1803, unheard of until
now. or of the Title to the Commons of the village
of San Miguel de Sapigre, which disappeared from the
map in the Eighteenth Century.
3.109. . An analysis of the document relating to
Cacaoterique explains why this document
has never previously been mentioned. It is not a Formal
Title Deed to Commons but mereiy the recognition of
a series of boundary markers carried out on the basis
of a papei- in incomprehenible language which was
described by Sixto Ganzalez. the Judge in question.
in the following way: "certains papiers rédigés en
langue que personne ne connait y sur du papier
ordinaire. qui ne ressemble en rien A un titre. ni
à un acte de vente publique" (43)' Consequently. the
Judge limited himself to sending the file to his -
superior so that the latter could decide what was
appropriate. There was not, therefore; any judicial
41, Memorial of Honduras: Annexes: p. 243.
42. .' Ibid.: p. 251.
43. Ibid.: p. 1615..approval of this document Al1 that took place was
a recognition of the boundary markers indicated by
the petitioners on the basis of this document and.
in the case of some of them, such as Brinco del Tigre.
there was merely a unilateral comment made as a result
of the indications of the petitioners that in certain
places existed the boundary markers of the Commons
of PolorOs. The Judge proceeded to follow these
boundary markers on the basis of "la relation faite
par 1:ancien notable de village et qui se trouve décrit
dans le vieux document" On the occasion on which
(44)'
there was a conflLct of opi'nionbetween the inhabitants
of Cacaoterique and the inhabitants of Opatoro. the
Judge compared the documents of both parties and
discovered wqu'aucur~ d'eux semble @tre titre valable
et legal. Il s'agit de simples documents et par
consequent ces terrains appartient à Sa Majeste"
(45)'
Basing itself on certain topographical similarities,
the Memorial of Honduras affirms that some of these
boundary markers, such as Planchaquira and Liumunim.
O
constitute various parts of the Commons of Polorbs
such as Ocote Manchon and AgUa Caliente; however.
this comparison is merely speculative. Lastly, the
map included in the Memorial of Honduras shows
(46)
an enormoys area of Commons apparently belonging to
a hamlet which, according to these documents, did
not have more than 243 inhabitants (47)' indeed. the
44. Memorial of Honduras: Annexes: p. 1600.
45. Memorial of Honduras: Annexes: p. 1601.
46. Memorial of Honduras: p. 252: Map 8.3.2..
47. Memorial of Honduras: Annexes: p. '1609.Judge' declared that the two hamlets of Opatoro and
Cacaoterique "possedent tous les deux trop de terres"
3.110. Further. the speculations engaged ,in by
Memorial ,of Honduras reach the incredible
extreme of attempting to resurrect the non-existent
Title Deed to the Commons of the settlement of San
Miguel de Sapigre. which disappeared in the previous
century. The Memorial of Honduras obviously cannot
present this Forma1 Title Deed. lost at the time of
the disappearance of the settlement, but instead tries
to .reconstruct it on the basis of the identity of
its hypothetical neighbours. engaging in a paroxysm
of speculations which it is impossible seriously to
take into account. These speculations are constructed
upon the basis of the Title of Cacaoterique.. whose
probative defects and weaknessks have already been
considered in the previous paragraph. How is it
possible to permit,the invention of a Commons of which
there is no proof whatsoever. T.heMemorial of Honduras
admits that the boundary line that is being drawn'
(49)
is entirely hypothetical. How can it be possible to
base the uti vossidetis iuris on a hypothetical line?
This questions answers itself. This then is the basis
on which Honduras is claiming Monteca? These desperate
efforts of the Memorial of Honduras serve only to
reinforce the predominant character of the Forma1
Title Deed to the Commons of Polorbs and its extension
48. Memorial of Honduras: Annexes: p. 1616.
49. ~emorial of Honduras: p. 287.as far as the Cerros of Ribita and L6pez.. exactly
as was recognised in the Meetings between CI-uz and
Letona in 1884.
(B) The Invocation of the Concept of the Natural
Frontier and the Identification of the Cerro of Ribita
3.111. In the pleadings of Honduras in the
Arbitration carried out by the President
of Nicaragua in 1880, it was recognised that the Forma1
-
Title Deed to the Commons of Opataro states that
"l'arpentage a débuté au mont de L6pez" (50). But
the argument formed by Cruz in his pleadings before
the Arbitrator in relation to the identification of
the Cerro de Ribita is that "cela donnera lieu a une
brusque rupture de la ligne" .... "en formant un angle
auquel repugne la topographie, contraire au cours
de la ligne naturelle>5l). In other words, he here
invoked the concept of the natural frontier which.
as has already been seen in Chapter II of thi5 Counter
Memorial does not form part of the principles
(52)'
of law applicable to this litigation.
3.112. This concept als0 appears in the Report
of the Parliamentary Commission which
proposed the rejection of the Cruz-Letona Convention
(53). This Commission. cited the Report of Lazo. to -
50. Metnorialof Honduras: Annexes: p. 140.
51. Memorial of Honduras: Annexes: pp. 140-141.
52. counter Memorial of El Salvador: pp. 28-29.
53. Memorial of Honduras: Annexes: pp. 205-206.which reference has already been made in Chapter II
of this Counter Memorial (54), which is based on the
natural frontier line between the two Republics. The
Report of Colindres is also based on the idea that
--
"la riviere Torola, depuis sa source et sur la majeure
partie de son cours. est un élément géographique
destiné par la nature servir de frontiere entre
les deux pays"
(55).
3.113. The same idea also inspires the Report of
s us t who imadncttes that "la topographie
du terrain marque-;.d'une maniere claire et precise,
la ligne naturelle permanente" He adds that
(56)-
the boundary which emerges from the Forma1 Title Deed
to the Commons of Polor6s "rompt brusquement la
direction qu'il avait depuis Mansupucagua. pour faire
un grand detour par la butte appelee Lopez, passant
ici au nouveau Ribita" and for this reason
(57)
Honduras rejected "une ligne si irréguliere, suit
y soutient comme légitime. juste et naturelle, celle
qui détermine'la cours ordinaire des eaux" (58)'
3. Il&. What was most inconvenient for Bustamante
in the development of his argument is the
Cerro of Ribita and for this reason he developed his
theory-arguing for a change in the position of this
54. Counter Memorial of El Salvador: p. 29 (fn.).
55. Memorial of Honduras: Annexes: p. 255.
56. Mernorialof Honduras: Annexes: p. 284.
57. Memorial of Honduras: Annexes: p. 288.
58. Memorial of Honduras: Annexes: p. 288.Cerro and the creation of a new Ribita or an Arribitu.
This argument is adopted by the Memorial of Honduras.
This thesis of Bustamante is based on the erroneous
and partial transcription which he made of the Forma1
Title Deed to the Commons of Poloros. He-begins by
recognising, on two occasions. that this is a document
"que je ne connais pas complètement" (59) and that
"je ne connais pas le titre sus mentionne"
(60)'
Nevertheless, he does transcribe, extremely badly,
the key section of this Title Deed. His transcription
is set out below alongside the text of the Title Deed
both in the French translation annexed to the
(61)'
Memorial of Honduras.
Title Deed Bustamante
"et changeant de direc- "et changeant de direc-
-tion. de l'ouest à l'est -tion ouest en est
on se dirigeant au nord on derivant vers le nord
est, on est arrivé a une est arrivé a un côteau
côte que divise ces terres que divise ces terres
avec celles de Lopez. et d'avec celles des Lbpez
l'enclos en question se où selon le droit se
trouve trouve la ferme de Lopez.
hors de cette ferme n'etant pas
l'arpentage et comprise dans ces terres;
l'on a evalue 70 cuerdas, on a mesuré 70 cordes;
59. Memorial of Honduras: Annexes: p. 283.
60. Memorial of Honduras: Annexes: p. 285.
61. Nemorial of Honduras: Annexes: p. 1585.et en continuant dans la et suivant la
mOme direction, on est meme.direction, on est
arrive à la colline de arrivé a la butte de
Ribita. limite Ribita. marquant la .fron-
terres -tière entre les terres.
de San Antonio, de l'autre de San Antonio. de l'autre
jurisdiction et a la rivi- jurisdiction et le fleuve
-ère de Unire. et l'on a de Unire. on a
evaiue 70 cuerdas ...." mesuré 70 cordes ...."
3.115. On the .basis of thls passage, which clearly
does not coincide with the Forma1 Title
Deed, Bustamante concludes that the measurement of.
the latter is defective and that the Cerro de Ribita
cannot possibly be located where it actually is and
that there must be a new Ribita and a mountain
"arribita". He States, erroneously
(62) :
"si l'unire et Ribita ou Arribita. sont un m@me point-
des points cardinaux de l'arpentage, comme precisement--
il doit lS@tre. il est hors de question. que cette
butte ne soit pas celle /reconnue par les commissions
salvadoriennes. etant donne que ce1le-ci estTdzi-stante
de Unire de 4.124 m ni plus ni moins". ,
AS can be seen, the omission of one word. ("a" in ,the
original Spanish text, "dans" in the French translation
above) i-nduced Bustamante to believe that the
measurement identified the Cerro of Ribita with the
River Unire. whereas in reality these are two-distinct
points which the surveyor reached one after the other.
The location of the Cerro of Ribita, which was defined
62. Memorial of Honduras: Annexes: p. 287.
,geographically speaking in the Conferences between
Cruz and Letona as the "pic le plus élevé des quatre
que forment les alentours de Rivita" was
(63)'
recognised and accepted by Honduras at the Conference
of Guanacaztillo on 21 November 1888; there, although
no final agreement was reached, Honduras accepted
that "la ligne de mémarcation arrive jusqu'au sommet
du coteau "Rivita"" (64)'
3.116. In the Report of Aracil Crespo to the
President of Honduras in 1888. the Ribita
is defined as the "source (de la Rivière de Unira1
située au pied de la colline Rivita"
(65)'
3.11.7. Barbarena describes the Ribita as "un mont
,droit et rocaillé de- 1.206 métres" where
"se termine la limite orientale*et commence la partie
boréale de de notqe frontière" He adds that
(66).
the Cerro of..Lope2 "nomme parce qu'auparavant une
famille Lopez y avait une ferme. est un pic isolé
et rocai1leux," .... "pratiquement de la m@me altitude
que le Ribita"
(67)'
3.118. The Memorial of Honduras echoes the
(68)
very grave accusation made by Bustamante
63. Memorial of Honduras: Annexes: p. 170.
64. Memorial of Honduras: Annexes: p. 241.
05. Memorial of Honduras: Annexes: p. 257.
66. Memorial of Honduras: Annexes: p. 263.
67. Memorial of Honduras: Annexes: p. 264.
68. Memorial of Honduras: p. 265.
Oagainst the Canadian surveyor Byrne, who worked for
Honduras at the time of the Conferences between Cruz
and Letona, that he had destroyed a boundary marker
b
which was in favour of the country which had contracted
him. Bustamente based this charge on the notebook
kept by Byrne; however, this document has not been
presented by Honduras and so serious an accusation
should only be made on the basis of documentary
evidence.
(C) The Villatoro Incident
3.119. The Memorial of Honduras interprets
(69)
the fact that Villatoro directed himself
to the Government of Honduras in 1854 complaining
that the inhabitants of Opatoro were trespassing on
the. property of Monteca and; the fact that the
Government of Honduras ordered the indigenous
population to withdraw from these lands as the exercise
by Honduras of State authority over this territory.
3.120. In turn, El Salvador has interpreted this
this incident as in di catin to. the contrary,
that the Decree issued by Honduras implied a
recognition of the sovereignity of the authorities
of El Salvador over the territory in question. since
the Uecree was executed taking into consideration
the fact that the Title Deed granting a private
property interest to the Villatoro family had been
executed by the Government of El Salvador (70)'
69. Memorial of Honduras: p. 254.
70. Memorial of Honduras: Annexes: p. 104. 3.121. Neither of these two arguments is relevant
for the purposes of deciding this frontier
dispute. Whethes or not the Decree of Honduras
constituted an exercise of State authority or instead
a recognition of sovereignity, the fact that this
incident occured in 1854 means that it cannot
constitute evidence that, as the Memorial of Honduras
argues (71). "l'ancienne province de Comayagua ejerçait
sa juridiction au sud de la rivière Torola sur la.
site de Monteca". For the'same reason, the Title Deeds
executed in 1856 and 1857 by Honduras and. finally.
in 1879 by the President of Honduras in favour of
the.inhabitants of Opatoro similarly have no relevance
whatever to this judicial proceedi'ng.
(D) The Validity of the Maps Presented
3.122. El Salvador has closely examined the maps
presented by Honduras with its Memorial
and has reached the following conclusions. First,
(72)
the cartographic interpretation of the Title of
Coajiniquil does not have anything to do with the
sector in dispute since this Title relates to a sector
which has already been delimited by the General Peace
Treaty of 1980 signed by both the Parties to this
litigation. Second1y. Honduras has presented in an
arbitrary manner the cartographic interpretation of
a document which refers to .the boundaries of the lands
of Cacaoterique in the first place this document
(73)'
71. Memorial of Honduras: p. 254.
72. Memorial of Honduras: Map B.3.2..
73. Memorial of Honduras: Map 3.5.. is not a Forma1 Title Deed to Comnions and. in the
second place, the map purports to show the location
of the boundary markers of Planchanquira and Lumunin
but incorrectly locates them in the positions of the
boundary markers of the Hat0 de Lopez and the Quebrada
de las Ventas. Thirdly, the boundary markers contained
in the Forma1 Title Deed to the Commons of San Juan
Poloros of 1760 are perfectly identifiable both in
the topography oc last century and in the topography
of the present time. which proves that the frontier
line claimed by El Salvador is completely supported
by this Forma1 Title ~eed to the Commons of Polor6s
Of 1760.
VI. The Estuarv of the River Goascoran
3.123. El Salvador argues that the line of the
frontier in this sector is the oldest and
most easterly of the branches of the River ~oascoran,
which flows into the 'Gulf of Fonseca opposite the
Island of Zacate Grande in the place known as the
Estuary of la Cutu. which is within the jurisdiction
of Pasaquina. in the Department of La Unibn in the
Republic of El Salvador. Honduras in its Memorial
estimates that the claims of El Salvador in this sector.
have been made somewhat late in the day and have
objectives of a strictly geopolitical nature; this
affirmation is not correct, as will be demonstrated
in the following paragraphs, since the only reason
why El Salvador has not previously discussed this
sector is that it was already within its jurisdiction
and because there existed acquisecence and recognitionby Honduras that this sectorwas within the territory
of El ~alvador.
3.124. Thus, in the period between the Conference
of the Mountain El Mono in 1861 and' the
Conference of Champate in 1869, this sector was the
subject neither of controversy nor of discussion since
Honduras presented no claims thereto and the sector
thus remained outside the dispute. In the Conferences
of Saco (now known as Concepcion de Oriente) in the
Republic of El ~alvador from 3 to 7 June 1880, allusion
was made to this sector and in the Forma1 Record
thereof of 4 June 1880, the Commissioners of the two
Republics, General Lisandro Letona for El Salvador
and Dr. Francisco Cruz for Honduras, made the following
declarations in this respect:
"and finding that according to the common feeling
of the settlements of both countries, the eastern
part of the territory of El Salvador is divided from
the western part of the territory of Honduras by the
River GoascorAn, it is agreed to recognise this river
as the boundary of both Republics from its mouth in
the Gulf of Fonseca in the Bay of La Unibn" (emphasis
added) (74).
It is important to emphasise that' the qommissioners
did not at any point specify which mouth of the river
they were going to take into account for the purposes
of establishing the frontier between the two Republics
but, given that the frontier in this sector had never
previously been questioned by Honduras, which had
in consequence recognised the sovereignity of El
Salvador in this area. it is logical to interpret
74. Counter Memorial of El Salvador: Annexes:
vol. v."p. 1.: that what the Commissioners were recogntsing as the
frontier was the old mouth of the River Goascoran.
3.125. 0 Exactly the same occured in the Conferences
of 1884. which were similarly held in the
town of Concepci6n de Oriente between the same two
Commissioners. since neither in these Conferences
was it determined which mouth of the River Goascoran
was to be taken into account and, given that no claim
was made by Honduras in this sector, there was
recognised as such the old mouth of the River
Goascoran. These Conferences established the following:
"As was determined in'the said Conferences. the eastern
part of the territory of El Salvador is divided from
the western part of the territory of Honduras by the
River Goascoran which ought to be taken as the frontier
of both Republics from its source in the Gulf of
Fonseca or Bay of La Uni6n"
(75)'
In the same manner, the mouth of the River Goascoran
was reco~nised in the Boundary convention of 1884.
generally known as the Cruz-Letona Convention. which
in Article 3 thereof provided:
"The western part of the land boundary begins at the
mouth of the GoasCorAn" (76)'
In the Conferences of 1888, this sector of the frontier
was not disputed by Honduras.
3.126. Honduras at present is trying to base its
position in this sector on the uti ~ossidetis
75. Counter ~emorial of El Salvador: Annexes:
vol. v, p. 3.
76. Counter Memoria? of El Salvador: Annexes:
.. vol. v. p. 5.iuris of 1821 by establishing that the River Goascoran '
was the boundary of the jurisdictions of the colonial
provinces of Comayagua and San Miguel; it supports
this affirmation primarily on the separation of Jerez
de Choluteca from the jurisdiction' of Guatemala. to
which it formerly belonged, and its subjection to
the "~lcaldia Mayor" of Tegucigalpa as from 1580.
However, this argument is not correct, because in
1580 the "Alcaldla Mayor" of Tegu'cigalpa was not
created as an independant province with its own
territory; rather the office of "Alcalde Mayor" of
Mines was established by the "Real Audiencia" of
Guatemala with the title of "Alcalde Mayor" of Mines
in the Province of Honduras with exclusive jurisdiction
to hear matters involving mines and with jurisdiction
over matters of mines in the jurisdictions of San
Miguel and of Choluteca, both within the jurisdiction
of the Province of Guatemala. This is demonstrated
by the Commission which was given to Juan Cisneros
de Reynoso c,~).
3.127. Numerous documents prove that this provision
executed by the President-Governor of
Guatemala in favour of Juan Cisneros de Reynoso. f'ar
from adding territory to Honduras, as is claimed,
instead removed from the Governor of Honduras his
jurisdiction over matters concerning mines, since
both the mines of Honduras and the mines of Sam Miguel
and Choluteca remained under the administrative control
77. Counter Memorial of El Salvador: Annexes:
vol. v, pp. 121-122.of the President-Governor of Guatemala.
3.128. In the Royal "05dula" executed by the King
on 18 Wovember 1581. one year after Cisneros
de ~ehoso had been appointed as "Alcalde Mayor" of
mines. the King asked the "Real Audiencia" to send
hii a list of the settlements that existed within
its area. both Spanish and Indian. the form in which
justice vas administered. in which -there were
established "Corregidores" and "Alcaldes Mayor" and
by whoi they had been established. and of al1 the
other public offices which had been established in
its area Complying with this Royal "Cédula".
<78>-
the Governor of Honduras made a list of al1 the
settlements under his jurisdiction in the year 1582
as well as of the public offices that had been
established. In making reference to the "Alcalde Mayor"
of Hines. he mentioned the mines in Honduras that
had been discovered and populated and complained that:
"The present and past Governors of Honduras put a
Lieutenant-Governor who administered .justice without
any salary and they continued this custom until the
lawyer Valverde came as President of the "Real
Audiencia" of Guatemala which will have been more
or less three years ago. He. perverting this system
and custom. established an "Alcalde Mayor" of the
said mines with a salary paid from the Royal Excheauer
as appears in a document appended to this report in
which it is placed on record who the person so
established is and the salary that he is paid and
the jurisdiction that he has and the officials which
he establishes, which information it is requested
that Your Majesty sends to be seen by vour Royal
78. ~ounter Memorial of El Salvador: Annexes:
vol. v. p. 7.Council of the Indies." (emphases added) (79)
In this passage. the Governor. Alonso de Contreras
Guevara. clearly stated that he had nominated the
Lieutenants for the Mines and that the President of
the "Real Audiencia" had deprived him of this power
and that the President himself established this office
and assigned its salary and jurisdiction by virtue
of which the Mines remained outside the control of
the Governor of Honduras and. as a result of this.
the latter requested or appealed that this matter
be considered in the Council of the Indies.
Subsequently the Governor made an exhaustive and
detailed list of al1 the Settlements that existed
in the jurisdiction of Honduras; this extensive list
does not include Choluteca and the townships of its
jurisdiction which totally destroys the argument
advanced by Honduras that the creation of the "Alcaldia
Mayor" of Mines of Tegucigalpa annexed Choluteca to
the jurisdiction of Honduras (80).
3.129. In the General Archive of the Indies.
Guatemala, there is a further Report made
by the Governor of Honduras in 1581. in which it is
stated that the "Alcalde Mayor" of Mines was usurping
the jurisdiction of his Government and not letting
him administer .justice. arguing that the Governor
had no jurisdiction whatever in Honduras because it
had been taken away from him by the "Real Audiencia"
79. Counter Memorial of El Salvador: Annexes:
vol. v. p. 12.
80. Ibid..' of Guatemala
3.130. In a subsequent Report made by Juan de Guerra
Ayala in 1608 to the Government of Hontiuras.
he made the foll~~ing complaint:
"And because my Governor was a miner. they devrived
him of the iurisdiction over the mines and put an
Alcalde Mayor over them" (emphasis added) (82)
3:131. Thus, although it is true that the "Alcaldia
Mayor" of Mines of Tegucigalpa subsequently
was transformed in the "Alcaldia Mayor" of Tegucigalpa,
it is necessary to clarify that even then in civil
and administrative matters it was subject to the
jurisdiction of the Government of Guatemala, while
in ecclesiastical matters it was subject to, the
jurisdiction of Bishopric of Guatemala. Finally in
1791 the Alcaldia Mayor of Tegucigalpa was unified
with the Intendency of.,Comayagua, which proves yet
again that it was not previously Part of Honduras
but of Guatemala. and then subsequently in 1816 was
separated from the Intendency of Comayagua. thus
becoming and remaining independent until the
independence of Central America.
(B) The ~e'ltaof the River Goascoran
3.132.. so far as concerns the geographical problems
of this sector. the geographer Bustamante.
81. Counter Memorial of El Salvador: Annexes:
voi. v. p. 36..
82. Ibid.: Vol. V, p. 27.quoted on so many occasions by the Memorial of
Honduras, observes that (83): "pour etre plus basse
la c6te salvadorienne que celle du Honduras. comme
en effet elle l'est, on nourrit la peur qu'avec le
temps. le fleuve puisse changer son cours actuel.
et laisser en faveur de notre territoire le point
appel@ La Bahia. entre le Goascoran lui-m@me et el
Pasadero, ainsi que les deux petits coteaux tres
ressemblants l'un à l'autre appel@ Muruguaca". Further.
the faCt that changes have occured in the course of
the river. in particular because of the construction
of the dam at Los AIIIateS, is admitted by the Memorial
of Honduras (84)' It should also be noted that the
passage from the Report of Bustamante cited above
indicates that changes in the course of the river
would inevitably be detrimental to the territorial
extension of El Salvador in this sector.
3.133. . According to the prevailing principles of
Public International Law. the juridical
consequences of the different types of change of course
are distinct. These principles. following the doctrine :
of Roman Law, normally distinguish between aluvio
and avulsio, depending on whether -the addition of
new land to one of the banks constitutes a slow and
gradua1 process of erosion or a sudden and violent
phenomenon qhich produces a change in the course of
the river. In the former case. these principles
consider that the State on whose shore the accretion
is . produced extends its territorial sovereignity
83. Memorial of Honduras: Annexes: p. 281
84. Memorial of Honduras: p. 361. thereover. so that the course of the river continues
to constitute the international frontier. On the other
hand, in the latter case. the same does not occur
since the prevailing opinion is that the international
frontier continues to be the former river bed which
has dried up because of the abrupt change of the course
of the waters.
3.134. On ,the other hand. there are prestigious.
authors such as Anzilotti who criticise
this distinction drawing attention to the fact that. .
this alleged rule. is merely an opinion as a matter
of principle and that the problem ought instead to . ~
be'rqsolved in every case .depending on what was the
intention of the ~ar€ies when they fixed the river
. .
as their boundary (85). Further. the Brazi 1ian
commentator on treaties. Accioly, indicates various
cases and various treaties in which the principle
that the frontier followed the new course of the .river
was.applied on the basis that the State who. lost a
portion of its territory had to be indemnified
(86): . .
. .
3.135. Taking into account the uncertainty and
lack'of definition which exists in relation
to this question. no foundation can be attributed
to the arguments formulated in the Memorial of Honduras. . ..
to the effect that over the years acquiescence. on^ . .
the part of El Salvador with respect . to the
85. Scritti di Diritto Internazionale Pubblico:
(1956) Tom0 1, Pp. 693-705.
86 Tratado de Derecho Internacional Publico
(Spanish translation): Tomo II. .pp. 23
ses..recognition of the River Goascoran as 'the frontier
of the two States has been built up (87). A river
which is exposed to the type of 'mutations to which
the River Goscoran is subject does not constitute
a. boundary which is. sufficiently certain for
acquiescence to take place in respect thereof.
Acquiescence can only occur after the Parties have
reached an agreement or there has been a judicial
decision as to what norm has to be followed in the
event of mutations or changes in the course of the
river.
-.
CC) The vaiidity of the MaDs Presented
3.136. Following as always the criterion of a
selective analysis of the different Title
*
Deeds presented by bqth El Salvador and Honduras in
relation to this sector. a map has been drawn up
(88)
showing those Title Deeds which have been able to
be mapped; Honduras, as in the other disputed sectors,
has presented Title Deeds which cannot be classified
as important either because they relate to areas
outside the disputed sector or cannot be mapped because
they identify only one or two boundary markers - this
is the case, for example, with 'theTitle Deeds relatin~
to the Remeasurement of the Sitio de Mongoya in 1671,
to the Sitio de la Estancia or ~uayabal of 1691. and
to the remeasurement of Mongoya of 1696.
3.137. In this sector El Salvador has presented
87. Memorial of Honduras: PP. 369 et sea..
88. Counter Memorial of El Salvador: Map 3.K.. the Title ~eed executed in favour of Juan
Bautista de Fuentes, resident of the town of San
Miguel. in respect of the land known as "Los Amates"
in the Province of San Salvador Honduras. on
(89)'
the other hand. has presented many remeasurements
of areas situated within the jurisdiction of the
"Alcaldia Mayor" of Mines of Tegucigalpa. inc1,uding
among others the Title Deed of the Sitio de la Estancia
or Guayabal of 1691 and the Remeasurement of the
Mongoya of 1696. and it has been amply proved by the
documentation presented by El Salvador with this
Counter Memorial that both the "Alcaldla Mayor" of
Tegucigalpa and the "Alcaldia Mayor" of Mines of
Tegucigalpa were at the. 'relevant times subject to
the jurisdiction of the President-Governor of Guatemala
in the Province of Guatemala.
3.138. Consequently. a map of this sector has been
drawn UP . consisting of a combined
representation of the Title Deeds that can be mapped.
those of Langue of 1821, the Isla de ~alicanto of
1861. and of Goascoraan of 1821 (First and Second
Parts). al1 presented by Honduras, and that of Los
Amates of 1695 in favour of Juan Bautista de Fuentes
of 1695. presented by El Salvador. As the map shows.
the Title Deed of Goascoran of 1821 (First and Second
Parts) relates to an area which has nothing to do
with the problem in hand since it is outside the
89. Counter Memorial of El Salvador: Annexes:
vol. VII, p. 77.
90. Ibid.: Map 3.K.. REPRESENTATION AS A WHOLEOF THECOMMON LANDSOFTOWNOf
LANGUE (1821),ISLRNDOF CALICANTO (1861A~D18641,LANDSOFJUAN
BAUTISTADE FUENTES(1695), ANDCOMMONLANDSOF GOASCORAN
MARCH1821 (la'AND 2"' PARTS 1.
Scale1 100.000
FRONTIERLlNE SUPPORTED
---- BY EL SAWAOOR
MARCH (1821) Il2"PARTS)AN --- - BY HONDURASNE SUPPORTED
MEASUREMENT OF ME COMMON
01- LANDS OF THE TOWN OF LANGUE (18211
MEASUREMENT OF THE ISLAND OF
CALICANTO 1861AND 1864
LANOS OF JUAN BAUTISTA DE FUENTES
1695 ISAWADOREAN DOCUMENT
Est*m La Ccon
INSTITUTOEOGRAFICO NACIONAL
"INGENIERO PABLO ARNOLDO GUZM~N"
MINISTERIO DE OBRAS P~BLICAS
REP~BLICA DE EL SALVADOR GOLF0 CK FONSECA
MAP 3.K disputed sector; while the Title Deed of Langue of
. . 1821 covers the area to the east of the former channel
1 ~- . - of the-~iver ' Goascoran whose mouth is opposite the
. - Island of -Conejo and thus overlaps .the area claimed
. .- by El Salvador between-this former mouth of the'River
Goascoran and the even older mouth of this river
opposite the Estuary of La Cutii; and the Title Deed
of the Isla de Calicanto of 1861 and 1864 covers an
area between these two mouths of the River Goascoran.
. . . .
.overlapping partially the lands of the township of
.Langue and partially (in the southern part) the
territory claimed by El Salvador. As can be observed.
. . ond du droas-not present any Title Deed capable of
being .mapped rational 1y which covers the area between
the.present mouth of the River Goascoran and its oldest
mouth known as Los Amates opposite the Estuary of
. . La cuta. . - CHAPTER IV
1. THE WIDE RANGE OF METHODS OF PROOF APPLICABLE IN
THIS LITIGATION
4.1. It is appropriate to re-emphasise before
the Chamber of the International Court of
Justice that the litigation which El Salvador and
Honduras have brought before the Chamber is of a.very
special nature in that its dimensions extend well
beyond questions of a purely juridical and historical
nature. It is for this reason that Article 26 of. the
General Peace Treaty of 1980. which is incorporated
into the Special Agreement, establishes that:
"Account shall equally be taken ,of other methods of
proof and arguments and reasons of a juridical,
historical or human nature or of any other kind which
may be adduced by the Parties and which are admissible
under International Law." (emphasis added)
This provision of the General Peace Treaty of 1980
therefore considered that arguments and reasons of
this nature necessarily had to be taken into account
in order to verify and ratify the exact scope of the.
litigation and thus prodide the Judges with a ,
sufficient understanding of the issues to permit an
appropriate and just decision to be handed down.
4.2. In the course of these proceedings. El
Salvador has provided conclusive proof that
it has territorial sovereignity ove; the disputed
sectors of the land frontier in that it has presented
to the Chamber in the Annexes to its Memorial andto this Counter Memorial titles superior to those
presented by Honduras.
"If a dispute arises as to the sovereignity over a
portion of territory. it is dustomary to examine which
of th6 States claimi~~gsovereignity possesses a title
. . .superior to that which the other State might
possibly bring forward against it"
(1)'
4.3. However, the scope of Article 26 of the
General Pe,aceTreaty of 1980 goes well beyond
this; it gives the same probative force and.
consequently the same probative value to arguments
and reasons of a juridical, historical or human nature
which the Parties may adduce in evidence before the
Chamber. This specific reference in the permitted
methods of proof to arguments and reasons of a iiuman
nature has an explanation that is self-evident if
account is taken of the fact that El Salvador is,
in comparison with Honduras. very densely populated
and that. consequently. any judicial decision which
affects the demarcation of the land frqntier or alters
the existing status auo of this frontier will have
an immediate and profound effect on the lives of the
thousands of citizens of El Salvador who live in the
disputed sectors.
4.4. At the present time. when the existence
and availability of human rights is a matter
of concern to the entire International Community both
in multilateral' international conferences and in
1. The Island of Palmas Case: Nations Unies. .
Recueil des Sentences Arbitrales: Vol. II.
PP: 838-839.bilateral international relations. the effect on the
individual human beings involved is taken more into
account in the consideration given to juridical
historical problems such as those affecting frontiers.
In this sense the General Peace Treaty of 1980. the
appropriate part of whose provisions provide the legal
basis for and lay down the law applicable to the future
decision of the Chamber, has assimilated both the
letter and the spirit of its provisions to the
fundamentally human magnitude of the matters in issue;
this enables the rights of the human inhabitants of
a State so small and so over-populated as El Salvador
to be duly taken into account, analysed and protected
i1 a permanent manner.
II. THE ARGUMENTS OF A HUMAN NATURE SUPPLEMENT THE
"EFFECTI VITBS"
4.5. When El Salvador sets out arguments and
reasons of a human nature in. order to
reinforce its written pleadings, it does so not only
taking into account that it has been exercising
sovereignity and effective jurisdiction over the lands
and the Settlements of these sectors which legitimately
belong to it and which it is defending. but also
placing emphasis on the 'fact that this jurisdictional
effectiveness and administrative control constitutes
an additional argument in support of the thousands
of human beings who have settled permanently in these
sectprs, who identify themselves as citizens of El
Salvador and who, for this reason, take on the persona1
and social characteristics of this status. Therefore.
in addition to the applic.ation of the principle of
uti DOssidetiS iuris. which is obviously the primary issue that has to be decided in this case. it is
necessary to add the consideration of the configuration
of the population of the two States, something which
undoubtedly constitutes an aspect of this dispute
which cannot possibly be overlooked.
III. NO ARGUMENTS OF A HUMAN NATURE CAN VALIDLY BE
ADDUCED 'BY HONDURAS
4.6. The process of reading the Memorial of
Honduras involves the consideration of a
repetitive historical exposition. which does not have
any interna1 coherence, and of a tiresome elaboration
of juridical arguments which introduce the reader
into a labyrinth which produces only confusion and
distress. In this discussion no room is found at any
point for one fundamental element: reality, which
is what shapes the course of history, establishes
juridical regimes, and affects human destinies. It
is above al1 this last aspect for which no room is
found in the Memorial of Honduras. The human beings
involved receive no consideration whatever in the
discussion of a matter which basically concerns human
beings. Consequently. the geographical. discussion
appears to deal with dead lands; the historical
discussion appears to be an unemotional and .unfocused
study. and the juridical discussion appears to be
atextbook exposition. No reference whatever is made
to the fact that what is in issue are inhabited
Settlements. where people live. work. eat and drink,
need medicines and education, and where by tradition'
and by custom they feel that they have their roots.
4.7. El Salvador emphasises these arguments and reasons of a huniannature, therefore. partly
because of the requirements of Article 26 of the
General Peace Treaty of 1980 but above al1 because
of the unavoidable demands of justice. In this respect
it is also necessary to recall that it is El Salvador
that has concerned itself for the development as a
whole of the frontier areas, facilitating the creation
of services for the population, opening up roads.
constructing bridges, encouraging commerce, and
developing an entire system of Schools, Medical
Centres, Military Posts. Tribunals of Justice,
Administrative Offices and other types of structure
which demonstrate a full and Permanent exercise of
sovereignity thereover.
IV: THE GENERAL PEACE TREATY SECURES HUMAN OBJECTIVES
4.8. Article 26 of the ~eneral Peace Treaty of
1980 was conceived in order to secure the
human objective of orderly international relations
between-El Salvador and Honduras and in order to secure
principles of justice based on the fact that respect
for orderly international relations ought to give
way when faced with the demands of humanity and of
peace. As de Visscher has stated (2):
"There is nothing which better illustrates the profound
effect of human values on the establishment of orderly
international relations that are ever closer than
what has in this respect been established in the course
of History between the rules of international law
2. Teorias y Realidades en el Derecho Inter-
-nacional Publico (Spanish version).and the exercise of State Sovereignity over its own
subjects."
(3)
-The territorial situation of a State constitutes
one of the bases of political and juridical order
.... definitively established .... by the Treaties
of Westphalia. .... A firm territorial configuration
gi,ves a State a perfectly determined scope for the
exercise of its sovereign attributes. ... . Such
stability is above al1 a factor of security, a feeling
experienced by the population living alongside 2
recognised frontiers and which for them has increased
to the extent that their links with the land on which
they are settled have been being consolidated in a
combination of ambitions and memories."
(4)
4.9. There is no doubt, therefore, that when
El Salvador relies on arguments and reasons
of a human nature in order to prove the extent of
the exercise of its sovereignity and of the relation
which it has with its subjects in al1 the territory
in dispute. it is because, as the Permanent Tribunal
of Arbitration stated in the North Atlantic ~isheries
Case. one of the essential hallmarks of sovereignity
is that it must be exercised within territorial limits
and that. in the absence of proof to the contrary,
the territory has the same boundaraes as the
sovereignity (5), this sovereignity is in al1 the
societies of the world vested in the people.
4.10. El Salvador realises and understands that
3. OD. cit.: p. 132 (retranslated).
4. OD. cit.: pp. 214-216 & 217 (retranslated).
5. North Atlantic Fisheries case: Publications
of the Carnegie Foundation: p. 164. as the Tribunal of .Arbitration stated in
the Island of Palmas Case (6):
"Territorial sovereignity cannot, limit itself to its
negative side. i.e. to excluding the activities of
other States; for it serves to divide between nations
the space upon which human activities are employed.
in order to assure them at al1 points the minimum
of protection of which international law is the
guardian.".
V. THE POPULATION AND DEVELOPMENT OF THE SECTORS
CLAIMED BY HONDURAS IS ENTIRELY sALVADORE~AN
4.11. ,The Annexes to the Memorial of El ~alvador
(7) contain the proof that the human groups
, seftled in the sectors which Honduras claims from
El Salvador are in fact citizens of El Salvador. Both
the Birth and Death Certificates filed in the Civil
Registries of the "Alcaldias" of Citala, San Ignacio.
Arcatao and Meanguera del Golfo and the rustic
immoveable properties in Torola. Perquin, Arambala.
Polords and Meanguera del Golfo duly inscribed as
private property or as subject to mortgages in the
Property .and Mortgage Registries of El Salvador prove
evidently that the persons who integrate the
Salvadorenan groups settled in the disputed sectors
and who live, in the cantons and villages contained
within the sectors shown in the maps in these Annexes
(7) have recognised and continue to recognise.as their
sole sovereign El Salvador, to whose jurisdiction
6,. -traies:Uvol.. II.ep.e839.es Sentences Arbi-
7. MeIIIoriaof El Salvador: Annexes: Chapter 7.and power they submit themselves to the exclusion
of that of any other State.
4.12. To El Salvador they have paid and continue
to pay the various State and Municipal Taxes
relating inter alia to purchases of immoveable
property. sales of chattels, and stamp duty. Because
of this, El Salvador has guaranteed. by means of the
protection of its Armed Forces and the Municipal Police
of each sector; the work of each community with a
view to furthering the development of each of these
communities.
4.13. In order to provide a better standard of
living to these human groups so intimately
linked to El Salvador. the Government of El Salvador
has made monetary loans to enable the families settled
in the dispiited sectors to pasture livestock and to
grow various cereal and vegetable crops; the Government
has constructed roads so that these crops can easily
be sold in the markets in the interior of the country
and has little by .little provided mains electricity
so as to permit the development of light engineering
and of factories (8)'
4.14. The people of El Salvador who live in the
disputed sectors have carried out al1 their
human activities therein and have settled on the land
and developed it as aresult of their own strength
and efforts; they recognise as sole sovereign El
8. Memorial of El Salvador: Annexes: Chapter
7: Maps appended in respect of each sector.~ilvador. which has guaranteed them these vital areas
and has provided them with al1 the facilities necessary
for them to be able to live in peace both with memories
and with ambitions.
4.15. . The human groups of citizens of El.Salvador
who live in these sectors claimed by Honduras
comprise thousands of families who have raised various
generations of descendants there. Honduras does not
have any important Settlements in the frontier region;
it has not developed any means of communication thereto
and the concentration of its population in the
Departments of Ocotepeque. Lempira. Intibuca and La
.Paz, which form the frontier with El Salvador to the
North where the disputed sectors are located, is.
according to the Census of 1974, less than ten
inhabitants per square kilometre.
4.16. The Memorial of El Salvador inc1uded
six maps in which are shown the cantons
and "caserios". (hamlets) in the six sectors of the
land frontier in dispute, that is to Say ,Tecpangüisir
Mountain, Las Pilas or Cayaguanca, ArCataO or Zazalapa,
Perquin, Sabanetas or Nahuaterique, Monteca or Dolores.
and the Estuary of the River Goascoran. It is in those
cantons and hamlets that the Salvadorefianhuman groups,
who recognise as their sovereign the State and
Government of El Salvador. have settled.
4.17. This Counter Memorial includes at the end
--- --
9. Memorial of El Salvador: end of Chapter 7. three maps of Honduras which demonstrate:
first. that in the Xarea stretching from the south
of Honduras, which is where the sectors in dispute
are situated, to well inside that country, only the
townships of Nueva Ocotepeque. La Esperanza, Intibuca
and Marcala have between two thousand and five thousand
inhabitants . secondly. that in the southern region
(10)'
of Honduras which has a common boundary with El
Salvador. namely the Departments of Ocotepeque.
Lempira. Intibuca and La Paz, the Hondureaan population
per square kilometre is extremely scanty and.
thirdly, that the routes of communication between
the south of Honduras and the rest of its territory
are extremely scarce.(12).
4.18. At this point in this Counter Memorial are
included three maps of El Salvador which.
establish: first. that the sectqrs situated at the
north of the country are densely populated both in
the urban and in the rural areas. the population of
the different Settlements ranging from five hundred
to six thousand $persans (each dot on the map indicates
five hundred inhabitants); secondly, that the
population density in the sectors claimed by Honduras
is from one hundred to two hundred persons per square
kilometre; and. thirdly, that in al1 the sectors
10. Map 15, taken from N. Pineda. Portillo:
Geografia de Honduras (2nd Edition (1984))
p. 163.
11. Map 16, taken from Pineda Portillo: EL
cit.: p. 152.
12. Map 25. taken from Pineda Portillo: claimed by Honduras the Government of El Salvador
has constructed a network of paved roads constructed
on levelled soi1 which provides communications between
the cantons and hamlets where the. Salvadorefian human
groups have settled, permitting them to take to the
markets in the interior of the country their livestock,
their handicrafts and their agricultural products
and at the same time facilitating their access to
the schools. health centres, hospitals and ocher public
services provided by the Government of El Salvador.
VI. THE-MILITARY JURISDICTION
4.19. The Salvadorefian population of the sectors
claimed by Honduras has been protected for
ma& years by the Armed Forces of El Salvador, who
have posted Commanders. Deputy Commanders, Corporals
and Soldiers to form iilitary patrols which, based
in a specific place, have extended their jurisdiction
to the other cantons and hamlets shown on the maps
already referred to which were included in the Memorial
of El Salvador; these maps cover each of the six
sectors of the land frontier in dispute. There are
appended to this Counter Memorial, in proof of the
above statements, Certificates executed by the Ministry
of Defence and Public Safety of El Salvador. setting
out the names, ranks and postings of the various
military personnel who have been give" jurisdiction
to protect the Salvadorellan population of the sectors
claimed by Honduras (13).
13. Counter Memorial of El Salvador: Annexes:
vol. IX.VII. THE FTHICAL RELEVANCE OF ARGUMENTS OF A HUMAN
NATURE
4.20. El Salvador reaffirms that in this litigation
reasons of justice are particularly relevant.
To uproot a population from its own national identity
would be to deprive it of the only definite reality
which it possesses. The historical and juridical
documentation presented by El Salvador is sufficiently
complete to prove its territorial rights; and if to
this is added the profound human content of the
position of El Salvador, the fundamental decision
which has to be made by the Judges becomes glaringly
self-evident, especially at this time in which human
beings are attaining new levels of importance within
the ambit of the law. In a case such as this, the
moral and social impact of the decision has an unusual
weight. Beyond mere effectiveness. as has already
been stated. is the effectiveness of the arguments
of a human nature. which enrich the effects of the
strictly juridical proofs and assume the magnitude
of an unanswerable argument in favour of human dignity.
A failure to give due importance to the arguments
of a human nature mutilates any understanding of the
basis of. the problem. For this reason. El Salvador
re-emphasises once again the arguments of a human
nature and intends to continue doing so until the
end. Scale i: 750,000 Fonseca Gulf
I I EL SALVADOR
DISTRIBUCION DE LA POBLACION
URBANA Y RURAL
1974*
CON BASE EN MUNICIPIOS HABITANTES
POBLACION RURAL 240 ,000 14O30'-
CADA PUNTO EPUIVALE
A 500 HABITANTES
-2. ..
S POBLACION URBANA
.. +4fEN BASEAL CENS0 DE 1971, CONFORME AL CRECIMIENTO NATURAL
. ....
... ..
..
.. 14°00'-
..... .....-.
. ' .-
\
...
....
: ... .&
..
30301-
.. ..
O
O
P . -
..
C ...
I F
1 13'10'-
C 0 GOLF0 DE
REPUBLICA DE EL SALVADOR
MlNlSTERlDE OBRAS PUBLICAS
INSTITUT0 GEOGRAFLCONACIONAL
"ING. PABLOARNOLDO GUZMAN"
LA DIRECCIGENEb$T T'CESOS PART II
CHAPTER V
THE LAW APPLICABLE TO THE DETERMINATION OF
THE JURIDICAL STATUS OF THE ISLANDS
1. The Dispute ConcernS the Attribution of Territory
rather than a Delimitation of Territory
5.1. The Memorial of Honduras coincides with
the position adopted by El Salvador in
accepting that. in relation to the determination of
the juridical status of the islands. il y va d'un
contentieux d'attribution en souverainete et non de
- delimitation" Further, on the following page
(1)'
(2)' the Memorial of Honduras reiterates that "La
mission confiee à la Cour. quant a ces Ples. est une
mission d'attribution en souverainete" (original
emphasis). Finally (3), the Memorial of Honduras
recognises expressly that "A la difference des conflits
d'acquisition ou d'attribution de souverainete. les
conflits de délimitation de deux souverainetés pre-
existantes dans lesquels il s'agit d'interpr'eter un
titre en vue de tracer 'une,ligne frontière precise.
ne soulevent pas les memes difficultes". Nevertheless.
in spite of this 'lastcomment. the Memorial of Honduras
does not arrive at the logical corollary of this
distinction between disputes as to the attribution
1. Memorial of Honhuras: p. 4.
2. Ibid.: p. 5.
3. Ibid.: p. 156.of sovereignity and disputes as to the delimitation
of territory.
5.2. The teachings of Publi.cists of Public
International Law have not only drawn this
distinction between disputes as to the attribution
of territory and disputes as to the delimitation.of
territory or frontier disputes but have also drawn
from this distinction certain consequential conclusions
as to the Principles of Law applicable. Paul de
Lapradelle, in his classic work on the subject of
Frontiers. wrote: (4) .
"L'arbitrage de limites possède. en outre. une nature
propre, qui le distingue. dans un domaine connexe.
de l'arbitrage territorial. Les problèmes territoriaux
sont essentiellement des problemes d'attribution.
Une masse territoriale se trouve revendiquee par deux
Etats, sur la base de titres constituifs d'acquisition.
L'arbitre, après examen des .titres invoques, procède
A l'attribution totale ou à la distribution de la
masse litigieuse.
"L'arbitrage de limites. au contraire, n'a pas pour
objet l'attribution d'une masse, mais l'identification
d'une ligne."
5.3. Professor R.Y. Jennings (as he then was)
distinguished with complete precision the
different juridical principles applicable to, on the
one hand. a dispute as to delimitation and. on the
o.ther hand, a dispute as to the attribution of
territory. In the former case, it is necessary to
apply the norms of Public International Law which
govern the interpretation of documents (such as, for
La Frontière pp. 140-141 example, Forma1 Title Deeds to Commons) while. in
the latter case. it is necessary to apply the rules
of Public International Law which govern the acquisiton
of territory. This commentator States: (5)
"Thus, there are certain features that are peculiar
t O boundary disputes and which accordingly
differentiate it from the kind of question where the
essence of the matter is not the determination of
a boundary line. but a question.of title to an already
more or less determined defined parce1 of territory.
In particular, since al1 boundary lines are man-made,
it follows that the essence of a boundary dispute
will be the interpretation of some delimiting
instrument. .... consequently the principal element
of dispute is not at al1 one concerning modes of
acquisition or loss of territory. but the principles
governing interpretation." (original emphasis)
5.4. Charles de Visscher indicated: (6)
"On s'accorde pour admettre une distinction
fondamentale entre les questions que posent directement
le titre a l'attribution en souverainete d'une surface
ou masse territoriale donnee et ce1les que souleve
la delimitation des surfaces lorsque,,dans les regions
de confins, le problème se ramène au trace d'une
frontière. C'est en ce sens que l'on parle de conflits
i territoriaux d'attribution et de conflits territoriaux
de delimitation."
And this commentator added (6) that disputes as to .
the attribution of territory:
"prend tout son relief a ou'l'on est en presence d'une
zone geographiquement independante du domaine reconnu
des Etats en litige. encore qu'elle soit voisine de
celui-ci."
General Course of International Law: ~ecuei'l
des Cours Vol. 121 pp. 428-429.
6. Problemes de confins en Droit International
Public pp. 25-26.5.5. Professor Reuter. in his oral pleading to
the Court in the Tem~le Case was the first
to indicate the consequences that follow from this
distinction: (7)
"Dans le cas particulier du conflit de delimitation.
tel que nous l'avons defini, c'est-&-dire, d'un conflit
à propos d'une operation de delimitation, et d'un
conflit qui ne porte que sur une parcelle
geographiquement 'non autonome. le titre. d'une façon
génerale a plus de poids que les faits d'exercice
effectif de la souverainete. C'est du moins la leçon
qu'il nous emble que l'on peut tirer d'une comparaison
que l'on ferait entre l'arr0t rendu par la Cour dans
l'affaire des Minquiers et des Echréous. d'une Part.
et l'arret rendu par la Cour dans l'affaire des
Parcelles Frontières."
5.6. Equally. Professor Blondel in accepting
this dLstinction.observed that:
(8)
"Cette distinction est importante parce que les modes
de solution sont très differents; pour les differends
territoriaux proprement dits (pour l'appartenance
d'un territoire) c'este essentiellement l'effectivite
de l'occupation que est l'élément préponderant. sinon
1'element determinant; pour les conf 1its de 1imites
ce sont les titres chaque fois qu'il y en a. en
particulier les accords de delimitation et les cartes."
5.7. Finally. Professor Bardonnet indicates
(9)
that in the analysis proposed by Professor
Reuter :
7. Tem~le Case: Plaidoiries: Vol. II, p. 545.
8. La Frontière (a publication of ~a Societe
Francaise pour le Droit International)
p. 171.
9. es Frontiers terrestres: Recueil des Cours
Vol. 153 pp. 49-50."La notion de conflit de délimitation repose. en effet,
selon lui, sur un double critère. Le premier est
formal, en 'ce sens qu'un tel conflit nait des suites
d'une procédure de delimitation. Le second est
matériel, en ce sens qu'il s'agit d'un conflit "qui
porte sur des parcelles qui ne constituent pas une
entité géographiquement autonome"."
This commentator adds that it is:
wposible de déQager une tendance génerale
"Dans les conflits d'attribution. les considérations
d'effectivité dans l'exercice des fonctions étatiqlies
tiennent une place particuliere.
"Dari les conf1it.s de délimitation. en revanche. ce
sont les titres juridiques, c'est-à-dire en pratique
les traités, qui l'emportent nécessairement."
5.8. Notwithstanding these various statements of
principle and notwithstanding in particular
the various Precedents of Courts and Tribunals of
Arbitration cited by El Salvador in its Nemorial
(10)'
Honduras insists that Article 26 of the General Peace
Treaty of 1980. which refers exclusively to the
delimitation of the land frontier, is also applicable
to the determination of the jui-idical status of the
islands (11)' Honduras has apparently forgotten that
Article 5 of the Special Agreement which forms the
basis of the jurisdiction of the Court gives priority'
over the provisions of the General Peace Treaty of
1980 to the provisions of Article 38 of the Statute
of tlie International Court of Justice. BY virtue of
10. Hemorial of El Salvador: Paragraphs 10.3.-
-10.10..
11. Memorial of Honduras: pp. 521 & 572. this provision. the general rules and principles of
Public International Law prevail in relation to the
attribution of terr-itory and these principles ,and
rules are to be applied as interpreted and es.tablished
in the decisions of the International Court of Justice
and of prestigious Tribunals of Arbitration such as
tllatwhich decided thgIsland of Palmas Case.
5.9. The actual text of Article 26 of the General
Peace Treaty of 1980 establishes quite
categorically that this provision applies exclusively
to the delimitation of the land frontier. Article
26 is entitled "The delimitation of the frontier (which
isl undefined" ("De la .deliniitacion de la frontera
no definida" in the original Spanish text) and
- commences "For the delimitation of the frontier line
in the disputed sectors ... ." ("Para la delimitacibn
de la linea fronter-iza en las zonas en controversia
....' in the original Spanish text). There is no
question of any delimitation of any frontier line
in respect of the islands since what is in issue is
the attribution of these islands to one or other of
the two States.
5.10. In view of the considerations set out above,
El Salvador maintains and reiterates the
conclusion reached in its Memorial which was as
follows:
"It mav be concluded from the preceding exposition
that, according to established jurisprudence. the
determination of the status of the disputed islands
in the Golfo de Fonseca involves a decision as to
which of the two States has exercised in respect of
these islands a continuous and peaceful display of
ter.ritoria1' sovereignity and has performed State functions and exercised Sfate authority, in particular
by inearisof acts of jurisdiction. of adniinistratioii.
and of lrgislation." (12)
II. The Ecclesiastical Araument considered from a
Juridical F'ointi of View
5.11. The Memorial of Honduras, start ing froiii
the. erroneous premise that Article 26 of
the General Peace Treaty of 1980 is applicable to
.
the determination of the status of the islands, reaches
the following conclusion: A
(13)
"La règle énoncée à l'article 25 [sic 1 du Traité
Général de Paix doit ainsi être in erprétée et
appliquée en relation avec la règle de droit public
espagnol selon l'Ordonnance Royale IVa de 1571. D'après
coloniales espagnoles, ce qu'on appelle la Gouvernementives
temporal devait coincider avec la juridiction
spirituelle.
"Cela implique. à partir de cette date, la nécessité
pour l'espace territorial des diverses circonscriptions
d'avoir comme 1imites ce1les accordées aux
Goberiiaci6nes. Alcaldias ou Intendances. unifiées
avec celles attribuées aux
d'integration défini et
caractère obligatoire."
5.12. The Ecclesiastical Argument thus inakes its
appearance based not only un the argument
set out above but also on constitutional provisions
12. Memorial of El Salvador: Paragraph 10.11..
13. Mernorial of Honduras: pp. 521-522; see also
ou. cit.: p. 23.
14. This is presumably an error for "26".aclopted unilaterally by Hoiiclur-a s15) which, because
of tl-ler- unilatei-alnature, pi-oveabsolutel y nothing.
It will be established later on that a consideration
of this ecclesiastical argument in the Iight of the
facts produces a result contrarv to the inteïests
of Honduras. However. it is first necessary to analyse
the basis of. this argument from the point of view
of Public International Law and of the relevant
precedents
5.13. In the Artitration between Guatemala and
Honduras, it was Guatemala who tïied to
invoke the argumeiit that the boundaries of the
ecclesiastical and the temporal jurisdictions weïe
identical, an argument which Honduras, despite its
own constitutional pr-ovisi oris. opposed. The Tribuna1
of Arbitration presided by Hughes rejecteri this
argument and upheld the view asserted by Honduras.
The Tribunal made the following statement
"1n.fixing the line of uti possidetis of 1821,
GuatenIaIa contends that controlling effect sliould
be ascribed to the evidence from ecclesiastical sources
in the view that, in the absence of a royal order
of specific delimitation, Che liint is of ecclesiastical
jurisdiction are- determinative. In support of this
view. the. Provisions of Law VII. Title II. Book II
of the Reco~ilacioII of the Indies are invoked, as
follows:
"That the territory of the Indies may be
divided in such .manner that the temporal may
correspond with the spiritual. x * * We command
15. Memorial of Honduras: PP. 524-525 & 574
16. Arbitration between Guatemala arid Honduras:
Judyement pp. 48-49. the members of our Council of the Indies that
they sha11 always take care to divide and
distribute al1 the territory thereof, discovered
and to be discovered, for temporal purposes into
viceroyalties. provinces of ~oyal Audiencias
and chanceries, and provinces of officials of
the Royal Treasury, adelantamientos, governancies,
alcaldias mayores. correaimientos. ordiriary
alcaldias and of the brotheïhood, councils of
Spaniards and of Indians; and for spiritual
purposes into archbishoprics and suffragan
bishopi-ics and abbeys, parishes and tithing
districts, provinces of the religious orders
and institutions, always taking care that
divisions for temporal matters shall conform
and correspond with divisions for spii-itual
matters, iiisofar as may be possible;
archbislioprics arid provinces of the religious
orders with the districts of the Audiencias;
bishoprics with governancies and alcaldias
mayores: and parishes and curacies with
coi-reaimientosand ordinary alcaldias."
"But it will be noted that absolute correspondence
of the limits of temporal and spiritual jurisdiction
was not required. The coiiformitv was to be "insofar
limitsy bofposscivil" Tjurisdictionsh King chisd fcolonial
possessions as he saw fit."
Subsequently the Tribunal once again rejected the
argument produced by Guatemala in relation to
ecclesiastical boundaries, stating
(17):
"Appareritlythe assertion of Guatemala in this respect
is based upon her primary contention that the evidence
as to ecclesiastical administration must be deemed
controlling, a contention which has already been
considered. " ,
5.14. This prestigious judgement is valuable riot
only because it constitutes a precedent; it
is appropriate to ask whether it is legitimate for
17. Ibid. pp. 77-78,.Honduras to adopt this contradictory posture; having
obtained for itself the Valley of Copan by successfully
criticising the argument of Guatemala that the
boundaries of the ecclesiastical and the temporal
jurisdictions were identical. Honduras is now trying
to invoke in its favour against El Salvador the very
argument which both it and the Tribunal of Arbitration
rejected. As an English Judge has stated very cogently:
"You cannot blow hot and cold at the same time".
5.'5. The Arbitration between Guatemala and
Honduras is not the only occasion ,upon
which a Tribunal of Arbitration has rejected the
Ecclesiastical Argument. In the Arbitration between
Honduras and Nicaragua. the Council of State of Spain,
in the Report which provided the basis for the
Arbitration AWard given by the King of Spain and
subsequently declared to be valid by the International
Court of Justice, made the following statement:
(18)
"on ne peut étayer un argument tiré d'une juridiction
qui no fut ni délimitee, ni exercée, ni corroborée
bar des prueves de plus d'autorité. Aucun. donc. de
ces textes .... ne prouve que l'éveque du diocése
ait exercé sa juridiction sur le territoire disputé
et on ne peut davantage en tirer d'argument digne
d'ëtre pris en consideration en faveur du droit
invoque ."
5.16. And in this same case Professor Rolin made
the ~following comments on the Ecclesiastical
Argument.. having first cited the "Real Cedula" (Royal
18. Pleadings in the Case concernina the Arbi-
tration Award of' the King of main vol. I
p. 421."Que dit cette loi? Non pas que la division des
territoires découverts va s'effectuer de telle maniére
que la division civile soit en conformité. mais le
roi ordonne aux membres du Conseil des Indes de:
"veille à ce que la partage et la division de
tout le territoire decouvert et à, découvrir se
fasse de maniére que le pouvoir civil soit divisé
en vice-royautés, provinces d'audiencias, etc.,
le pouvoir ecclésiastique en archevéches, evêches,
subfragants, etc.. veillant à ce que la division
civile soit en conformitG!. dans la mesure du
posible, avec la division ecclsiastique."
"Donc. Messieurs. il faudra une division officielle;
elle va autarit que possible essayer d'aboutir a une
conformit.é entre les circonscriptio~is écclesiastiques
et les autres; mais il n'est absolument pas question
que, automatiquement, les divisions civiles se
calquent .. se modifient suivant les décisions de
messeigneurs les évêques. Même dans un pays aussi
catholique que l'Espagne, j'ai tout de même
1 inipression que 1'on aurait considéré que c'était
là un etrange empiétement de l'pglise sur l'Etat que
de permettre aux évêques de modifier. à leur guise.
les circonscriptions civiles simplement par les
modifications qu'ils apporteraient aux circonscriptions'
ecclésiastiques."
III. The Ecclesiastical Argument considered in the
li~ht of the Facts and the Precedents
5.17. The Memorial of Honduras affirms that between
1677 and 1692 the Bishopric of Comayagua
acquired in a definitive manner its full geographical
extension by the incorporation to its. spiritual
jurisdiction of the Curacy of Choluteca and the
Guardania of Macaome "lesquel 1es avaient sous 1eui
19. Ibid. Vol. II p. 371.juridiction effective des îles du Golfe de..Fonseca*'
(20)' This is not correct since this was not the case
either before or after the dates indicated in the
Memorial of Honduras. This is shown bv the following
documentary evidence, which may be found in the Annexes
to this Counter Memorial.
5.18. In the list produced in "1665 (before the
first date indicated in the Memorial of
Honduras) of the Religious Institutions of San
Francisco. there appears in the section relatiiig to
the Province of Guatemala the Priorv of San Salvador,
the Convent of Aniapala and dependerit on the latter
the Islands of Conchagua, Teca and Miangola. (21)
5.19. ~n the '~emorial and Register produced in
1670 (also before the first date indicated
in the Memorial of Honduras) of the Religious
Institutions administered bv the Bishopric of
Guatemala, exactlv the same entries are found. (22)
5.20. In a document produced in 1733 (after the
second date indicated in the Memorial of
Honduras), a series of writs executed in order to
remedy the maladministrat ion of certain ciil-aciesand
Religious Institutions of the Bishopric of Honduras.
20. Memorial of Honduras: p. 536.
21. Counter Memorial of El Salvador: Annexes:
vol. VII, p. 1.
22. Counter Memorial of El Salvador: Annexes:
Vol. VII, p. 24.there appears the Curacy of Choluteca and the
dependencies of its jurisdiction. None of the Islands
of the Gulf of Fonseca is included therein.
(23)
5.21. In a document produced in 1765 (also after
the second date indicated in the Memorial
of Honduras), the Chaplain Joseph Valle makes a
complete list of the Curacies of the "Alcaldia Mayor"
of Tegucigalpa. providing a full description of
Choluteca and Nacaome without anv mention being made
of any Curacies or other Religious Dependencies on
the Islands of the Gulf of Fonseca. (24)
5.22. In a document produced in 1791 Cals0 after
the second date indicated in the Memorial
of Honduras and very close to the crucial date of
the Independence of Central America). when the
incorporation of the "~lcaidia Mayorw of Teguctgalpa
to the Intendencv and Government of Comayagua was
approved, there is decisive evidence which constitutes
absolute proof .that the ~ishopric of Comayagua was
not exercising spiritual jurisdiction.over the Islands
of the Gulf of Fonseca. The document in question.
which was produced in the Pleadings in the Case
concernina the Arbitration Award of the King of Spain,
is a "List .of Curacies and Par-ishes which comprise
the Bishopric of Comayagua with the names of al1 the
towns and valleys which depend on each Curacy.
23. .Counter Memorial of El Salvador: Annexes:
Vol. VII, p. 26. .
24. Memorial of Honduras: Annexes: p. 13according to the General Administration of the 'Diocese
of Comayagua. .sent on 20 October 1891 to the King
of Spain by Brother Fernando de Cadiiianos, Bishop
of Comayagua" (emphasis added) In this List
(25)'
there duly appear both the Parish of Choluteca (26)
and the ~arikh of Nacaome without there being
(27)
in either case any mention whatever of any town or
Valley or curacy in any of the Islands of the Gulf
of Fonseca.
5.23. This document was decisive for the Tribunal
of Arbitration that decided the litigation
between Guatemala and Honduras. The judgement of this
Tribunal stated (28):
"it is highly significantthat on 0ctober 20. 1791.
after the above-mentioned royal rescript of July 24.
1791, the Bishop of Comayagua, in an extensive report
to the King concerning the districts within his
bishopric, gives a description of thirty-five curacies
into which the bishopric was divided and makes no
25. Pleadings in the Case concernina the Arbi-
tration Award of the Kina of S~ain Vol. 1
pp. 452-457. The document also appears in
the Memorial of Honduras: Annexes: Vol 1.
p. 17 and is cited by the Hemorial of
Honduras: pp. 392-393. Further in the
Memorial of Honduras: p. 30. it is stated
that this Bishop of Honduras carried out
one of the most complete censi thar had
ever been made during the colonial period.
26. Pleadings in the Case concernina the Arbi-
.tration Award of the King of S~a.iiiVol. 1
p. 454. '
27. . Ibid. p. 457.
28. Arbitration between Guatemala and Honduras:
Judgement p. 19.mention of Golfo Dulce or Santo Tomas."
And in the same judgement, it is indicated that (29):
"As shown by the royal rescript of 1791. the territory
of the Intendencia of Honduras was intended .to
correspond to that of the Bishopric of Honduras. but
there was no precise delimitation of the extent of
that bishopric. "
Professor Rolin in his comments to the Court on this
judgement stated that the Tribunal of Arbitration
(30):
"considere que. dans ces conditions. il faut .limiter
les effets de 1791 au territoire qui est determine
par la liste de 35 cures, etablie par 1'evéque du
Honduras."
5.24. Al1 the documents described in the last
five paragraphs demonstrate in a conclusive
manner that the transfer of the Curacy of Choluteca
and the ~uardania of Nacaome to the lurisdiction of
the' Bishopric of Comayagua had no effect whatever
relative to the ecclesiastical and civil jurisdiction
over the Islands of the Gulf of Fonseca'which continued.
to be subject to the jurisdiction of San Miguel in
the Province of San Salvador. These documents, and
30. Pleadings in the Case concernina the Arbi-
tration Award of the King of Suain Vol..II
P. 478. The Judgement of the Tribunal of
Arbitration between Guatemala and Honduras
also emphasised that certain localities
were not mentioned in the Report to the
King presented in 1804 by Ramon de Anguiano.
who had been Governor-Intendent of Honduras
since 1790, "a report on the state of affgirs
in his Intendency with a description of
the di,strict of Comayagua and of the sub-
delegations into which the Intendency was
divided". See infra Chapter VI in particular the last document described, an officia1
document produced in 1791 emanating from the Bishop
of Comayagua, cannot be successfully contradicted
by the documents adduced by Honduras.
5.25. under no circumstances can such an officia1
document be contradicted by an extract from
a private History of the Parish of Choluteca written
by a certain Fray Manuel Bendana This extract
(31)'
can in no sense be considered as a document issued
by the Spanish Civil or. Ecclesiastical authorities
and so in any event does not satisfy the requirements
laid down by Article 26 of the General Peace Treaty
of 1980 if it is indeed the case. as is contended
by Honduras, that this provision of the Treaty is
applicable to the determination of the status of the
islands. What does emerge from this History, on the
other hand, is that already in 1816 the Island of
Meanguera was inhabited by inaririersfrom San Carlos.
in the Province of San Miguel, who earned their living
by engaging to sea transport to and from Nicaragua.
5.26. A further document of ecclesiastical origin
adduced by Honduras is a Report of
the Bishop of Guatemala which (coiicerns the Parish
of Conchayua. This document, which was produced in
1770. is in favour of the arguments adduced by El
Salvador. Contrary to what is argued by Honduras,
it is not affirmed in this document that there is
31. Mernorialof Honduras: Annexes: p. 2296.
'32. Memorial of Honduras: p. 556.one single island dependent on Conchagua but rather
that dependent on that ecclesiastical jurisdiction
"il y a quelques petites iles et sur l'une d'elles.
qui comporte pas mal de terres. il Y a un elevage
de betail appartenant a cette paroisse" In other
(33) '
words. what is affirmed is not that only one island
belongs to the Parish within the jurisdiction of San
Salvador but rather than what belongs to that Parish
is the "@levage de betail" on the said island.
5.27. Honduras similarly adduces the List of
' Curacies produced in 1804 Once again
(34)'
this document is favourable to. El Salvador since it
is declared that the islands numbered 1 and 2 on the
map appended to the List belong to the Parish of
Conchagua; that no island whatever belongs to the
inhabitants of the Bishopric of Comayagua; and that
a third island belongs to the Bishopric of Le6n in
Nicaragua. The Memorial of Honduras argues that this
island belonging to the Bishopric of Le6n is Meanguera.
If this is the case. this document can hardly serve
to support the claim of Honduras to this same Island
of Meanguera. The only ' explanation given by the
Memorial of Honduras for this statement is that
"L'autorite ecclesiastique se trompe en assignant
1' le de Meanguera a 1'Eveche de Leon" (35)' Such
a comment cannot be taken seriously. The only truly
significant aspect of this document is that, according
to its terms, no island whatever was assiqned to the
33. Memorial of Honduras: Annexes: p. 2319.
34. Memorial of Honduras: Annexes: p. 2323.
35. Memorial of Honduras: p. 557.Bishopric of Comayagua, a statement which confirms
that Honduras did not enjoy jurisdiction over any
of the islands in the Gulf of Fonseca in 1804.
5.28. Thus it can be seen that the Ecclesiastical
Argument. produced by Honduras breaks down
coinpletely, not onlv from a juridical point of view
but also wheii considered in the light of the facts
and the precedents.
IV. The "Real Cédula" (Roval Decree) issued in 1745
in favour of Juan de Vera
5.29. A third juridical argument invoked by the
Memorial of .Hondurasis based on the "Real
Cedula" (Royal Decree) executed in 1745 in favour
of Juan de Vera ~he argument which it is
(36)'
attempted to extract from this "Real Cédula" has
already been answered in the Menlorial of El Salvador
To the transcription in the Memorial. of' ~l
(37) '
Salvador of the passage from the judgement in the
Arbitration between Guatemala and Honduras which
rejected this argument it seems appropriate to add
this immediately subsequent section of the judgement
36. Hemorial of Honduras: pp. 25-26 & 555.
37. Memorial of El Salvador: Paragraph 12.4.
Arbitration between Guatemala and Honduras:
Judgement p. 17.
39. See also Pleadings in the Case concerning
the Arbitration Award of the Kin9 of Spain
Vol. 1 pp. 382 & 384. "This is indicated by the terms of the royal
instructions to Vera to the effect that it was not
the royal wi11 to make any change in the political
and civil government of the Province of Honduras and
that Vera. in executing his special military authority.
should be careful to abstain from mixing "in the
political and civil government of the Alcapdia of
Tegucigalpa nor of any other governancy that may reach
to the said Coast which may have its Governor or
Alcalde Mayor. because that is to remain absolutely
as it has been under the Alcalde Mayor or Governor.""
Exactly the same limitation emerges from the detailed
instructions given by the King to Colonel Juan de
Vera (40)'
5.30. In the same way, in the Arbitration between
Honduras and Nicaraaua, the Council of State
of Spain, in the Report which provided the basis for
the Arbitration Award given by the King of Spain,
emphasised the limited scope of this "Real Cédula"
of 1745. In this Report it is stated that it was only
for military purposes and by reason of the war wtiich
at that time existed that the area subject to the
command of colonel Vera was enlarged and that this
did not produce the slightest enlargement of the
boundaries of the Colonial Provinces. The Council
of State of Spain stated categorically that: (41)
"On peut donc considérer,comme certain que les Brevets
Royaux de 1745 ne modifièrent point les limites des
provinces de Nicaragua ni de Honduras."
5.31. It is appropriate to add. as was indeed
40. O~.cit. Vol. 1 pp. 385-391.
41. O~.cit. Vol. 1 p. 917. sffirmed by the Commission for the
Examination of the ~itles presided by santamaria de
Paredes (this Commission produced .he Opinion on which
the Report of the Council of State of Spain was based),
that if the "Real Cédula" of 1745' had had the effect
claimed by Honduras, this effect would have been
entirely transitory since as from 1747 a new "Real
Cédula" restored to the new Governor General of
Guatemala, Marshall Cajigal de la Vega, the powers
which had been temporarily assigned to Vera; indeed
Vera was made a subordinate of and subject to the
orders of the new Governor General AS the Council
(42) '
of State of Spain indicated: (43)
"les pouvoirs du colonel de Vera furent exceptionnels
et que. en 1748 dejà, on ne jugeait pas opportun de
les conferer à un successeur au G~u~ernement de
Honduras, mais que au contraire, on avertissait
expressément que les choses devaient devenir ce
qu'elles etaient A 1'époque antérieure à cette
accumulation de commandements et attributions à une
même personne."
42. O~.cit. Vol. 1 p. 682. See also PP. 431-432
43. O~.cit. Vol. 1 p. 417- See also P. 682 for
the concurring Report of the Commission
for the Examination of the Titles which
served as the basis for the Opinion of the
Council of State and the subsequent Award
of the King of Spain. CHAPTER VI
THE DETERMINATION OF
THE JURIDICAL STATUS OF THE ISLANDS
1. The Objectives of the Litiaation in rSsDect of
the Islands
6.1. The Memorial of Honduras maintains that,
(1)
notwithstanding the generality of Article
2. Paragraph II. of the Special Agreement which forms
the basis of the jurisdiction of the Court, in which
the Parties requested the Chamber that "it determine
the juridical status of the islands". the'only matter
which has to be decided in this litigation in relation
to the islands is the sovereignity over the Islands
of Meanguera and Meanguerita. This argument constitutes
yet another unacceptable distortion by Honduras of
the provisions of Paragraph II of Article 2 of the
Special Agreement. In just the same way as Honduras
wishes to introduce into this Paragraph the word
"delimitation". which the Parties in fact carefully
and deliberately chose to omit from this Paragraph.
it also wishes to replace the generic reference to
the islands as a whole by a specific reference to
the Islands of Meanguera and Meanguerita. This latter
aspect of the Special Agreement could hardly be
clearer: it requests the Chamber that "it determine
the juridical status of the islands". not that "it
determine the juridical status of the Islands of
1. Memorial of Honduras: p. 485.Meanguera and Meanguerita".
6.2. What the Parties have asked the Chamber
to do is to determine, in general, the
juridical status of the islands and it is only when
this determination has been made that it will emerge
which of the 'islands are actually in dispute between
the Parties.
6.3. If, as Honduras argues. the juridical status
of. the islands is governed by the principle
of "uti possidetis iuris" and by the provisions of
Article 26 of the General Peace Treaty of 1980. that
is to Say that the juridical status of the islands
is to be determined entirely by the Spanish Colonial
Title Deeds executed prior.to the date of independence.
and in particular by those Deeds closest in time to
that date, then the application of this criterion
to the, facts leads to the .conclusion that al1 the
islands of the Gulf of Fonseca belona to El Salvador,
for the simple reason that El Salvador has the better
titles thereto. and consequently, al1 the islands
of the ~ulf of Fonseca are in dispute between the
Parties.
6.4. If. on the other hand, as El Salvador argues.
the juridical status of the islands is
governed by the Principles of pub1ic International
Law established by the decisions of the International
Court of Justice. that is to say by the display of
State authority exerci.sedby the independent Sovereign
States as from 1821, then in the light of this second
criterion it is for Honduras to Prove that it has
exercised jurisdictfon and sovereignity over someof the islands of the Gulf of Fonseca; this is because
El Salvador-. besides the historical Title Deeds which
prove that al1 the islands of the Gulf of Fonseca
are its legitimate property, has demonstrated a defined
and indisputable display of State authority exercised
during more than one and a half centuries over
Meanguera and Meanguerita and since, in the view of
Honduras, these are the only two islands in dispute,
then the application of this second criterion would
also lead to the conclusion that al1 the islands of
the Gulf of Fonseca belong to El Salvador.
6.5. With a view to achieving its wish to limit
the subject matter of the dispute, Honduras
invokes (2) the records of the Joint Boundary
Commission. This is rion pertinent since it was fully
understood by both Parties during the negotiations
carried out in the Joint Boundary Commission and,
what is more, understood by virtue of a direct request
from Honduras, that the conciliatory proposais made
during these negotiations could not be invoked
subsequently in any judicial proceedings ~n
(3)'
particular. the proposal put up for negotiation by
El Salvador (and subsequently withdrawn in the light
of the intransigence of Honduras manifested thereto)
was only able to be formulated by virtue of a very
considerable sacrifice on the altar of finding a joint
solution to the dispute as a whole and with the
2. Memorial .ofHonduras: p. 485.
3. Counter Memorial of El Salvador: Annexes:
vol. VII. P. 54. objective.of staving off any necessity for an onerous
judicial process.
l 6.6. In any event. the affirmation made by
Honduras to the effect that the history
of the negotiations demonstrates that the dispute
as to the islands concerns Onl~ the Islands of
Meanguera and Meanguerita does not rest on a solid
base. It is sufficient merely to read through the
2
Forma1 Minutes of the various Meetings held during
the negotiations leading up to the General Peace Treaty
of 1980. during the five years in which the Joint
Boundary Commission was working. and during the
negotiations leading up to the Special Agreement to
establish emphatically that at no point were the
Islands of Meanguera and Meanguerita referred to as
the exclusive subject matter of the dispute as to
/ the islands. The same conclusion is reached by reading
other documents connected with these ne~otiations
(4)' Before the Special Agreement had been drawn up,
El Salvador had in January 1985 stated extremely
clearly to Honduras that "toutes les iles se trouvent
4. See General Peace Treaty of 1980: Article
18. Paragraph 4; the Protest of Honduras
of 24 January 1984 (set out in the Memorial
of Honduras: Annexes: p. 2263) the final
paragraph of which does not contain any
specific reference to any individual islands
but rather contains a general reference to
"la determination de la situation juridique
insular". en litigie" a statement which ought to have ..
alerted Honduras to the need to Propose a change in
the draft of the Special Agreement if it really wished
to restrict the subject matter of the litigation.
6.7. It is now proposed to examine in two separate
sections of this Chapter the juridical status
of the islands in the light of the two different
juridical criteria which have been claimed to be
applicable; first. in the light of the juridical
criterion invoked by Honduras. which would decide
the dispute on the sole basis of the Spanish Colonial
Title Deeds executed prior to the date of independence
in 1821 and. subsequently. in the light of the
jutidical criterion invoked by El Salvador. which
would decide the dispute on the basis of the pacific
and uninterrupted display of State sovereignity from
the date of independence in 1821 up to the pi-esent
day. It will be seen that the position of El Salvador
is correct in the light of both criteria. Considering
first the Spanish Colonial Title Deeds, these will
be divided into two sub-sections: (A> the Title Deeds
.and Other DOCUmentS of the Sixteenth and Seventeenth
Centuries and (B) the Title Deeds and Other' ~ocuménts
of the Eighteenth and ~ineteenth Centuries.
5. The Note of ~i Salvador of 24 January 1985
(set out , in the Memorial of Honduras:
Annexes:' p. 2270) where it is also affirmed
that the Island of El Tigre belongs to El
Salvador; it must be emphasised that this
Note was sent before the 'signature of the
Special Agreement. II. The Colonial Spanish Title- Deeds relating to the
dispute over the Islands
(A) The Title Deeds and Other Documents of the
Sixteenth and Seventeenth Centuries
6.8. The Memorial of Honduras affirms emphatically
(6) that "Le Honduras 'fut une entité
coloniale aui s'étendait depuis l'océan Atlantique
(mer des Caraïbes) iusau'à 1'Ocean Paci.f iaue (alors
appelé mer du Sud). Depuis le debut, étaient comprises
dans son territoire les îles adjacentes à ses cotes
sur les deux océans" (emphasis added). The Memorial
subsequently adds (,): "Le Honduras se developpa donc
comme une entite coloniale s'etendant de l'Atlantique
au- Pacifique sans la moindre contestation" (emphasis
added ).
6.9.. The most direct answer 'to these affirmations
has already been provided by the Government
of Honduras itself in another international legal
proceeding. its boundary dispute with Nicaragua; this
fact illustrates once again the desire of Honduras
"to blow hot and cold at the same time"
6.10. In the arguments presented by the Government
of Honduras to the Mediator in the dispute
with Nicaragua relating to the validity of the
Arbitration Award of the King of- Spain, the
representative of Honduras expressed himself as
6: Mernorialof Honduras: p. 523.
7. Memorial of Honduras: p. 531. "The Province of Honduras was constituted when Diego
L6pez de Salcedo was nominated its Governor in a
under the name of Hibueras and Cabo de Honduras therising.
area from the edge of the Atlantic as far as Trujillo.
It did not have a coast on the Pacific." (8)
And the representative of Honduras before the Mediator
in its boundary dispute with Guatemala cited and
pi-esented as Annex IV -a Spanish Colonial Document
entitled "Demarcation and Division of the Indies".
in which it is stated:
"The coast of this Province, in the Northern Sea;
because it does not reach the Southe.rnSea". (9)
These documents completely deprive of authority the
affirmation in the Memorial of Honduras to the
(10)
effect that "Les lles en litige furent decouvertes
por Gil Gonzalez Davila et firent partie de la
Gobernaci6n territoriale qui lui fut accordee par
Cedula Real de 1524". A territory which did not reach
the sea could hardly have had islands.
6.11. These officia1 affirmations of the Government
of Honduras in earlier legal proceedings,
so contradictory of the affirmation which that
Government is now making, are based on two "~èales
Cedulas" executed by the King of Spain in 1563 and
1564. both of which are indeed mentioned in the
8. Memorial of El -Salvador: -Annexes to Chapter
12. Annex 2.A..
9. Mernorial-of El Salvador :--Annexes to Chapter
12. ~nnex-Z.B.;
10: Memorial of Honduras: p. 566. Memorial of Honduras In the "Real Cedula" of
1563, the King of Spain. speaking in the then customary
Royal plural, stated:
''We declare and we provide thatthe said Government
of Guatemala (should have1 for boundaries and for
district from the Bay of-Fonseca inclusive".
(12)
The "Real Cedula" of 1564 is still more precise,
providing that:
"The said Government of Guatimala (sic) should have
for boundaries and for district from the Bay of Fonseca
inclusive as far. as the Province of Honduras
exclusive".
(13)
6.12. The representative of the Government of
Honduras before the Mediator, this time
in the boundary .dispute with Guatemala. made these
comments on the "Real Cedula" of 1564:
."1 do not wish to desist from examining the boundaries
of Honduras on the Pacific side in relation to the
provisions of the already cited Royal "Cedula" of
1564. although this is not the subject of the present
question.
"It is.not strange that the King has left the Golfo
de Fonseca included in the Province of Guatemala.
since at that time and for a 1on~ time thereafter,
Guatemala extended so far as to connect with the
Province of Nicaragua, comDrising the territory which
todav forms the Re~ublic of El Salvador and a -~~ ~
of the territory of Honduras on the Golfo. This wa;
shown by the maps until the Eighteenth Century and
.even by some lafer maps erroneously. Many ancient
11. Memorial of Honduras: p. 692
12. Memorial of El Salvador: Annexes to Chapter
12. Annex 3.
13. Memorial of El Salvador: Annexes to Chapter
12. Annex 4.documents confirm this. among others the document
with the title of "Demarcation and Division of the
Indies" which 1 have cited and which constitutes Annex
IV." (14)
6.13. Both "Reales Cëdulas" coincide in the really
fundamental point. which is the fact that
the Bay of Fonseca. and in consequence its islands,
were included in their totality within the boundaries
as~igned to the territory of the Government of
Guatemala and were excluded in their totality from
the boundaries assigned to the territory of the
Government of Honduras. It was the Government of
Guatemala which had jurisdiction and,exercised control
over the waters and over al1 the -islands of the Gulf
of Fonseca, a jurisdiction and control which was
exercised from San ~iguel .
6.14. These express recognitions on the part of
representatives of Honduras that, on the
basis of these "Reales Cëdulas", Honduras did not
have a Coast on the Gulf of Fonseca, caused the
representative of Guatemala to make the following
declaration to the Mediator:
"The confession of the High Counterparty in this
respect relieves Guatemala from having to proceed
with the proof rendered to the effect that its rights
extend as far as there, and Honduras remains obliged
to prove, not by means of suppositions nor by means
of the opinions of commentators but by means of Royal
"Cëdulas" of the Spanish Monarch subsequent to the
Eighteenth Century. that al1 that territory and the
Gulf of Fonseca was adjudicated to Honduras by taking
it away 'from Guatemala. As long as these Royal
14. Memorial of El Salvador: Annexes to Chapter
12, Annex 6. remain immoveable".resented. the rights of Guatemala
(15)
El Salvador is entitled to say exactly the same in
, relation to the Gulf of Fonseca and its islands. What
is more, in no ;document emanating from the Spanish
Monarch which has been presented by Honduras is it
stated that the Spanish Crown modified the delimitation
in respect of the Gulf of Fonseca established by the
"Reales Cédulas" of 1563 and 1564. Honduras argues
that the islands of the Gulf passed to the jurisdiction
of the Government of ond dur atssome date which it
does not specify in spite of the fact that it does
not present any documentation whatsoever in support
of this claim and in spite of the fact that the
documentation which would have been necessary for
such a transfer of islands from one Government to
another would have been a "Real Cédula", as was the
case when the islands of the Guanajos in the Atlantic
were transferred from the Government of Santo Domingo
to the Government of Honduras The fact is that
(16)'
no such "Real Cédula" transferring the islands of
the Gulf of Fonseca to Honduras actually exists and,
consequently, the claim of Honduras' to these islands
is unjustified.
6.15. The Memorial of Honduras presents a
(17)
partial extract of what it describes as
I
15. Memorial of EI ~alvador: Annexes to Chapter
12. Annex 7.
16. Counter Memorial of El Salvador: Annexes:
. vol. VIII, p. 1.
17. Memorial of Honduras: p. 533a "Real Cédula" of 1580 (18) by which Juan Cisneros
de Reynoso was appointed "Alcalde Mayor" of Mines
of the'Province of Honciuras'. of the town of San Miguel
and its jurisdiction. and of "la ville de Choluteca,
avec les villaqes de sa juridiction" (original
emphasis). Honduras erroneously classifies as a "Real
Cedula" what is no more'than a "Real Provisibn", 'which
in any event does not contradict or supersede' the
"Reales Cédulas" of 1563 and 1564 which were executed
by the Spanish Crown 'in order ,to determine the
boundaries of the territories. The "Real Provisi6,nW
of 1580 was issued by the President--Governor of
Guatemala. Diego Garcia de Valverde. who by virtue
of his powers as Governor, had the right exclusively
to govern Guatemala and al1 the area under the
jurisdiction of its "Real Audiencia" and as a specific
governmental matter was authorised to create public
offices; by virtue of this power. he created the.
"Alcaldia" of Mines. appointing an "Alcalde Mayor"
with the jurisd'iction corresponding to his office
over matters concerning mines in the whole of the
area of the "Real Audiencia". In no sense does this
imply any aggregation of t.erritory to the Province
of Honduras, as is claimed by the Memorial of Honduras.
Honduras ought to present this "Real Provisi6n" of
1580 in its entiret'y in order to avoid'inter~r~tations
thereof that are not in accordance with its teht.
6.16. Numerous documents prove that this provision
executed by the President-Governor of
18. Memorial of Honduras: Annexes: pp. 2281-2282.Guatemala in favour of Juan Cisneros de Reynoso, far
from adding territory to Honduras, as is claimed.
instead removed from the Governor of Honduras bis
jurisdiction over matters concerning mines, since
both-the mines of Honduras and the mines of San Miguel
and Choluteca remained under the administrative control
of the President-Governor of Guatemala through this
"Alcalde Mayor" of Mines.
6.17. In the "Real Cédula" executed by the King
on 18 November 1581, one year after Cisneros
de Reynoso had been appointed as "Alcalde Mayor" of
Mines. the King asked the "Real Audiencia" to send
him a list of the settlements that existed within
its area. both Spanish and Indian. the form in which
*
justice was administered. in which *there were
established "Corregidores" and "Alcaldes Mayor" and
by whom they had been established. and of al1 the
other public offices which had been established in
its area (19)' Complying with this "Real Cedula",
the Governor of Honduras made a list of al1 the
settlements under his jurisdiction in the year 1582
as well as of the public offices that had been
established. In making reference to the "Alcalde Mayor"
of Mines. he mentioned the mines in Honduras that
had been discov'eredand populated and complained that:
"The. present and past Governors of Honduras put a
Lieutenant-Governor who administered justice without
any salary and they continued this custom until the
lawyer Valverde came as President of the "Real
Audiencia" of Guatemala which will have been more
19. Counter Memorial of El Salvador: Annexes:
vol. v. p. 7.andlecustom,e yestablishede.aner"Alcalde Mavor"steof the
said mines with a salary paid from the Royal Exchequer
as ,appears in a document appended to this report in
which it is placed on record who the person so
established is and the salary that he sis paid and
the jurisdiction that he has and the officials which
he establishes, which information it is requested
that Your Majesty sends to be seen by your Royal
Council of the Indies." (20)
In this passage the Governor. Alonso de Contreras
Guevara, clearly stated that he had nominated the ,
Lieutenants for the ine end that the President. of 'l
the "Real Audiencia" had deprived him of this power
and that the President himself established this office
and assigned its salary and jurisdiction by virtue
of which the Mines remained outside the control of
the Governor of Honduras and. as a result of this.
the latter requested or appealed that this matter
be considered in the Council of the Indies.
Subsequently the Governor made an exhaustive and
detailed list of al1 the settlements that existed
in the jurisdiction of Honduras and the settlements
of Indians and Spaniards that there were in each one
of them. mentioning among others Truxillo. which is
the modern Puerto de Mar and has the islands of the
Guanajos, and also Puerto Cavallos in the Northern
Sea (Atlantic Ocean) (21). The extensive list does
not include the Gulf of Fonseca and its islands in
the southern Sea (Pacific ocean) nor Choluteca.
although the ports and islands in the Northern Sea
20. Counter Memorial of El Salvador: Annexes:
vol. v, p. 12.
21. Ibid.: Vol. V. p. 16. (Atlantic Ocean) which belonged to the jurisdiction
of Honduras are indeed included.
6.18. In a subsequent record of the jurisdiction
of Honduras made by Juan de Guerra Ayala
in 1608, he made the following complaint:
"And because my Governor was a miner. they deprived
him of the jurisdiction over the. Mines and put an
"A4calde Mayor" over them (22).
In the same way, when Juan de Guerra Ayala made
+eference to the Province of Honduras, at no point
did he list either the Gulf of Fonseca or its islands.
6.19. The preceding discussion explains why, in
the proceedings relating to the abandonment
, of Meanguera. the Indians directed themselves to the
President of the "Real Audiencia" of Guatemala since
it was he who had given the Commission to the "Alcalde
Mayor" of Mines and the Lieutenant of the captain
General to carry out what was necessary (23). This
Special Commission is easy to understand since the
"Alcalde Mayor" of Mines was under the authority of
the ~resident-~overnor of Guatemala. who in his turn
had jurisdiction over San Miguel and its district.
San Miguel~has always had jurisdiction over the islands
of the Gulf of Fonseca; although Choluteca was for
many years subject to the jurisdiction of San Miguel.
the islands of the Gulf of Fonseca were never subject
to the jurisdiction of Choluteca. Proof of this is
22. Counter Memorial of El Salvador: Annexes:
Vol. V, p. 27. ,
23. Memorial of Honduras: p. 547. the "Real Cedula" of 28 February 1590, by which Pedro
Giron de Alvarado was appointed "Alcalde Mayor" of
San Salvador, San Miguel and the township of Choluteca.
their. jurisdictions and their districts neither
(24)'
do the many documents subsequent to this date which
refer to Choluteca attribute its jurisdiction to
\
Honduras; even in 1674. ~holutec'a remained subject
to the jurisdiction of San Miguel. as is shown in
a document relating to the taxes of the Province of
San Miguel and of Choluteca (25).
6.20. In the Commission of 1601 in favour of
Sebastian de Alcega. "~lcalde Principalw
of Mines in Honduras, he was assigned jurisdiction
sepakately over the Province of Honduras 'and over
the "ville de Choluteca de la ~rovince du Suaternala"
(26) (emphasis added). His successors in this office
were always also given the appointment of "Alcalde
Mayor" of Mines of Honduras and of Choluteca in the
Province of Guatemala". Among others can be mentioned
the appointment of Juan de Espinoza Pedruja. who on
22 January 1618 was given the title of "Alcalde Mayor"
of the Mines and their Registries in the Province
of Honduras-and of Acapoco and the township of
Choluteca of the Province of Guatemala; the same title
was conferred on ~6seph de Orosco on 29 November 1634
and on Juan de Alvarado on 12 June 1652 (27). This
24. Counter Memorial of El Salvador: Annexes:
Vol. VII, p. 65.
25. Ibid.: Vol. VII, P. 73.
26. Memorial of Honduras: Annexes: P. 2283.
27. Counter Memoyial- of El Salvador: Annexes:
Vol. VII. .pp. ,107et sea..demonstrates that Choluteca formed part of Guatemala.
for which reason the documents executed at this time
referr'ing to Choluteca did not attribute jurisdiction
to Honduras but to the Province of San Salvador,
through Guatemala. This was the case. for example,
with the document of 1590 annexed to the Memorial
of Honduras which refers to the islands in the
(28)
Gulf of Fonseca.
6.21. It is this mention of Honduras, constituting
a simple generic reference in the forma1
title of the "Alcaldes Mayores" of Mines, which
disappears completely in the Eighteenth Century. when
this "Alcaldia Mayor" was transformed into the
"Alcaldia Mayor" of Mines of Tegucigalpa, which
continued under the administrative control of
Guatemala, something which is proved. by the
appointments of the "Alcaldes Mayores"; for example,
on 14 July 1714 Manuel de Amezquita was appointed
"Alcalde Mayor" of Mines of Tegucigalpa in the said
Province of Guatemala; the same title was conferred
on Francisco Barrutia in 1744. on Ger6nimo de la Vega
Lacayo de Briones in 1765. on Alfonso de Domezain
in 1772. and on others (29)' However. the islands
of the Gulf of Fonseca were never part of the territory
of the "Alcaldia Mayor" of Tegucigalpa but were always
subject to the jurisdiction of the "Alcalde Mayor"
of San Salvador and San Miguel.
28. Memorial of Honduras: Annexes: pp. 2297-2299.
29. Counter Memorial of El Salvador: Annexes:
Vol. VI1, pp. 145 et sea. .6.22. The annexion in 1791 of the "Alcaldia Mayor"
of Tegucigalpa to the Intendency of Comavagua
constitutes complete proof that it did not form
(30)
part of the jurisdiction of Honduras. Honduras
subsequently exercised administrative jurisdiction
over the "Alcaldia Mayor" of Tegucigalpa for twenty'
five years, from 1791 to 1816, when it was ordered
by Royal "Cedula" that the "Alcaldia Mayor" of
Tegucigalpa should once again be.separated from the
jurisdiction of Comayagua and should pass once again
to the jurisdiction of the President-Governor of
Guatemala, thus becoming once again a province. quite
independent of Honduras and so remaining until the
independence of Central America in 1821 That
is to Say that the person who effectively exercised'
control in the Province of Tegucigalpa was the
President-Governor of the Province of Guatemala and
of al1 the area of its "Real Audiencia". What is most
relevant is that, in al1 the descriptions of the
"Alcaldia Mayor" of Tegucigalpa set out by Honduras
in its' Memorial or by El Salvador in this Counter
Memorial, the islands of the GulF of Fonseca never
appear, as Honduras uselessly attenlptsto prove, either
in the jurisdiction of Choluteca nor in the
jurisdiction of Nacaome.
6.23. A document executed in 1625 sets out the
concession and valuation of the taxes paid
by the Indian population of the Island of Amapala
30. Memorial of Honduras: p. 556.
31. Counter Memorial of El Salvador: Annexes:
Vol. V, p. 48. in the jurisdiction of San Miguel
(32).
6.24. In 1667 there took place an incident to
which reference is made in a document annexed
to the Memorial of Honduras The document in
(33)'
question is a letter addressed to the "Juez Reformador
de la Cultura de Maiz" (a functionary charged with
the collection of taxes arising out of the cultivation
of maize), in which it was stated that his appointment
in this capacity in the Province of San Miguel "should
not be understood as covering the townships of the
Islands of Conchagua, Teca, Miangola and the other
islands situated in that sea and that he would not
have jurisdiction over these islands". The Memorial
of Honduras attempts to extract from this document
the conclusion that, by virtue of this order from
the local representatives of the Spanish Crown, San
Miguel did not have jurisdiction over the islands.
6.25. However, this Order was issued as the result
of a petition presented by the Indian Mayors
of the Islands of Teca. Conchagua. and Meanguera in
which they pleaded that this tax collector should
not visit their townships "taking into account that
the townships are so poor and so sma11 that there
are scarcely enough Indians to .carry out the
obligations and charges to which they are subject"
The "Real Audiencia" of Guatemala, the supreme
(34).
32. Counter Mernorial.of El Salvador: Annexes:
vol. VIII, p. 3.
33. Memorial of m indur asn:xes: pp. 2300-2301.
34. Counter Memorial of El Salvador: Annexes:
vol. VIII, p. 15.. civil authority of that Colonial Kingdom. agreed to
this request. for the 1-easonsset out by the Indians. ,
and the manner found.of executing t-his decision was
to exclude jurisdiction over the islands from the
powers conferred 8n such tax collectors. This incident.
in fact demonstrates that the general rule was that
jui-isdiction over the islands was exercised from San
Miguel but. in this case. because of the poverty of
the Indians and their express petition to this effect.
this particular functionary was prohibited from
exercising in the islands his specific jurisdiction
to collect taxes. Indeed in their petition the Indians
of the Islands of Teca, Conchagua and Meanguera stated
that they were subject "to the jurisdiction of the
"Alcaldia Mayor" of. the Cïty of San Salvador and of
San Miguel". This abstention from exercising this
specific jurisdiction over the islands in no sense
signified that this jurisdiction had'been transferred
from the Province of San Salvador to the Province
of Honduras; it was simply decided not to collect
these taxes.
6.26. It was only in 1672 that the ecclesiastical
jurisdiction of the Province of Honduras
first reached the edge of the sea when the Parish
of Choluteca was separated from the Bishopric of
Guatemala and transferred to the Bishopric of Honduras.
However, as has already been seen in Chapter V (35)'
this transfer of the ecclesiastical jurisdiction did
not si~nify an automatic transfer or adjustment of
35. Paragraphs 5.11.-5.16.. pp. 147-151.the civil jurisdiction so as to .bring the two
jurisdictions into 1ine. This is shown by the document
annexed to the Meinorial of Honduras (36) which
establishes that it was the authorities of the
"Alcaldia Mayor" of San Salvador who were until 1688
- 16 years after the transfer of the Parish -
responsible for the collection of taxes in the various
districts of the township of Choluteca.
6.27. Further a document annexed to this Counter
Memo'rial (37) shows that in 1677 Juan de
Miranda wrote to the King of Spain about the collection
of taxes in the islands and referi-ed to the payment
of the sums owed by the townships of La Teca and
Miangola (or Meanguera) "in the Province of San
Miguel". This jurisdiction by San Miguel over tax
collection in the islands of Teca and Miangola in
spite of the transfer of the ecclesiastical
jurisdiction over Choluteca shows that Choluteca was
nat exercising jurisdiction over the islands;
consequently. the mention of Choluteca in the document
executed in 1682 which is annexed to the Memorial
of Honduras .(38) did not signify the exclusion of
the jurisdiction of San Miguel or of San Salvador.
6.28. The Memorial of Honduras attempts to show
that it was the "Alcaldia" of Tegucigalpa
which. through Choluteca. had jurisdiction over the
36. Nemorial of m on dura As:exes: p. 2284
37. Counter Memorial of El Salvador: Annexes:
vol. VIII, p. 49.
38. Memorial of Honduras: Annexes: pp. 2303-2304. islands of the Gulf of Fonseca. It cites a document
executed in i687 in which the "Alcalde Mayor" de
Tegucigalpa certified the inabi 1ity of the inhabitants
of the Island of Miangola, who had not constituted
themselves into any townships but had instead
dispersed, to pay taxes because of an invasion of
pirates and buccaneers. It is natural that this
certification of poverty should have been executed
bv the "Alcalde Mayor" of the area where the displaced
inhabitants of Meanguera had sought refuge just as
it is logical that this same authority should have
been the one which authorized and or~anized their
instalation on "terra firma" and took the consequential
measures arising out of this population movement. .
On the other hand, the Indians directed al1 the forma1
documents relating to the abandonment of Meanguera
to the President of the "Real Audiencia" of Guatemala
and it was the latter who charQed the authorities
closest to the area where the Indians had taken refuge
with the task of taking the measures leading to their
re-settlement.
6.29. The same reason. that is to say the
territorial character of the exercise of
jurisdiction, esplains the fact that in i678 the
"Alcalde Mayor" of Tegucigalpa arrested and condemned
an Indian who had kidnapped a minor within his
jurisdiction and had then escaped to one of the islands
In the Minauiers and Ecrehos Case. the
(39) '
International Court of Justice considered that a
39. Mernorialof Honduras: Annexes: p. 2302. similar measure, the transfer. of a fugitive by the
police of one island to another place to be tried
"cannot be considered as an exercise of jurisdiction
1 in respect of the island"
(40) '
6.30. The Memorial of Honduras affirms (41) that
not only the Parish of Choluteca but also
the Guardania of Nacaome was by Order of the Spanish
Crown assigned to the Bishopric of Comayagua in 1676
However, the document presented by Honduras
(42)'
did nothing more than order the preparation of a Report
and an Opinion on. this possible addition to the
jurisdiction. The final decision emerges from a
document annexed to the&lemorial of El Salvador (43)
in which it was stated that "there is no reason to
maMe this addition and the said Guardania ought to
be retained in the Bishopric of Guatemala as it has
always been". Consequently the whole of the argument
elaborated by the Memorial of Honduras as to the rble
of the Guardania of Nacaome and its jurisdiction over
the Islands of the Gulf of Fonseca rebounds against
Honduras and becomes instead a proof of the arguments
of El Salvador - this includes the passage from the
document written by Fray Manuel Bendana, which has
already been discussed in Chapter V (44).
40. I.C.J. Reports 1953 p. 64.
41. Memorial of Honduras: p. 536.
42. Memorial of Honduras: Annexes: p. 2294
43. Memorial of El Salvador: Annexes to Chapter
12. Annex 10.
44. Paragraph 5.25.. p. 156, commenting on
Memorial of Honduras: Annexes: p. 2296.6.31. Further confirmation of the fact that the
Guardania of Nacaome was not assigned to
the Bishopric of Comayagua in 1676 is provided by
the "Real Cedula" executed on 25 January 1713 which
States: "the ministry of the District of Nacaome,
in the Province of San Miguel, having become vacant,
Fray José Cordero is designated as Minister of the
Faith" (45) (emphasis added).
6.32. The arguments of Honduras in relation to
Choluteca and Nacaome are irrelevant since
they never had jurisdict,ion over the islands. As has
already been shown. Honduras did mot even have the
administrative control of the "Alcaldia Mayor" of
Mines of Tegucigalpa during the colonial period up
to 1821 but neither is this of any great significance
since it was the Province of San Miguel. within the
jurisdiction of San Salvador, which always had the
administrative control of the islands. This is
completely proved by a document of 1676 in which
(46)'
the authorities of San Miguel complained that. in
spite of the fact that they had exercised jurisdiction
over the Indians of Amapala during time immemorial.
the "Alcalde Mayor" of San Salvador was also attempting
to exercise this jurisdiction and to this effect had
written a letter (which they duly transcribed) to
the Indians of Amapala, Teca and Conchagua. Both these
documents fully confirm , the , jurisdiction of San
Salvador and San Miguel over the'islands.
45. Counter Memorial of El Salvador: Annexes:
Vol. VIII, p. 103.
46. Ibid.: Vol. VIII, P. 57.
..(B) The Title Deeds and Other Documents of the
Eighteenth and Nineteenth Centuries
6.33. The Memorial of Honduras presents a
(47)
Petition made in i706 by the inhabitants
of the township of La Teca. on one of the Islands
of the Gulf of Fonseca. who had also heen the victiins
of an invasion by pirates. The petition, which sought
an exonrration from the payment of taxes and permission
for the sale of land. was directed to the "Alcalde
Principal" of San Miguel and declaredthat the township
was "in the jurisdiction of. the town of San Miguel".
The "Alcalde" of anMiguel duly processed this request
before the "Real Audiencia" of Guatemala, declaring
that the whole of the southern Coast was subject to
his jurisdiction. A report was also sought from Fray
Manuel Romero, the priest assigned to the'jurisdiction
of San Miguel in general and to the townships of
Amapala in particular; he asked that the request niade
by the Indians of La Teca be granted. and this was
duly done in San Miguel on 9 April 1706 (48j. This
document is a clear affirmation of the jurisdiction
of San.Miguel. and consequeiitlyof San Salvador, over'
the islands. This is the first of the documents
executed in the Eighteenth Century, during which this
examination of the Title Deeds and Other Documents
approaches the critical and decisive date of the
independence of Central America in 1821.
47. Memorial of Honduras: Annexes: p. 2317
48. Counter Memorial of El Salvador: Annexes:
Vol. VIII, p. 113.6.34. In 1711 a collection of taxes was carried
. out intthe Island of Miangola (Meanguera)
and the document in which this is recorded clearly
demonstrates that this island was within the
jurisdiction of San Miguel (49)'
6.35. In a document executed in 11o the
"Alcalde Mayor" of San Salvador produced
a description of his Province and, when enumerating
the townships of San Miguel, mentioned the township
of Santiago Conchagua which "has seventy four Indians.
who look after the canoes used for crossing the arm
of the sea which divides this Province from the
Province of Nicaragua"; he also mentioned the township
of Nuestra Sefiorade las Nieves de Amapala. It emerges
clearly from this description of the Province of San
Salvador that Conchagua. within the jurisdiction of
San Miguel. had a common boundary with the Province
of Nicaragua and was a sea port in which a watch was
maintained. It is obvious that it was from this point
that administrative control was exercised over the
islands of the Gulf of Fonseca.
6.36. In 1750 a new count and numeration was made
of the Indians of the township of Nuestra
Serlora de las Nieves de Amapala and the document in
which this is recorded clearly States that Amapala
was situated within the jurisdiction of San Miguel
in the Province of San Salvador
(51)'
49. Counter Memorial of El Salvador: Annexes:
Vol. VIII, p. 219.
50. Ibid.: Vol. VIII. p. 155.
51. Ibid.: Vol. VITI, p. 219.6.37. In the Case concernina the Arbitration Award
of the Kina of Spain (52> there can be found
a description of the Province of Honduras made by
the "Alcalde Mayor" of Tegucigalpa. Baltasar Ortiz
de' Letona in L&3 (53). This was a Report drawn up
in response to a "Real Cédula" executed on 19 July
1741 in which the King of Spain commanded that. with
the object of obtaining the most detailed information
possible as to the true state of his Provinces, the
persons charged with their GoVernment should produce
the necessary Reports with the precision and detail
which might be required for the King to obtain perfect
knowledge of the population. number and importance
of the townships of each jurisdiction, their
inhabitants and their nature, the state and development
of the Missions, the conversions and the new Missions
created. ,
6.38. The "Alcalde Mayor" of Tegucigalpa informed
the King that his territory had within its
jurisdiction the districts of Tegucigalpa ....
Choluteca and Nacaome. When speaking of Choluteca,
he mentioned that "Ce bourg est traversé par une
riviPre qui se jette dans la Mer du Sud six lieues
plus loin prés d'une île qu'on appelle Garay" (54)'
This was the only island mentioned in the Report.
His references to Nacaome equally did not make the
slightest mention of any islands in the Southern Sea
52. Pleadings: Vol. 1, p. 309 et seq..
53. See also Memorial of Honduras: Annexes:
PP. 1-6.
54. Pleadings: Vol. 1, p. 373.nor of townships or inhabitants on those islands which
were dependent on his jurisdiction. Nevertheless,
the "Alcalde Mayor" concluded "On a.énumeré 'en detai 1
dans cette description les distrits ou cures qui
forment. cette Mairie Principal, les vallées et les
villages que l'on trouve dans le territoire de chacun
d'eux (55>.
6.39. He added that his jurisdiction comprised
a total of twenty-eight valleys. four towns,
three townships of negroes. the town of Choluteca
and twenty-three townships of Indians. When referring
to the agricultural production of the area of his
jurisdiction, he stated that it was very scarce "parce
qu'ils n'ont pas oil vendre ces produits parce au'il
n'y a aucun port de mer oil l'on puisse les amener.
Ainsi ces produits ne sont nullement estimés de ces
gens qui, s'il y avait des ports, seraient portes
dans leur propre interet à les utiliser" (emphases
added) (56). The "Alcalde Mayor" concluded by stating
that in his Report "se trouvent examinés tous les
points au sujet desquels on m'a ordonné d'informer.
sauf celui qui a trait a l'état et au développement
des missions''
(57)'
6.40. This Repor't coincides with what Professor
Rolin expressed in his arguments to the
Court in the Case concernina the Arbitration Award
.
55. Pleadings: Vol. 1. p. 375.
56. Ibid.: p. 377. , .
57. Ibid.: P. 378.of the Kinn of S~ain Professor Rolin stated,
(58)'
referring to the "~lcaldia" of Tegucigalpa,
"la côte est etrangère à cet AlcaldiaW.
6.41. The Memorial of El Salvador presents . (59)
a Report drawn up in 1752 by the President
of the "Real Audiencia" of Guatemala in which the
conclusions drawn from the previous document discussed
are confirrned.This Report States: ,
"being distant, as the "Alcaldia Mayor" of Tegucigalpa
is thirty leagues distant from the Government of
Comayagua referred to. and the said "Alcaldia Mayor"
not having a sea port throunh which it could suffer
an enemy invasion" (ernphasisadded).
This Report, emanating from the highest authority
of the Capitania-General of Guatemala, indicates that
the "Alcaldia Mayor" of Tegucigalpa lacked jurisdiction
over the islands since there are natural ports in
the islands. such as the Port of Amapala in the Island
of El Tigre. It would have been very difficult to
.exercise jurisdiction over islands from a Coast which
did not have any ports.
6.42. The document of ecclesiastical origin
emanating from the Bishop of Guatemala in
i770 which appears as an Annex to the Mernorial of
Honduras has ilready been discussed in Chapter
(60)
" (61). According' to this document, the Parish of
58. Pleadings: Vol: II, p. 373.
59. Memorial of El Salvador: ~nnexes to Chapter
12. Annex 8.
60. Memorial of Honduras: Annexes: p. 674
61. Paragraph 5.26..Conchagua contains some islands in the Southern Sea.
which is crossed in order to go to Nicaragua. These
islands are the islands which are in dispute, although
on only.one of them are cattle grazed:
6.43. The Memorial of El Salvador presents a
document of the highest importance. very
close in date to the critlcal date of 1821, which
sweeps away in a precise and categorical form al1
the doubts and divergences which could possibly exist
as to whether San Miguel or Tegucigalpa exercised
jurisdiction over the islands in the Gulf of Fonseca.
The document in.question is the proceediiig commenced
by Lorenzo de Irala before the "Juez de Tierras" of
San Miguel, which was decided in m' on 12 July of
that year (62).'
6.44. The petitioner appeared before the "Juez
de Tierras" of San Miguel and claimed that,
off the coast where the township and port of Conchagua
are located and opposite the lands and territories
of Nacaome, there was an island between the island
known as the Colina del Tigre and the Island of El
Zacate or the Island of El Ganado. which island was
desolate and uninhabited. and he asked that the Judge
should proceed to carry out a measurement of this
island. declaring that he was disposed to pay the
value thereof to the Royal Treasury. This island is
the Island of ~xposi'ci6n.very close to what is today
the coast of Honduras. The "Juez de Tierras" declared
62. Counter Memorial of El Salvador: Annexes:
Vol. VIII, p. 172."that he is not certain if the island claimed belongs
to this jurisdiction of San Miguel or the jurisdiction
of Tegucigalpa, and with the object of not gi'ving
occasion for proceedings as to jurisdiction and of
not committing an error", he decreedthat "the claimant
party address himself to the "Juez Principal de
Tierras"" in Guatemala in order that the latter should
decide the matter (63).
6.45. The Memorial of Honduras carries only as
far as this point its reference. to this
matter, leaving the reader in suspense as to what
the "Juez Principal de Tierrras" of the "Real
Audiencia" of Guatemala actually decided. The Memorial
of El Salvador. on the other hand, completes the
picture by including as an Annex the document
(64)
which comprises the presentation of the matter by
Lorenzo de Irala before the "Juez Principal de Tierras"
of the "Real AudienciaW- in Guatemala, petitioning
that the latter Magistrate order the measurement sought
from the "Juez de Tierras" Of San Miguel. The "Juez
Principal de Tierras" of the Real Audiencia in 1766
resolved the question of jurisdiction that had been
raised in favour of San Miguel. ordering:
"that there be sent a despatch of assignment to the
Sub-dylegate Judge of the.jurisdiction of San Miguel.
in order that he should put into practice al1 the
procedures which it is appropriate to carry out in
Cyown- Lands in respect of which no person will cause
63. Memorial of Honduras: Annexes: p. 2318.
64. Memorial of El Salvador: Annexes to Chapter
11, AnneX 1. him any impediment or any embarrassment" (65).
.
6.46. The Memorial of El Salvador (66) emphasises
the significance of this judicial pronounce-
ment since the Island in question is.'situated between
the Island of Zacate and the Island of El Tigre. The
decision of the "Real Audiencia" signifies that the
jurisdiction of San Miguel extended as far as the
Island of Exposition. This conclusion is confirmed
by the appointments of military officers to exerclse
delegated authority in Nacaome. Both appointments,
in i769 and 1779 respectively. state that this
deiegated authority extended only asfar as the Island
of .Zacate, the only mention of any island made in
either decree (67)'
6.47. The Memorial of Honduras (68) alleges that
the islands of the Gulf of Fonseca were
not included in the tour of the Province of San ~iguel
carried out by the functionary Sanchez de Le6n in
1779. However it emerges from the Report of this tour
that the functionary visited on foot or on horseback
various different parts of the Province. It is
therefore comprehensible that he did not attempt to
reach. with the means of transport at his disposal,
the islands of the Gulf of Fonseca, an omission which
65. Memorial of El Salvador: Annexes to Chapter
11. Annex 1.
66. Memorial of El salvador: Paragraph 11.2..
67. Memorial of El Salvador: Annexes to Chapter
11. Annexes 2 & 3.
68. Memorial of Honduras: p. 560. in any event is totally lacking in significance from
the jurisdictional point of view.
6.48. The Memorial of Honduras claims that
(69)
by means of a "Real Cedula" executed on
24 July 1791 was decided "1 'incorporation "à
1'Intendence de Comayagua de 1'Alcaldia Mayor de
Tegucigalpa et de tout le territoire de son Evéche""
(original, emphasis). By emphasising the latter part
of this quotation the Memorial of Honduras is trying
to suggest that the incorporation of al1 the territory
of this Bishopric brought with it al1 the islands
of the Gulf of Fonseca and therefore transferred al1
these islands to the jurisdiction of Honduras.
6.49. However. as has already been shown in Chapter
" (70)' this is simply not the case. The
Report of the Bishop Cadinailos of 20 October 1791
(71) listed al1 the Parishes and Curacies which
comprised the ~ishopric of Comayagua and in this list
both the Parish of Choluteca and the Parish of Nacaome
appear without any mention whatever of any town or
valley or curacy in any of the islands of the Gulf
of Fonseca. Neither does the description of the
"Alcaldia Mayor" de Tegucigalpa made by Valle in 1763
and mentioned in the Memorial of Honduras (72) inc1ude
any township or valley on the islands of the Gulf
of Fonseca (73)'
69. Memorial of Honduras: p. 556.
70. Paragraph 5.22. ,p. 153.
71. Memorial of Honduras: Annexes: PP. 17-18.
72. Memorial of Honduras: P. 556.
73. Memorial of Honduras: Annexes: p. 13. 6.50. The Memorial of Honduras also cites
(74)
the description of the plan which indicated
the Parishes of San Miguel made in iso4 by the Bishop
l of Guatemala. This document indeed contained references
to islands but none of them was shown as being subject
to the jurisdiction either of Tegucigalpa or of
Comayagua. Two islands were shown as belonging to
Conchagua and one to the Bishopric of Leon, something
which, according to Honduras, amounted to an error.
If there was indeed such an error. the error was to ,
the detriment of San Miguel since that by this date
the jurisdiction of San Miguel over the islands of
the -Gulf of Fonseca was already defined as a result
of the decisive pronouncement of the "Juez Principal
de Tierras" of the "Real Audiencia" of Guatemala in
1766. On the other hand. El Viejo is a port of
Nicaragua.situated on the River Estero Real some twenty
' miles from the Gulf. This demonstrates clearly that
jurisdiction over the islands was only able to be
exercised from ports such as La Uni6n in ConchaQua
and El Viejo in Nicaragua and not from a Coast without
ports such as that possessed by the "Alcaldia" of
Tegucigalpa. This is confirmed by the Report of
Gutierrez Ulloa of '80 (75), where it was stated
that Conchagua was within the jurisdiction of San
Miguel and had a common boundary with Nicaragua.
6.51. In the Report presented in 1804 by the
74. Memorial of Honduras: p. 556.
75. Memorial of El Salvador: Annexes to Chapter
12, Annex 11. Governor Intendent of the Province of
Honduras. Ramon de ~n~uiano. (76) (this Report was
also cited in the judgement in the Arbitration between
Guatemala and Honduras 77) ) the islands of the Gulf
of Fonseca do not appear in the .description either
of Choluteca or of Nacaonie. thus proving decisively
that the province of Honduras never exercised either
civil or ecclesiastical jurisdiction over the islands
during any part of the colonial period. In this Report,
the Governor Intendant produced a detailed study of
the whole of the Province of Honduras. indicating
each Judicial District with the Spanish and Indian
townships comprised within it; no mention whatever
was made of the islands in the section describing
Choluteca and Nacaome; on .the other hand. in the
section describing the Port of ~rujillo on the northern
Coast of the Province of Honduras. mention was made
of the island of Roata.
6.52. Final1y-. the Memorial of Honduras (78) cites
- the Proclamation made in 1819 by the Governor
of the Province of Honduras in relation to the invasion
by pirates of the islands of the Gulf of Fonseca.
This Proclamation, into which were insinuated certain
reactionary comments contrary to the movement for
independence that was already in existence at this. .
time, has absolutely nothing to do with the
determination of respective Provincial jurisdictions.
76. counter Mernorial of El Salvador: Annexes:
vol. VIII, p. 195.
77. See Counter Memorial of El Salvador: Para-
graphs 5.23.-5.21.. pp. 154-155 (footnotes).
78: Memorial of Honduras: Annexes: pp. 2324-2325.III. The Peaceful and Continuous Display of State
Authori tv
6.53. Although the decision of th9 "Juez principal-
de Tierras" of the "Real Audiencia" of
Guatemala in 1766, resolving the %question of the
jurisdiction over the islands in favour of San Miguel,
belonged to the period Prior to the date of the
Independence of Central America in 1821. a decision
of this type. so precise and categorical. could not
have failed to have an influence over the physical
possession of the islands following the date of
Independence. Indeed that is exact1y what occured,
as much during the period of the Centra1 American
Federation as upon its separation into the distinct
Central American Republics.
6.54. An international incident occurred in 1847,
namely the occupation of the islands ordered
by the British Consul Chatfield. This functionary,
who was acting under the instructions of the British
Foreign Minister. Lord Palmerston. and who waç
(79)
motivated by the strategic importance of being able
to dominate the inter-oceanic Foute, could not possibly
have made any mistake in the attribution of
sovereignity over the different islands which he was
coveting. that is to say the Islands of Meanguera.
Zacate Grande and El Tigre. According to the document
annexed to the Memorial of Honduras (sO), Chatfield
79. Memorial of Honduras: Annexes: P. 2231.
80. Memorial of Honduras: Annexes: p. 2229.stated: "tenu du fait que ces deux Etats reclament.
à mon avis; ces iles comme étant les leurs, je
chercherai A me renseigner sur le façon dont ils
considerèrent leur droit respectif". The result of
this investigation which was carried out by Chatfield
was that, in respect of El Salvador. he took as a
pledge in 1849 "al1 the Islands of this Bay belonging
to 'the actual State of El Salvador, especially
Meanguera. ~onchagüita.' Punta de Zacate, and Pérez"
(81) and, on the other hand. in respect of Honduras,
he limited himself to taking as a pledge in a the
Island of El Tigre (82).
6.55. The reaction of Honduras to this measure
is very illustrative. Honduras did not appeal .
against the actions of Chatfield objecting that he
had made a mistake in his juridical investigation
as to the rights of the two States in respect of the
islands and protesting against the attribution to
El Salvador of the Islands of Meanguera. Conchagüita.
Punta de Zacate and Perez. Honduras confined itself
to trvina to recover the Island of El Tiare, not by .
force. (the idea of doing this was discarded (83)>-
but rather by means of a diplomatic manoeuvre. This
consisted of making an offer in to lease the
Island of El Tigre to the United States of America
for a period of eighteen months. thus producing a
conflict of interests between the two Great Powers
81. Memorial of El Salvador: Annexes to Chapter
11, AnneX 11.
82. Memorial of Honduras: Annexes: p. 2236.of the day (8h). The fact is that Honduras considered
that the only territorial violation committed against
it -by the British was the occupation of the Island
of El Tigre.
6.56. Whether or not the opposition between the
united States of America and the United
Kingdom was the determining reason for the handing
back of the islands. the fact was that the British
Government at the end of i849 restored to El Salvador
the Islands "belonging to El Salvador" in the Gulf
of Fonseca which it had occupied. This was the moment
at which Honduras. in the event that it believed that
it, had sovereignity over Meanguera and Meanguerita.
should have formulated the appropriate Protest claiming
the possession of these islands which were .returned
to El ~ilvador and which thus, in the absence of any
controversy in this respect. remained under the
peaceful occupation of the Government of El Salvador.
6.57. This was the situation when in i854 there
occured the negotiations for the concession
or sale by Honduras of the Island of El Tigre to the
Consul of the United States of America. Follin (85).
The Memorial of Honduras States (86) that "La
publication de ce rapport suscita une protestation
d'El Salvador et le premier expose par ce pays d'une
revendication sur l'lle de Meanguera". ~his description
84. Memorial of Honduras: Annexes: pp. 2233
& 2239-2240.
Ibid.: pp. 2246-2247.
86. Memorial of Honduras: p. 500.of what occurred bears no resemblance whatever to
what really happened.
6.58. El Salvador protested by Note on 12 October
1854 (and circulated its Note of Protest
to the remaining Central American States) against
the possible concession or sale of the Island of El
Tigre (87) on the grounds that this island belonged
to El Salvador and that it considered that such an
alienation "would affect the independence of Central
America and the port of La Union" (88). (This Protest
was motivated by exactly the same considerations which
later on led El Salvador to oppose the Bryan-Chamorro
Treaty and gave rise to the Decision of the Centra1
American Court of Justice of 1917.)
6.59. . El Salvador did not, as is stated in the
Memorial of Honduras, formulate any claim
whatsoever to the Island of Meanguera. but quite the
opposite. El Salvador. the peaceful and undisputed
possessor of the Island of .Meanguera since 1833.
discovered to its enormous surprise that the Government
of Honduras proposed to accept claims for measurement
"in relation to the Island of Meanguera and- to other
islands. which are the recognised and undisputed
property of El saivador". In consequence EI Salvador
notified whoever might be proposing to carry out this
usurpation of SalvadoreRan sovereignity that such
actions would not be tolerated. This was stated in
87: Memorial of Honduras: Annexes: pp. 2249-2251.
88. Ibid.: p. 2251.terms which left no room for any doubt as to what
could happen if th'eseproposals were persisted with:
"In respect of [the islandsl which are the property ,
of El Salvador, my Government solemnly protests through
me as intermediary against any alienation which may
be made of its property, declaring that in order to
prevent that action it wi11 not hesitate in taking
al1 the measures required by the situation."
This Note constitutes a categorical act of sovereignity
in respect of the islands referred to.
6.60. A similar line was taken; by the Commander
\
of the Port of La Union in his communication
sent at this time to the Minister of War of the
Government of El Salvador He stated that "through
(89)
informationthat 1 have received from the Island of
El Tigre, 1 have become aware that personnel of the
State of Honduras were proceeding to carry out the
measurement of the Islands of Heanguera, Punta de ,
Zacate and Ylca". He informed his supèrior that "he
had gone in advance on the tenth of that month to
the islands in question in order to obtain confirmation
of these events and prevent them". The Memorial of
Honduras admits that "Finalemente la vente des
fles ne se concretisa pas".
6.61. 1t was because of these evehts that in' 1854
Governor Guzman of San Miguel' sent to the
Minister of External Relations of El Salvador two
89. Memorial of ~onduias: Annexes: p. 2248.
90. Memorial of Honduras: P. 506.'Reports dealing with the islands (91)' The sovereignity
of El Salvador over Meanguera was energetically
affirmed and he stated that that island:
"belongs to this State, it may be on the grounds that
what is involved is the immemorial domination by the
authorities of this same State. or it may be on the
grounds that what is involved is the proximity of
Our terra firma."
6.62. He added that there was in favour of El
Salvador "the right of uninterrupted
possession for time immemorial". indicating that on
these islands "there are possession of Salvadoreïlans,
cultivated by them, and these belong to the
jurisdiction of the authorities of the town of La
Union". After observing that the Island of Martin
P&eZ had been sold by the Government of El Salvador
..
to a Salvadorefian,he added:
"The same Islands of Conchagüita, Meanguera. Punta
de Zacate and Ylca have been claimed some time ago
by Salvadorefians before the conipetent Tribunals of
this State and none of these persons has ever thought
of validating his action before the Government of
Honduras, because of the conviction of al1 as to the
fact that the State of El Salvador has remained with
the property and legal possession of these islands".
6.63. Continuing with its policy of creating new
settlements. fundamentally necessary in
the light of its enormous population density. the
Government ,of El Salvador continued engaging in sales
of land on the islands which belonged to it in exactly
the same manner as the Reports of Guzman indicate
that it had done .previously. The Memorial of El
91. Memorial of ond dur asnnexes: pp. 2252-2253.Salvador refers to the claims made in 1855 and
i92)
i856 for the juclicial measurement and sale of land
in the Islands of Punta de Zacate. El Conejo. Ylca.
Conchagüita. Meanguera and Los Pericos. The Memorial .
of Honduras (93) claims .that "L'achat de terres à
titre privé. par des citoyens salvadoriens, ou de
pays tiers, dans des iles du Golfe de Fonseca et
l'éventrielle consignation. quoique contestée, desdits
achats dans les. registres de propriété d'El Salvador
impliqueraient, sélon lui, un changement de
souveraineté. C'est manifestement con.fondre 1e
transfert. de fonds privés et celui de l'administation
publique d'un territoire."
6.64. Contrarv to what is stated by the ~emorial
of Honduras. it is not the argument of El
Salvador that the judicial measurements and sales
of land belonQing to the State and the progressive
installation of Salvadorerlan families on the islands
implies a change of terri'torial sovereignity. given
that the territorial sovereigni ty of El Salvador over
its islaiids in the Gulf of Fonseca has not changed
sirice ttiis sovereignity rias always existed and has
always been vested in El Salvador. What El Salvador
does argue is that the riieasurements, the sales and
the subsequent registration thereof on the basis of
judicial decisions signifies, in relation to land
belonging to the State, the exercise of jurisdiction
and of normal local administration which. if realised
92. Memorial of El Salvador: Annexes to Chapter
11, Annexes 4 & 5.
93. Memorial of Honduras: pp. 552-553.during a prolonged period. demonstrates the exercise
and display of State authority over a group of islands.
6.65. This proposition is based on the judgement
of the International Court of Justice in
the Echreos and Minquiers Case. ~n reaching its
conclusion in favour of the sovereignity of the United
Kingdom over this group of islets, the Court took
into account the exercise of jurisdictional and
legislative activities and the fact that ."It is
established that contracts of sale relating to real
property on the Ecrehos Islets have been passed before
the competent authorities of Jersey and registered
in the public registry of deeds of that island.
Examples of such registration of contracts are produced
for 1863. 1881. 1884 and some later years" (94). The
Court reached the same conclusion in respect of the
Minquiers Islets. stating that "It is established
that contracts of sale relating to real property in
the Minquiers have. as in the case of the Ecrehos,
been passed before the competent authorities of Jersey
and registered in the public registry of deeds of
the Island. Examples of such registration of contracts
are given for 1896, 1909 and some later years" (95).
In this final case little more than fifty years was
sufficient to enable the Court to reach this
conclusion.
6.66. In the same manner. the Court took into
94. I.c.J. Reports 1953 P. 65
95. - Ibid. P. 69. account the fact that "Since about 1820,
and probably earlier, persons from Jersey have erected
and maintained some habitable houses or huts on the
islets of the Ecrehos" (96)' thus concluding .that
"TheSe various facts show that Jersey authorities
have in several ways exercised ordinary local
administration in respect. of the Ecrehos during a
long period of time" (97)' On 'thebasis of legislative
and jurisdictional activities and of these facts the
Court concluded that "British authorities during the
greater part of the nineteenth century and in the
twentieth century have exercised State functions in
respect of the ~~OUP" (98).
6.67. In 1878 the "Juzgado General de Hacienda"
(the Principal Tribunal for Fiscal Matters)
ordered a public auction of available land on the
1sland of Meanguera (99), something which constitutes
a further jurisdictional activity in relation to this
\
island.
6.68. In 'the Cruz-Letona Treaty was signed.
This TreatY drew a frontier line which left
within the jurisdiction of El Salvador the Islands
of Meanguera and Meanguerita. As can readily be seen,
the islands which Honduras claims are the sole subject
matter of the dispute as to the islands were thus
96. Ibid. P. 65.
97. Ibid. p. 66.
98. Ibid. P. 67.
-
99. Mernorial of ~1.Salvador: Annexes to chaptir
11, Anriex6.attributed to El Salvadorf by the Cruz-Letona Treaty.
The person who negotiated this Treaty in representation
of Honduras, Francisco Cruz. has been the object of
numerous bitter criticisms both in the Congress of
Honduras and in the Mernorial PI-esented by the
Government of Honduras. He has been accused of having
exceeded the powers conferred upon him, of having
contradicted his own earlier claims, of having yielded
far too readily to the positions adopted by the other
party in respect of the disputed land frontier, and
so forth.
6.69. However none .of these criticisms makes the
slightest mention of Heanguera nor formulates .
the fundamental objection that he had handed over
to El Salvador a part of the Hondurenan national
territory. This fact is a conclusive demonstrat ion
that the claim of Honduras to Meanguera has been
formulated without the slightest basis contrary to
the Spanish Colonial Titles and contrary to a display
of State activity by El Salvador for more than one
and a half centuries and that this claim is not only
unfounded, but additional ly emerged far too late to
be relevant. having .been produced in a meanirigful
manner only in the period subsequent to 1884 and in
particular following the investigations of an extremely
nationalistic form produced by Vallejo in 1899.
6.70. In 1893. continuing with its .policy of
populating and educating the inhabitants
of the Islands. the Executive Power of El Salvador
established a School for Girls on the Island of
Meariguera in the Salvadoreiian Department of La Unibn It would be really absurd if the sovereignity
(1)'
over an island, instead of depending on the exercise
of peaceful and legitimate activities of State
authority, were to be determined, as Honduras claims.
by the purely fortuitous circumstance that more than
. three centuries ago. in 1604. it was the "~lcalde"
of Tegucigalpa who charged a Spaniard who could not
even sign his own name with the task of burning down
dwellings, blocking up Wells of drinking water, cutting
down fruit trees and dismantling the Church on
Meanguera, above al1 taking into account the fact
that this "Alcalde" of Tegucigalpa, as has been shown
in ,this Counter Memorial was subject to the
(2)'
jurisdiction of the Governor of Guatemala and outside
the jurisdiction of the Government of Honduras.
6.71. In 1894 the Government of El Salvador
captured some armed forces of Honduras who
had risen in insurrection against the Government of
Honduras and had taKen refuge in the Island of
Meanguera. The Government of El Salvador declared
that these armed forces had penetrated "onto the
territory of the Republic", disarmed them and, in
proof of the cordial relations maintained with the
Government of Honduras of the day.. Placed at the
disposition of that Government the arms and other
munitions that had been confiscated. The Government
of Honduras accepted these arms and ammunition without
1. Piemoriai of EI Salvador: Annexes to.Chapter
11, Annex 7.
2. Paragraphs 6.15.-6.20. pp. 170-176making the slightest comment
(3)
6.72. In 1899 Vallejo presented his Report to
the Government of Honduras in which he argued
the thesis which the Memorial- of .Honduras is now
seeking to defend. namely that the islands of thè
Golfo de Fonseca belong to Honduras. The starting
point and, fundamental premise of his thesis was "Que
les ci3tes du Golfe de Fonseca avec leurs îles
adjacentes appartiennent au Honduras ab initio"
(4) '
This phrase. the starting point of the thesis of
Vallejo. is completely demolished by the declarations
made in 1925 by Policarpo Bonilla when, as the officia1
representative of Honduras in the Mediation with
Guatemala, he recognised that, at the time of the
constitution of the Province of Honduras, it did mot
have a Coast on the Pacific (5)'
6.73. The Twenty-Seventh Conclusion stated by
Vallejo is that "L'Ordre royal émis
(6)
le 8 mai 1821 a confirmé en totalité les démarcations
territoriales primitives du Honduras, et l'on voit
ainsi la confirmation des limites de la province de
Hibueras et Honduras de Gil Gonzalez Davila. primi
occupantis": 1f this conclusion of Vallejo were
correct, ond dura would sti11 even today not possess
3. Memorial of El Salvador: Annexes to Chapter
11, Annex 8. .,
4. Memorial of Honduras: p. 576; Memorial of
Honduras: Annexes: p. 2341.
5. Memorial of El Salvador: Annexes to Chapter
12. Annex 2.8..
6. Mernorialof Honduras: Annexes: p. 2332 any Coast which could give it access to the Golfo
de Fonseca. The reality is that Vallejo ignored, among
many other matters, the Royal "Cedulas" of 1563 and
1564.
6.74. Al1 'Chat now remains is to mention various
actions by El Salvador displaying State
authority during the course of this Century.
6.75. In April ,1914. the Le~islature of El Salvador
approvecia Law which authorised the Executive
to open a Free Port on one of the islands of the Gulf
of Fonseca (7)' In May 1914, the' Legislature of El
salvador similarly approved the contract for the
construction and maintenance of this Free Port on
the Island of Meanguera
6.76. A further Law adopted in i9i6 also referring
to the territory of the Island of Meanguera
converted into a township the Cantbn of the Island
of Meanguera of the Department of La Unibn. under
the name of Meanguera del Golfo. declaring that its
.jurisdictionwould consist of the whole of that Island.
The same Law also provided that in respect of judicial
and administrative matters the new township would
belong to the Judicial District of La Unibn (9). .
7. Memorial of El Salvador: Annexes to Chapter
11, Annex 9A.
8. Memorial of El Salvador: Annexes to Chapter
11, Annex 9B.
9. Memorial of El Salvador: Annexes to Chapter
11, Annex 10.6.77. Reference is made to this matter in the
Judgement of the Central American Court
of Justice in 1917 where "the establishment of a Free
Port which the Government of El Salvador has decreed
on the Island of Heanguera" is mentioned
(10).
6.78. In the Minauiers Ecrehos Case, the
International Court of Justice. in exactly
the same way as had the Permanent Court of Justice
in the Eastern Greenland Case. considered that the
adoption of legislation referring to a particular
territory constitutes the most conclusive proof
possible of the display of State Authority. The Court
stated in the Hinauiers Ecrehos Case that it
"attributes, in particular, probative Galue to the
acts which relate to the exercise of jurisdiction
and local administration and to legislation"
(11)'
Referring to the inclusion of the Rocks of Ecrehos
within the boundaries of the Port of Jersey, the Court
stated that "this legislative Act was a clear
manifestation of British sovereignity" Exactly
(12) '
the same can appropriately be said in relation to
these Laws of 1914 in relation to Free Ports.
6.79. Finally. as has been indicated by the
Memorial of El Salvador (13), in 1966. by
10. Judgement of the Central American Court
. of Justice: p. 704.
11. I.C.J. Reports 1953 P. 65
12. Ibid. p. 66
13. Memorial of El Salvador: Karagraph 11.14.:virtue of a Decree signed by the President of Honduras
and by its Minister of External Relations,
naturalisation was conceded to a person born on the
Island of Meanguera in the Department of La Uni6n.
it being expressly stated in this Decree that the
petitioner was "Salvadorefian, having been born in
Heanguera, in the Department of La Union. in the
Republic of El Salvador" (14). This action of those
authorities who occupied the highest possi.blepositions
in relation to the international representation of
the Republic of Honduras constitutes an undoubted
recognitioflof sovereignity.
6.80. High functionaries of Honduras have
recognised the exercise by El Salvador of
State authority over Meanguera and Meanguerita. In
the newspaper "Tiempo" of 20 January 1984 appeared
declarations attributed to General Humberto Montoya,
the Commandant of the Naval Forces of Honduras. who
declared: "although historical 1y the island belongs
to Honduras, 1 would indicate that practically speaking
the authorities are from El Salvador"
(15).
6.81. On 24 January 1984. the HondureRan daily
newspaper "La Tribuna" pubiished a report
with photographs on this island of El Salvador
entitled: "Meanguera: A land where everything is of
the flavour of El Salvador." The journalist affirmed
14. Memorial of El Salvador: Annexes to Chapter
il, Annex 12.
15. ~ounter Memorial of ~1 salvador : Annexes:
Vol. VIII. P. 245. in his report that (16):
"The influence which El Salvador has exercised in
the course of 130 years is felt on a visit to the
inhabitants of the island. The neighbouring country
has shown concern for the inhabitants of Meanguera.
has constructed means of communication, schools, sports
facilities. a Municipal "Alcaldia". a Health Centre.
and even a small garrison to protect them against
anything that might happen.
"Many of the humble islanders said that they felt
"proud to have the nationality of El Salvador. In
the abandonment in which we have been for many years,
only El Salvador has remembered us".
"The reason why the inhabitants of Meanguera engage
in more commerce with El Salvador than with Honduras
is simple to explain. In the Port of La Uni6n. in
the Province of El Salvador of the same name to which.
according to El Salvador. the island belongs. there
are no problems from either the civil or the military
from one point to the-other to seek their subsistenceng
or on voyages of pleasure."
6.82. In the Hondurefiandaily newspaper "La Prensa"
of 17 January 1984. the Ambassador of
Honduras in El Salvador. Dr. Roberto Suazo Tome. was
stated. to have recognised on the previous day that
El Salvador exercised a, mandate over the island of
""This island is administered by authorities of El
Salvador. they have tribunals of justice. there is
a garrison. that is to say that at this moment El
Salvador is exercising a mandate there", emphasised
suazo Tome" (17).
16. Counter Memorial of El Salvador: Annexes:
Vol. VIII, p. 258.
Ibid.: Vol. VIII, p. 251. 6.83. In the Hondurefian daily newspaper "El
Heraldo" also of 17 January 1984. when the
Ambassador Dr. Suazo Tome was consulted as to who
exercised ownership of the said island. this
representative of Honduras was categorical in
affirming: "for no one can it be a secret that
Meanguera is administered by the authorities of El
Salvador, who exercise their mandate to such a degree
that there exist police stations and public offices
of the governm,nt of El Sa1vado.r (18).
. 6.84. In the Hondurefian newspaper "Tribuna" on
i 6 ~ugust 1986 there was published a
declaration attributed to the President of the National
Congress of Honduras. Carlos Orbin Montoya, who stated:
"The jurisdiction of El Salvador over Meanauera and
Meanauerita has existed for approximately 200 years
.... if we are reasonable we cannot make a fuss about
something lost in the sense that we have not exercised
sovereignity over these territories"
(19)'
6.85. These declarations reinforce the proofs
presented by El Salvador in respect of its
sovereignity over the islands of the Gulf of Fonseca.
18. Counter Memorial of El Salvador: Annexes:
- Vol. VIII, P. 248.
19. Ibid.: Vol. VIII, p. 255. CHAPTER VI1
THE JURIDICAL STATUS OF THE GULF OF FONSECA
-
1.1. The Parties in dispute in this litigation
are in agreement in considering the Gulf
of Fonseca as an historic bay whose offshore
waters. constitute exclusive waters for the common
use of the three riparian States (2)' Consequently,
the Gulf of Fonseca constitutes a tri-national bay
in which the three riparian States enjoy,equal rights.
including in particular the right of free access to
and from the high seas (3>. The Parties are in the
same way in agreement that each State has, adjacent
to the Coast both of its continental mainland and
of the islands which belong to it in the Gulf. an
area of exclusive jurisdiction of one league or three
nautical miles in width (4)'
1. Memorial of El Salvador: Paragraph 13.1.;
Memorial of Honduras: pp. 597. 640 & 645.
2. Memorial of El Salvador: Paragraph 13.1.;
Memorial of Honduras: PP. 608, 640 & 659.
3. Memorial of El Salvador: Paragraph 13.1.;
Memorial of Honduras: P. 595.
4. Memorial of El Salvador : OParagraph 13.1. ;
Memorial of Honduras: pp. 681 & 685-686.
This area of exclusive jurisdiction is
described in the judgement of the Central
American Court of Justice as territorial
waters but. as is observed by Accioly in
"Public International Law": Vol. II : Para-
-graph 940 (note) and as is also admitted
by Honduras. this classification has to be
attributed tp an equivocation of the judges ,
in so far as refers to the terminology
employed.7.2. Al1 these fundamental aspects of the
juridical status of the Gulf in respect
of which there exists agreement between the Parties
have been recognised by and are a result of the
judgement of the Central American Court of Justice
in 1917; indeed thus far Honduras is substantially
in agreement with this judgement. The disagreement
of di on d uirhathe judgement refers solely to the
affirmation made by the Court to the effect that there
exists a community or CO-ownership ("comunidad O con-
-dominio" in the original Spanish text) over the waters
of the Gulf outside the areas of exclusive jurisdiction
of three nautical miles in width.
7.3. Nevertheless. the conclusion of the Central
American Court of Justice that there exists
community or CO-ownership over these waters is the
inevitable corrollary of the remaining characteristics
of the Gulf accepted by Honduras. that is to say that
what is under consideration is a tri-national historic
bay in which the three riparian States enjoy equal
rights and which for more than four and a half
centuries has been and sti11 is available for the
common use of the riparian inhabitants. These
characteristics inev'itably lead to the conclusion
that the juridical status of the Gulf is only capable
of being one of CO-ownership by the three riparian
States of the waters beyond the areas of exclusive
jurisdiction. exactly as bas recognised and proclaimed
by the Central American Court of Justice.
7.4. Co-ownership or condominium has been defined
by El Erian as "joint sovereignity possessedby two or more States over a defined territory" (5)'
The CO-ownership so defined is a translation into
the terminology of Public International Law of the
fact that an area of water is used in common or in
community by those States which have rights thereover.
It is a common phenomemon in historic bays, in joint
estuaries, and in frontier rivers and is the case
in this litigation that waters are used in common
by the riparian States. This signifies that, so far
as fishing rights are concerned, any embarcation flying
the flag of one of the riparian States is entitled,
in common with al1 such embarcations, to fish in any
O
part of the waters used in common; that, so far as
navigation is concerned. 'embarcations of al1 flags
are entitled to navigate freely, largely through the
navigation channels which give access to the ports
since "outside these channels navigation is dangerous
because of the lack of depth and the existence of
Sand banks" (6), and that. so far as any problems
of jurisdiction are concerned. where the embarcation
in question belongs to one of the riparian States
jurisdiction is determined by the flag and where this
is not the case jurisdiction is determined by the
port to which the foreign embarcation is heading or.
if it is outward bound to the high seas, by the port
from which it has most recently sailed.
5. A.E. Erian: "Condominium and related situa-
-tions in International Law" (Cairo, 1952)
p. 70.
6. This fact was mentioned in the judgement
of the Central American Court of Justice
as emerging from a source in Honduras
(A.J.I:L. (19171 P. 703). 7.5. The jurisdiction of each State is thus
exercised at different places and times
without any conflicts arising as to the right thereto.
Such a situation does not in practice give rise to
any difficulties whatever, as is revealed in the
present case by the fact that the Memorial of Honduras
fails to mention any maritime incidents or conflicts
of jurisdiction which could make either imperative
or necessary a jurisdictional delimitation. The above
is therefore the de facto situation and, what is more,
a situation which is relatively common. Nevertheless
the jurist obviously needs to know, in a situation
such as this where waters are used in common. who
is the sovereign thereof. And in the face of this
question. the obvious response cannot be different
?rom that which was given by the Central Ameri.can
Court of Justice: in such cases what is in existence
is joint-sovereignity. in other words co-ownership
or condominium.
7.6. t es pi ttee above. Honduras denies any form
of co-ownership. The fundamental criticism
of the conclusion reached by the Central American
Court of Justice set out in the Memorial of Honduras
,
is that the concept of co-ownership isan inappropriate
and antiquated concept that the Central American Court
of Justice took from Private Law and which.
consequently. does not exist in Public International
~aw and that. above all, such co-ownership can only
come into existence as the result of a forma1 agreement
which establishes it by meansof a bindino treaty.
I. CO-ownershi~ in Multinational Ba~s and Estuaries
7.7. Far from being an inappropriate and antiquated concept, CO-ownership or joint
sovereignity is particularly appropriate for and enjoys
numerous contemporary applications to multinational
gulfs, estuaries and bays; indeed this concept is
l
especially appropriate in cases such as that of the
Gulf of Fonseca. whose closing line. drawn from the
headland of Punta Coseguina in Nicaragua to the
headland of Punta Amapala in El Salvador, is controlled
by only two of the three riparian States, Nicaragua
and El Salvador.
7.8. There has been for some time considerable
discussion as to whether as a matter of
principle it is legitimate according to Public
International Law to close off multinational bays.
whether or not also historic bays. (It is here
appropriate to mention in passing that the Gulf of
Fonseca is also today, without prejudice to the fact
that it remains an historic bay. a juridical bay.
As a result of the evolution in the Law of the Sea
that has occured in recent years, the Gulf of Fonseca
has been converted into a juridical bay simply because
it fulfils the pre-conditions laid down in Article
10 of the United Nations Convention on the Law of
the Sea of 1982 in that its mouth ,and its closing
line comprise less than twenty-four nautical miles
while it amply satisfies the other requirements of
that Article.)
7.9. The traditional position as a matter of
principle is represented in Oppenheim:
"~nternational Law", which, even in its Eighth Edition
tedited by Lauterpacht), stated that, contrary to
what occurs in the case of,bays belonging to a single
State, multinational bays cannot be closed off andthat. consequently, the territorial sea of the riparian.
States has to follow the line of the coast so that
the major part of the waters of such bays constitutes
high seas (7)'
7.10. This traditional position has been opposed
by many , prestigious commentators by the
use of arguments which are extremely difficult to
refute. Thus C.C. Hyde states
"When the geographical relationship of a bay to the
adjacent or enveloping land is such that the sovereign
of the latter, if a single State, might not unlawfully
claim' the waters as part of its territory, it is nOt
apparent why a like privilege should be denied to
two or more States to which such land belongs. at
least if they are so agreed."
7.11. The same thesis is expounded in the
' Commentary to Proposals on Territorial Waters
prepared at Harvard, where it is indicated that (g):
"If the same waters were bordered by the territory
of one state only, that State would clearly be
entitled, under Article 5, to treat al1 of the Waters
as inland waters. The power of two or more States
should not be smaller than the power of one state
in this respect if the states can reach an agreement."
-
7. Oppenheim: "International Law" (8th Ed.):
Vol. 1: PP. 508-509.
8. C.C. Hyde: "International Law, chiefly as
as interpreted and applied by the United
States" (2nd Ed.): Vol. 1: P. 475.
9. "Research in International Law. Harvard
School, Territorial Waters": 23 A.J.I.L.
(1929) Special Supplement: p. 274. e
7.12. These considerations seemed extremely
difficult to rebut. But. in contrast to
other classical commentators who advanced no reasons
whatever to justify the different treatment which
they proposed for multinational bays. the French writer
Gilbert Gidel did advance an argument which. in his
view, justified the discriminatory treatment proposed.
Gidel States
' "En ecartant la construction d'une 1igne transversale
dans le cas de pluralité de riverains. on ne laisse
au-devant des territoires respectifs des Etats
riverains et de leurs laisses de basse mer qu'une
bande de mer "territoriale" (et non pas d'eaux
interieures): or il est de la nature juridique de -
la mer territoriale de comporter le droit de "passage
inoffensif". La Liberte des communications maritimes
avec la mer ouverte des Etats riverains de la baie
se trouve. ainsi juridiquement assuree. Telle est la
raison, simple y décisive. encore que non exposee
par les auteurs, pour laquelle il y a lieu d'écarter
la determination de la mer territoriale à l'aide d'une
ligne transversale tiree en travers de la baie, lorsque
plusieurs Etats sont riverains de cette baie."
7.13. In other words, Gide1 justifies the rejection
of the territorial nature of multinational
bays because of the necessity of securing free access
to the sea for al1 the riparian States. It is obvious
that he considers only the situation where the waters
in question are not subject to a community or to co-
ownership. This isf'thecase. for example. in the Gulf
of Aquaba. The two States which control the exit from
this bay. Egypt and Saudi Arabia. regard their coastal
waters as interna1 waters of exclusive jurisdiction
10. G. Gidel:, "Droit de la Mer": Vol. III:
pp. 595-6.
. . for each of them. Consequently, Israel and Jordan.
whose coasts are situated at the base of the bay.
could not reach the high seas without the permission
of Egypt and/or Saudi Arabia since in order to reach
the high seas their embarcations would have had to
cross the interna1 waters o,f either or both of these
States. This consequence led the major maritime powers
to reject the closure of this Gulf and so treat its
waters as waters of the high seas. thus justifying
the arguments of Gidel
7.14. But in the case of the Gulf of Fonseca
the difficulty indicated by Gidel disappears.
Embarcations flying the flag of Honduras heading
towards or proceeding from the ports of Honduras have
free access from or to the high seas since these
embarcations are using waters and navigation channels
which are of common use and which, consequently. are
under joint sovereignity or CO-ownership.
7.15. Honduras is insisting on a delimitation
but this would npt be in its own interests
if those interests are properly understood. ~his is
for the following reason. Any delimitation which takes
into account the indisputable sovereignity of El
Salvador over the Island of Meanguera would inevitably.
result in the navigation channels which lead to the
ports of Amapala and San Lorenzo in Honduras being
closed to the shipping of Honduras simply because
11. . See Selik: "A consideration of the legal
status of the Gulf of Aquaba": A.J.I.L.
[19581 pp. 508-509. these channels would then be interna1 waters subject
to the exclusive jurisdiction of El Salvador (12).
7.16. If the final objective of a judicial decision
is, as is indicated by the Memorial of
Honduras to bring to an end an international
dispute, any)'delimitation in this case would, for
the reason which has just been expounded. not bring
\
'about the disappearance of existing difficulties,
since none at present .-ist. but would rather create
difficulties for the future. On the other hand, the
solution of this international dispute which would
contribute to a truly definitive settlement would
be the recognition of the indisputable sovereignity
of El Salvador over the Islands of Meanguera and
Meanguerita.
7.17. The problems which would arise in the Gulf
of Fonseca in the évent of -a delimitation
,
and those which could .or actually do occur in -other
multinational gulfs and bays explain why, in many
of these cases, the solution that has been adopted
has also been that of the common use or community
of the waters and the consequential joint sovereignity
or CO-ownership. The Bel~ian commentator Eric Suy
has made the following statement in respect of
multinational bays:
,12- Mernorialof Honduras: p.. 702':Map C-3.
1.3.. Memorial of Honduras: p.: 690: "Si contrairement à 1'opinion dominante dans la
doctrine. on appliquait egalement à ces baies le
principe de la ligne transversale, il se pose le
problème non pas de la condition juridique des eaux
situes derrière cette ligne. car ce sont des eaux
interieures. mais de leur attribution aux Etats dont
les cotes sont baignees par elles. A ce propos on
a proposé deux solutions differentes. La première
consiste a partaaer ces eaux en parts divises entre
les Etats côtiers, Cette solution n'a pas trouvé
beaucoup d'appui parmi les auteurs, tandis que celle
du condominium est plus répandue. Selon cette theorie,
tous les Etats riverains auraient le droit de
souveraineté sur la totalite des eaux de la baie."
(original emphases) (14)
7.18. And the Dutch commentator Bouchez writes
in his book entitled "The Régime of Bays
in Jnternational Law" that (15):
"Adjudgment of a bay enclosed by more than one Sthte
implies that there are two possibilities: condominium
and division of the bay. If the bay is enclosed by
two States and each of them is situated at the
entrance. a division may easily be brought about.
In this way the objections raised above against the
status of condominium are avoided. In al1 other
circumstances, when one of the coastal States is not
situated at,the entrance, a condominium and division
of the waters can have the same significance. In this
situation the prevailing circumstances are decisive
in the question whether a condominium or a division
of the waters must be established. If the only
communication of a State with the high seas is via
a bay enclosed by more than one State, and the State
itself is not situated at the entrance, of which
Jordania is an example. the status of condominium
is to be preferred. As a result of the status of
14. E. Suy: "Les Golfes et les Baies en Droit.
International Public": Die Friedens Warte
34 (1957/58) p. 115.
15. Bouchez: "The Régime of Bays in International
Law": p. 196.condominium free communication with the high seas
has been ensured for al1 coastal States, as in that
case a State like Jordania borders immediately on
the high seas." (original emphases)
And this commentator, referring to the situation of
bays enclosed by more than one State. one of which
is not situated at the entrance, subsequently adds
that :
O
"If the coastal States exercise joint sovereignity
over the bay there is no real problem concerning the
status of the water area involved. In these
circurnstances the waters of the bay can without any
objection be regarded as internal waters."
"If, on the other hand. the waters of the bay are
divided, al1 kinds of problems may arise." (17)
7.19. It therefore ought not Yo be surprising
that the practice of States provides numerous
examples of gulfs, bays, and estuaries where the status
of CO-ownership exists. either as the result of express
stipulation or as the result of a long tern practice
of joint utilisation of the waters in question. The
commentator Bouchez, .to whose work reference has
already been made, indicates in a section of his work
entitled. "The Practice of States'' various examples
of such situations, such as the Estuary of the Rivers
Ems and Dollart (18), the Estuary of the Wester Schelde
16. Ibid. p. 173.
17. Ibid.. see also at p. 182 where he reiterates '
"If one of the coastal States is not situated
at the entrance free communication can be
safeguarded: A) when the waters fa11 under
the régime of interna1 waters: ..... by
the status of condominium"; see also at
p. 184. the Estuary of Lough Foyle and Lough Carlingford
(19)'
the- ~ay: of Fkgu,Per, Hendaye. in re1:at-Coato-
(20)'
conference Island (21) ,,the ~ulf of Menton (22). the
Gulf of Trieste (23) at the time that this work was
written (in 1963). the Bay of-Krek (24) prior to 19r8;
the Gulf of Sollum in the area. of Macao .(2Et).,~0wi.e~
the Estuary of Sunderbanks (27), the Estuary
Bay (26)'
of Klor Abdul lah (28)' Honduras Bay (29*);. the ~ay
of Manzanillo (30.), and the Mouth of capones (31).
This really significant list of examples repudiates
completely the contention of Honduras that the concept
of CO-ownership or joint sovereignity is antiquated.
transitional. and solely produced as the result of
a war.
7.20. To the list of examples provided by Bouchez
it would also have been appropriate. at
the time when his work was written (in 1963). to have
added the Estuary of the River Plate. which was then
Ibid. pp. 130-135.
Ibid. pp. 135-137.
Ibid. pp. 137-138.
Ibid. p. 138.
Ibid. p. 138.
Ibid. PP. 138-139.
Ibid. PP. 140-141.
Ibid. p. 142.
Ibid. pp. 142-143.
Ibid. p. 144.
Ibid. p. 159.
Ibid. p. 163.
Ibid. p. 168. also subject to a regime of this kind. This Estuary
.in fact remained undelimited for a century and a half,
during which period its waters were regarded as
interna1 waters which were utilised by Argentina and
Uruguay by virtue of a system of common user. The
principal obstacle to any delimitation carried out
on the basis of the principle of equidistance was
the fact that the navigation channels, which constitute
the useful part of the river and which have to be
dredged frequently, are in one sector close to the
' coast of Uruguay and in another sector close to the
coast of Argentina. This fact also presented
difficulties in relation to any application of the
criterion of Thalweg. Consequently a system of common
user and CO-ownership of the waters of this Estuary
operated until 1973, when it wasreplaced by a complex
Treaty comprising no less than Ninety-Two Articles.
The provisions of this Treaty have certain similarities
with the conclusion reached by the Central American
Court of Justice in 1917 in that they establish an
area of exclusive jurisdiction for each State and
a central area whose waters are utilised in common.
The Treaty also contains specific provisions relating
to the exercise of jurisdiction. based primarily on
the flag of the embarcation in question and the effect
of the illicit action in question with a residual
criterion based on the median line of the estuary.
1t is provided that, while the navigation channels
belong to whichever State had constructed and
maintained them. navigation therein is free for
embarcations of al1 flags. Further. fishing rights
in the area of common user can be freely enjoyed by
embarcations of both riparian States. The Treatyalso
establishes an Administrative Commission to enforce the application of its provisions. which apart from
those already mentioned include regulations relating
to 'pilotage. contraband, the preservation of human
I life, salvage. pollution. and scientific research.
This lengthy list of provisions clearly illustrates
the complexity of any delimitation. albiet of a partial
kind. of waters of this type.
7.21. Another example of this type of co-ownership
actually exists in Central America in the
Bay of San Juan del Norte and the Bay of Salinas
between Nicaragua and Costa Rica. This co-ownership
was also established by the Central American Court
of Justice which stated
(32):
"The Bay of San Juan de1 Norte and of Salinas are
common to the two Republics and. consequently, the
juridical principle of co-ownership is maintained
in both terminal points of a possible canal."
II. The Establishment of a System of Joint SovereianitY
or CO-ownershi~ does.not require any forma1 agreement
7.22. The criticism of the decision of the Central
American Court of Justice in 1917 which
is made most insistently in the Memorial of Honduras
is that the establishment of a system of co-ownership
such as that upheld by that decision inevitably and
undoubtedly requires a. forma1 agreement of al1 the
affected States. The Memorial of m on dur asly cites
one authority in support of this proposition, namely
32. Manuel Castro Ramirez: "Cinco aaos en la
Corte de Justicia Centroamericana" (San
Jose. Costa Rica (1918)) p. 124.the Italian commentator Cavaglieri. However, this
commentator is nothing like as radical as the Memorial
of Honduras suggests: he does not regard such a forma1
agreement as actually indispensable since he clearly
states that a de facto agreement is quite sufficient.
This is demonstrated by the following statement some
paragraphs prior to the quotation cited in the Memorial
of Honduras (33):
"Il se peut que l'établissement de la frontière sur
certains points prèsente de telles difficultés qu'il
soit impossible aux États interessès d'arriver à un
accord. Tant que cet accord n'est pas possible. on
soumet le territoire pro indivis0 à l'autorité commune
des Puissances contestantes." (original emphasis)
7.23. Nor does Accioly share the view expressed
by the Memorial of Honduras as to the need
for an agreement formally entered into by means of
a Treaty. This author writes (34)'
"no existe, en tales casos. propiamente una
coexistencia de dos soberanias sin ilnicamente la
reparticibn de atribuciones entre dos O mas potencias
distintas. O el ejercicio de la competencia de cada
uno en momentos diferentes.
"El condominio se funda siempre en un arreglo O
tratado, que impide los conflictos de jurisdicci6n."
(in translation) "there does not exist. in such cases.
a CO-existence of two sovereignities as such but only
a sharing out of jurisdiction between two or more
different powers. or the exercise of the competence
of each one at different moments.
33. Cavaglieri: Recueil de Cours de l'Académie
de Droit International: Vol. 26: p. 388.
34. Accioly: "Treatment of Public International
Law": Vol. 1: Paragraph 336: p. 258. "The condominium is always based on an arrangement
or a treaty. which prevents jurisdictional conflicts."
7.24. This fortunate and original intuition of
Accioly to the effect that joint sovereignity
or CO-ownership can suppose the exercise of the
competence of each State at different moments and
can result not only from a Treaty but also from an
informa1 arrangement is particularly. valid in cases
of maritime jurisdiction.
7.25. On land. the absence 'of any delimitation
is not, in itself. sufficient to lead to
a joint exercise of sovereignity since such an absence
of delimitation is generally accompanied by de facto
frontiers.
7.26. On the other hand on the sea. where human
establishments cannot be set up, the
situation is often different. The absence of any
delimitation with the consequential absence of beacons,
buoys and other means of denoting maritime frontiers
together with the principle of free navigation for
embarcations of ail1 flags ensure that frequently the
navigant or fisherman is not able to determine with
precision in which jurisdiction he is or when he has
passed from one jurisdiction to another. This in
practice inevitably means that the different maritime
authorities tolerate the parallel exercise of acts
of jurisdiction by one another in different places
and. as Accioly States, at different times. depending
for example on the flag or the port of destination
of the embarcation in question. This situation is
translated into a tacit modus viviendi which. in juridical terms, ~upposes a situation of joint
sovereignity or co-ownership.
l
7.27. Even the Memorial of Honduras, in spite
of its insistence on the need for a forma1
Treaty. goes so far as to state (35) :
"Or on pourrait trés éventuellement admettre. en
l'absence de convencion formelle. qu'en dépit de son
importance, un tel traité, appuyé sur une tradition
longue y paisible, résulte d'une attitude concordante
des trois Etats en cause, telle qu'elle se
manifesterait dans leur legislation interne y leur
comportement réciproque. On serait alors confronte
à une sorte de coutume locale trilaterale. dont le
caractere consensuel serait sans doubte avéré."
And it mUSt signify something that both the present
Constitution of Honduras (in Article 10) and the 1950
Constitution of El Salvador (in Article 7) coincide
in contemplating the possibility that the Gulf of
Fonseca may be subject to a special regime ("a un
regimen especial" in the original Spanish text).
7.28. An authoritative confirmation of the
existence of cases similar to this/"coutume
locale trilaterale" (to use the words of the Memorial
of Honduras) can be found in a work written by a
Commander of the United States Navy. Mitchell P.
Strohl. entitled "The International Law of Bays" This
commentator devotes a chapter of this work to "Bays
35. Memorial of Honduras: pp. 664-665.within the Littoral of Two or More States". in other,
words multinational bays. On the basis of his
experience, this Naval Officer affirms
(36) :
"Each bay of this type is in itself a special situation
wherein the practices of the States concerned have
usually evolved 'through the mutual recognition of
their combined needs.:
~urther on he adds
(37) :
"In coastal waters, and in certain border zones. there
is as a practical matter often a good bit of de facto
joint sovereignity despite the presenceof an actual
boundary .9,
And he concludes by sa~ing~(~~):
"Such local working arrangements wi i1 inevitably ?!orne
into being whenever there is an undisturbed community
of interest."
In the case presently being litigated.'these working
arrangements and practices do not exactly dat-e only
from yesterday!
7.29. In the present case, the informa1 agreement
has been reinforced as-a result of the
process of succession to pre-existing rights. The
utilization in common of the waters by al1 the riparian
inhabitants has been developed over more than three
centuries. supported by the unity of the dominio of
the spanish Crown from 1522 to 1821 subsequently
followed by the dominio of the Central AuErican
Federation from 1821 to 1839. ,Upon the occurence of
the division of that Federation into. for present
37. O~.cit. p. 380 (note).purposes. three Sovereign States, the same utilization
in common of the waters.continued for a further hundred
and fifty years, generating in an automatic way during
this period a system of con-dominio. There was no
reason why the division of the Central American Federal
Republic should have modified the status of these
waters.
7.30. This demonstrates that the concept of the
historic bay, recognised by both Parties
as appropriate in the present case. contains an element
of succession of States in Publi,c International Law
so far as concerns the juridical status of the Gulf.
the status of its waters. and also the individual
arrangements for the functioning of the region. It
is for thi. reason difficult to accept the affirmation
of Werzji 1 transcribed by the Memorial of Honduras
to the effect that it (39):
"....n'est guère possiblp de formuler .... des règles
de succession territorllale dans une baie qui, par
le changement de souveraineté. cesse d'appartenir
a un seul Etat. n'el gouvernée ppar aucune règle
positive de droit".
7.31. In the first place. there is applicable
the principle of Public International Law
which establishes the transmission by way of succession
of territorial arrangements and of the norms of a
dispositive character - that is to Say. the norms
which impress a territory with a status which is
permanently established. And in such a transmission
by way of succession is included not only the status
of the waters but also their treatment as a whole
39. Memorial of Honduras: p. 610.and the utilisation in common to which these waters
have been and are subject. For three centuries. from
1522 to 1821. the Gulf was dealt with as a single
unit enjoyed in common by al1 its users under the
Spanish Colonial Administration and the same occured
during the Federal period from 1821 to 1839. When
the Gulf was transfèrred to the three riparian Central
American States. this utilization in common continued.
with the parcial exception of the three nautical miles
closest to the coasts. and indeed continues up until
the present day. Consequently what the Memorial of
Honduras wishes to bring to an end is more than four
and a half centuries. to be precise four hundred and
si'xty-eightyears. of the arrangements and practices
which comprise the utilization in common and the joint
sovereigniZy of the waters. In the Grisbadarne Case, .
the Tribunal of Arbitration stated that
"que, dans le droit des gens. c'est un ,principe bien
etabli, qu'il faut s'abstenir autant que possible
de modifier l'etat des choses existant de fait y depuis
longtemps."
Quieta non movere.
7.32. In spite of this. the Mernorial of Honduras
persists in its rejection of the decision
of 1917 in so far as that decision recognises the
existence of a community or CO-ownership. that is
to Say joint sovereignity. Save in the case that this
is established by a forma1 Treaty. But what is in
40. J.B. Scott: "Les Travaux de la Cour Perma-
-nente d'Arbitrage de La Haye": p. 135.issue now is not an appeal against that decision nor
any correction or confirmation thereof but rather
the determination of the extent to which this
international precedent. established seventy-two years
ago. has contributed to the process of recognising
and fixing the present juridical status of the Gulf
of Fonseca. which is .precisely what has now to be
decided by the Chamber of the International Court
of Justice. Neither is in issue the replacement of
the decision of the Central American Court of Justice,
dictated specifically in relation to the Gulf of
Fonseca, by the Advisory Opinion of the Permanent
Court of Justice in the River Oder Case, repeatedly
invoked in the Memorial of Honduras in spite of the
fact that it has nothing whatsoever to do with the
case in hand since that Opinion concerned the
Principles of Public Intexnational Law concerning
rivers. not the International Law of the Sea, and
did not .produce. as a result of the decision handed
down. either any necessity or any need for any
delimitation. It is even less possible to understand
the reason for the invocation .by Honduras of the
Helsinki Rules aovernina International Draina~e Basins
which are in any event today rejected by States in
general (41).
7.33. The Central American Court of Justice. in
establishing for the Gulf of Fonseca a regime
41. See J. Sette Camara: "Pollution of Inter-
-national Rivers": Recueil des Cours: Vol. 1:
pp. 125 et sea. . . in the explicit form of a territorial sea for each
of the riparian States and of a maritime area subject
to con-dominion, established a juridical definition
which was sui generis, derived from the particular
individual nature of the said historic bay; a juridical
definition whose establishment was indispensable in
order to derive therefrom the rights and obligations
of the riparian States. This definition is not
litigious. but is rather a prerequisite of the actual
litigation and, for this reason. is, in every sense,
of a declaratory nature.
*
7.34. El Salvador contends ln its Memorial that
by reason of the decision of 1917 and on
the basis thereof there was created in the Gulf what
the writers on Public International Law describe as
an Objective Juridical Régime, valid erga omnes, which
has been consolidated with the passage of time and
which has obtained the recognition by and the .
acquiescence of States in general and in particular
of the Maritime Powers. who have never placed in doubt
the character of the Gulf as a Bay exclusively
belonging to its three riparian States while at the
same time they have benefitted from the right of
innocent passage proclaimed by the decision of 1917.
7.35. The teachings of publicists on Public
International Law recognises the existence
of what is called Objective Juridical Situations or
. Regimes, destined to establish a Permanent state of
affairs and characterised by the bringing into
existence .of rights in rem. valid eraa omnes. in
respect of territories. maritime zones, sea and river
routes of communication, navigation channels,demilitarised or neutral zones. and so forth. Until
not long ago the writers considered these Objective
Juridical Rbgimes in relation to the question of the
effect of Treaties on third Party States (42).
7.36. HOWeVer, as from the date of the discussions
in the International Law Commission which
drew up the Vienna Convention on the Law of Treaties.
it has been recognised that today Objective Juridical
Regimes go well beyond the field of the Law of
Treaties. 1t was then agreed that such regimes do
not originiate exclusively in forma1 Treaties but
can also come into existence as the result of the
recognition of established situations, as the result
of express or tacit acquiescence. or as the result
of the consolidation of a state of affairs which is
valid eraa omnes on the basis of Customary Law. It
was accepted unanimously at the Meeting of the
International Law Commission in 1964 that.
(43)
42. For example: .McNair: "Law of Treaties":
pp. 256-259; Pousseau: "~rincipïes de Droit.
International": pp. 461-464 & 477-484;
Fitmaurice: "Fifth Report on the Law of
Treaties": Yearbook of the Commission of
International Law 1960: Vol..II: pp. 72-107.
43. See the discussion of the proposed Article 63
by the Special Rapporteur: Yearbook of the
~nternational Law commission 1964: vol. I :
Paragraph 30. p. 101; Paragraphs 38 & 39.
p.102; Paragraph 50. p. 103; Paragraphs
6 & 10, p. 104; Paragraphs 13 & 19. p. 105;
Paragraphs 27 & 29. p. 106; Paragraph 40,
p.- 107; Paragraph 47. p. 108; Paragraph
9, P. 111; Paragraph 28, p. 113; and Vol.II:
pp. 26-30.strictly speaking. these regimes do not constitute
exceptions to the Principle pacta tertiis nec nocent
but that they can be created as a result of the factors
mentioned above when there is agreement on the part
of those States who possess specific territorial
jurisdiction over the areas affected by the
establishment of these objective Juridical Regimes.
7.37. And the acquiescence or recognition by
States, in particular those especially
affected, which is the essence of an Objective
Juridical Regime. can be given just as much in respect
of a situation arising out of a Treaty as in respect
of an Objective Juridical Regime which arises out
of. for example, a Domestic Law containing a
Declaration of Neutrality or an International Judicial
Decision. such as the decision of the Central American
Court of Justice in 1917. This is so because the
acceptance or recognition by the International
Community can occur in respect of al1 Objective
Juridical Regimes. whatever may be their source. What
id necessary in order to accept the effect eraa omnes
of an Objective Juridical Regime is not the knowledge ,
of how it originated. whether in a Treaty or in a
Judicial Decision. but whether there is tacit or
express acceptance by the States involved and in
particular by those with specific territorial
jurisdiction over the territory or the area affected.
III. The Attitude of Honduras in relation to the
Decision of the Central American Court of Justice
in 1917
,.
7.38. .The discussion carried .out in the two i . preceding sections of this Chapter
necessarily requires an examination of precisely what
has been the attitude of Honduras towards the decision
of the Central American Court of Justice in 1917.
7.39. Honduras argues in its Hemorial that the
decision of 1917 cannot be utilised as an
argument against Honduras because that State was
neither a Party to nor intervened in the proceedings
but instead on the contrary sent to.the Court a Note
of Protest in which Honduras expressed its opposition
to the claim of El Salvador as to the existence of
CO-ownership or joint sovereignity in respect of the
waters of the Gulf.
7.40. El Salvador is not arguing that the decision
of 1917 is binding .upon Honduras by the
doctrine of res judicata exactly for this reason.
namely that Honduras neither was a Party to nor
, intervened in the proceedings. What El Salvador is
arguing. however. is that. from the moment that El
Salvador commenced these proceedings. Honduras adopted
positions and attitudes which made extremely clear
its acquiescence with the three principal conclusions
which resulted from the decision, that is to say that
the Gulf has the status of an historic bay. that its
waters have the status of interna1 waters. and that
there exists a regime of community. -CO-ownership or
joint sovereignity over such of its waters as lie
outside the area of exclusive jurisdiction. that is
to say over such of its waters as are more than three
nautical miles from the Coast.
7.41. In order to define the attitude of Honduras it is crucial to analyse precisely the scope
and subsequent treatment of the Note of Protest sent
by Honduras against the claim of El Salvador; this
Note was communicated to the Court, who in tUrn
transmitted it to the Parties to the litigation. Who
duly responded theseto. and its contents were expressly
taken into account in the decision subsequently handed
down. This Note of Protest by Honduras to El Salvador.
presented before the judgement of the Court had been
handed down. questioned the extent of the claim of
EI Salvador. which had requested the central American
Court of Justice to consider al1 the waters of the
~ulf as subject to the regime of CO-ownership. In
its Protest Honduras stated that "it has not recognised
and does not recognise any regimé of CO-ownership
with El Salvador or with any other Republic over the
waters which belona to it in the Gulf of Fonseca"
(emphasis added) ("no ha reconocido ni reconoce estado
de condominio con El Salvador. ni con ninguna otra
Republica en las aauas aue le corres~onden, del Golf0
de Fonseca" in the original Spanish text).
7.42. This Protest by Honduras did not have the
global effect which the Memorial of Honduras
seeks to attribute to it. The reference made by
Honduras in making its Protest to "the waters which
belong to it" in the Gulf referred merely to the waters
covering the area up to three nautical miles frOm
its coasts. not to the remaining waters of the Gulf
outside this area of exclusive jurisdiction. As is
indicated in the Memorial. of El Salvador (44). this
44. Mernorial of El Salvador: Paragraphs: 13.6.
& 13.7..limited scope of the Protest of Honduras emerges
extremely clearly from officia1 statements of,a public
nature made at the time both by the Foreign Minister
and by the President of the Republic of Honduras.
7.43. The Foreign Minister of Honduras- first
established that the Court had in its
judgement drawn a distinction between two different
areas of the Gulf. the area up to one league or three
nautical miles from the coasts. which was held to
be subject to the exclusive jurisdiction of the
appropriate riparian State, and the area outside that .
limit. which was held to be enjoyed in common under
a regime of'co-ownership or joint sovereignity. He
then declared himself to -be satisfied and so in no
sense attributed to his Note Protest the global
effect now alleged by the of Honduras. This
clarification of the scope of the Note of Protest
was made by the Foreign Minister of Honduras in a
statement to the Congress of Honduras, as set out
in the actual judgement of the Central American Court
of Justice. in which various paraaraphs of the Report
presented on 5 January 1917 by the Foreign Minister
of Honduras to the Congress of that country are
transcribed (45). In this Report. the Foreign Minister
stated that:
"He believed that he was obliged to protest, as indeed
he did. when he became aware that the claim referred
to alleged CO-ownership over al1 the waters which
comprise the Gulf of Fonseca. considering that the
regime of CO-ownership between the three riparian
h5. A.J.I.L. (1917) PP. 716-717.Republics existed even in the waters ad iacent to the
coasts and islands of Honduras. over which there
extends. without dispute. the sovereianitv of the
Republic. as exclusive owner of the same. and in which
whichs iserduly recognised exin public documents by the
very Government of El Salvador" (emphases added).
"The Govertment has decided that. whatever mav be
the juridical status subiect to which the Gulf of
Fonseca ouaht definit ive1Y be considered to be beyond
the territorial waters. in so far as concerns these
territorial waters it cannot recognise CO-ownership
with any other Republic without compromising its
territorial integrity" (emphases added).
In the face of this extremely precise clarification
in which the Foreign Minister of ~ondurak restricted
the scope of the Protest of Honduras to its three
nautical miles of territorial waters. the Court stated:
"This Tribunal cannot do less than give to the Protest
the scope cleariy expressed by that high funcionary."
7.44. It emerges from the preceding considerations
that the formula adopted by the judgement.
that is to say an exclusive area of three nautical
miles of territorial waters followed beyond that limit
by an area of waters enjoyed in common subject to
a régime of CO-ownership or joint sovereignity,
responded to the Protest formulated by Honduras.
Honduras presented to the Court an intermediate
argument falling between the position of El Salvador
alleging total CO-ownership and the position of
Nicaragua denying any CO-ownership whatsoever and
the Court. after hearing the arguments of the Parties
to the litigation, accepted the point of view of
Honduras. It is ais0 clear that Honduras declared.
through its Foreign Minister. total indifference as
to the definitive juridical status of the area utilisedin common ("whatever may be the juridical status
subject to which the Gulf of Fonseca ought definitively
be considered to be beyond the territorial waters").
provided that the exclusive nature of the three
nautical miles of coastal waters was respected.
7.45. Further. the express and definitive agreement
of Honduras with the decision of the Court
in its totality emanates from no ,less a person than
the President of that Republic who. in an officia1
document which is annexed to this Counter Memorial
(46) (and which. ..throughinadvertence. was not annexed
to the Memorial of El saivador). made. the f0110~ing
statements. He first stated that the judgement of
the Central American Court of Justice had produced
"satisfactory results and (wasl in accordance with
the objectives of its institui0n"ind then shbsequentiy
stated:
"This Tribunal. in deciding the question raised by
the Government of El Salvador against the Government
of Nicaragua in respect of the Bryan-Chamorro Treaty.
has recognised the rights which'correspond to Honduras
in the. Gulf of Fonseca; a recognition which is in
perfect harmony with the Protest of this Government
against the claims 'of El.Salvador in relation to the
territorial waters up to where the rights of
sovereignity of Honduras are extended."
There ther..'re existed both an acceptance by 'the
Central American Court of Justice of the point of
view maintained by the Protest of Honduras and. at
the same time, an acceptance on the part of Honduras
46. Message to Congress published in La Gaceta
Oficial of 3 January '1918.Counter Memorial
of EI Salvador: Annexes: vol. VIII. p. 276.of the rbgime established by the judgement in that
the President of Honduras declared that the judgement
recognised "the rights which correspond to Honduras
in the Gulf of Fonseca".
7.46. AS the International Court of Justice stated
in the Nuclear Tests Case
(47) :
"~t is well recognised that declarations made by way
of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal
obligations. Declarations of this kind may be. and
often are, very specific."
Referring in particular to public declarations by
the President of a Republic, the Court added (48):
"There can be no doubt. in view of his functi~ns',
that his public communicatïons. or statements. oral
or written. as Head of State. are in international
relations acts of the French State."
7.47. Further, in the Case relating to the Validitv
of the Arbitration of the Kina of Spain,
Honduras argued that
"les declarations dont le Gouvernement du Honduras
tire argument sont celles que le President de la
Republique de Nicaragua y le ministre des Affaires
etrangeres de ce pays ont faites publiquement. devant
l'Assemblée legislative de ce pays.
-\
"Ces diverses declarations .... ne pouvaient être
interpretees que comme une confirmation solennelle
de l'acquiescement sans réserve donne A la sentence."
&7. 1.C.J. Reports 1974: Paragraph 43. p. 267
& Paragraph 45, p. 472.
48. 0p.cit. : Paragraph 49. P. 269 & Paragraph.
51, p. 474.
49. I.C.J. Pleadings: Vol. 1: P. 511.The Court, on the basis of these declarations, stated:
''De 1'avis de la Cour. le Nicaragua. par ses
declarations expresses et par son comportement. reconnu
le caractere valable de la sentence et il n'est plus
en droit de revenir sur cette reconnaissance pour
contester la validite de la sentence."
(50)
7.48. If Honduras were really radically opposed
to the regime of community. CO-ownership
or joint sovereignity in the waters utilised in common
outside the area of. exclusive jurisdiction. it ought
immediately to have manifested its rejection to the
formula adopted by the judgement. Honduras cannot
regime was unknown to it given that
allege that this
it received the text of the judgement. As the
~nternational Court of Justice stated in a comparable
situation (51):
"The Court notes that in respect of a situation which
could only be strengthened with the passage of time.
the United Kingdom Government refrained from
formulating reservations."
And this view permitted the Court to conclude that
the system,in question could not be opposed by a State
which had engaged in a prolonged abstention from making
any Protest in a matter which was of interest to it
In add'ition to the above argument.. it should
(52)'
also be remembered that the Central American Court
of Justice had a Judge fsom Honduras. who voted in
favour of the regime of community or CO-ownership
and that Honduras was obliged by Article 25 of the
50. I.C.J. Reports 1960 p. 212.
51. I .c.J. Reports 1951 p. 139.
52. Ibid..Convention of 20 December 1907 which created the
Central American Court of Justice to lend moral support
to its decisions.
7.49. Thus, far from repudiating the régime
established by the decision of 1917. the
Government of Honduras, through the President and
the Foreign Minister of that Republic, manifested
its welcome of the decision, emphasised that the
decision took account of the Protest of p on duras,
and showed total indifference in relation to the status
of the waters outside the area of three nautical miles
of exclusive jurisdiction.
IV. Other Attitudes AdoDted by Honduras
7.50. TO the above-mentioned acquiesence of
Honduras in 1917. it i appropriate to add
that during the, pei-iod of more than. seventy years
that has passed since 1917, Honduras has not- only
not formulated any protests or reservationsin relation
to the juridical regime established by the decision
of 1917 but, on the contrary, has continually taken
advantage of the communal character of the CO-ownership
or joint sovereignity of the waters of the Gulf.
utilising its navigation channels. even chose closest
to the mainland and island coasts of El Salvador.
as the means of access to its ports of Amapala and
San Lorenzo and as the means of access from those
ports to the high seas. The utilisation in common
of the waters of the Gulf of Fonseca is also apparent
in relation to fishing rights and to the policing
of smuggling. as is indeed revealed by documents
annexed to the Mernorialof Honduras. 7.51. So far as concerns access to the interna1
waters of the ~ulf. the position is regulated
by the provisions of the Treaty-of Peace and Friendship
of Central America (Tratado de Paz Y Amistad de Centro
America) of 20 December 1907. Article IX of this Treaty
contains the following provision:
"The ~erchant Shipping of the Signatory States wi-il
be regarded as national vessels within the seas. coasts
and ports of the said States. they will enjoy the
same exemptions. franchises and conc.essions as such
national vessels and will nOt P~Y any fees n0.r be
subject to any charges other than those which are
paid by or to which are subject the embarcations of
the State in question."
This Treaty was signed in Washington on the same day
as the Convention for the establishment of a Central
American Court of Justice and for this reason the
. central American Court of Justice was obviously very
aware of the Treaty when it handed down its decision
in 1917.
7.52. In so far as concerns the problem of
controlling smugg 1ing operations, the
Convention of 1874 set out in the Annexes to the
Memorial of Honduras (53>, established well before
the decision of 1917, is not in any way inconsistent
w.ith that decision but rather coincides exactly with
the conclusions contained therein. From this Convention
it can be inferred that there existed an area of three
nautical miles of exclusive jurisdiction adjacent
to the coasts. which area was'at that time erroneously
described as territorial sea. and the two signatory
53. Memorial of Honduras: Annexes: p. 2382.States agreed reciprocal rights of hot pursuit into'
these areas of exclusive jurisdiction in respect of
smuggling operations. The Convention contains. no
provisions in respect of the waters outside this
"territorial sea", something which .obviously implies
that any pursuit of smugglers in these waters :and
any subsequent exercise of jurisdiction in respect
thereof could be carried out by both States "in
different places and at different'times" (to use the
formula of Accioly), with each State acting in respect
of embarcations flying its respective flag.
7.53. The subsequent Convention of 1878. also
set out in the Annexes to the Memorial of
o on duras carried matters a stage further by
(54)'
providingthat the waters of the Gulf were open to
both Republics for the purposes of controlling
smuggling operations; in other words. an exception
was made to the normal regime bv virtue of a reciprocal
grant of the right to board embarcations flying the
flag of the other State. Nowhere in either of these
Conventions is there any recognition of "une
repartition des zones de cornpetence" as is claimed
in the Memorial of Honduras (55) but quite the
contrary; the Convention of 1874 merely conferred
a right of hot pursuit of smugglers into waters of
exclusive jurisdiction while the Convention of 1878
merely excluded for the specific purpose of controlling
smuggling operations the normal rule that jurisdiction
54. Memorial of Honduras: Annexes: p. 2382.
55. Nemorial of Honduras: p. 677. 246
.. follows the flag of the embarcation in question both
within the area of exclusive jurisdiction and in the
area utilised in common.
7.54. Further, in so far as concerns fishing
rights. it is -clear that in the Note of
1925. set out in the Annexes to the Memorial of
Honduras the fisherman of San Alejo sou~ht
(56)'
permission to fish in the waters of Honduras. that
is to say in waters within the area of exclusive
jurisdiction of three nautical miles which had been
recognised by the decision of 1917; Honduras duly
granted the permission sought, an action clearlY
..supportedby the decision of 1917.
7.55. Similarly, the Note of 1938. also set out
in the Annexes to the Memorial of Honduras
reveals that the permission to fish was granted
(57)'
by Honduras not as a matter of course but with the
prior authorization of the Commander of the Port of
Amapala. The fishing in question was carried out within
the area of exclusive ,jurisdiction of three nautical
miles. The recognition that both Honduras and El
Salvador have such an area of exclusive jurisdiction
of three nautical miles is in no way incompatible
with the existence of CO-ownership or joint
sovereignity outside this area of exclusive
,,jurisdiction - to the contrary. the existence of such
an area of exclusive jurisdiction is itself based
56. Memorial of Honduras: Annexes: p. 2385.
57. Memorial of Honduras: Annexes: p. 2386.on the decision of 1917. The Memorial. of Honduras ,
itself recognises that Honduras discounts Article
(58)
621 of its Civil Code which provides for an area of
exclusive jurisdiction of twelve nautical miles; this
recognition amounts to accepting and complying with
the decision of 1917 which recognised that Honduras
has an area of exclusive jurisdiction of only three
nautical miles.
7.56. The Memorial of Honduras, in seeking to
oppose the Decision -of 1917, even goes so
far as to invoke the Cruz-Letona Convention of 1884.
which was in any event. repudiated in toto by the
Congress of Honduras. in spite of the fact that this
convention not only recognised the sovereignity of
El Salvador over Meanguera and Meanguerita but i.s
also thirty-three years earlier in time than the
decision of 1917.
7.57. What is more. the Memorial of Honduras goes
even further by invoking the proposais
formulated in 1985 in the Meetings of the Joint
Boundary commission. forgettina completely that the
Internationa.1 Court of Justice has repeatedly (59)
stated that:
58. Memorial of Honduras: p. 681.
59. Nuclear .Tests Case 1.C.J. Reports 1974;
Paragraph 54, p. 270 & Paragraph 57, p. 476;
Chorzow Factory (Jurisdiction) Case Series A
No. 9, p. 19; Factorv at Chorzow (Claims
for Indemnity.. .rits) Series A No 17. PP.
49 & 62. "the Court cannot take into account declarations,
admissions or proposais which the Parties may have
made during direct negotiations between themselves,
when such negotiations have not 1ed to a complete
agreement".
And in the Nottebohm Case, the Court statèd (60):
"It would constitute an obstacle to the opening of
negotiations for the purpose of reaching a settlement
of an international dispute or of concluding a special
agreement for arbitration and would hamper the use
of the means of settlement recommended by Article
33 of the Charter of the United Nations, to interpret
an offer to have recourse to such negotiations or
to such means, consent to participate in them or actual
participation. as implying the abandonment of any
defence which a Party may consider it is entitled
to raise or as implying acceptance of any claim by
the other parby. when no such abandonment or acceptance
has been expressed and where it does not indisputably
follow from the attitude adopted."
As Professor Reuter has demonstrated (61):
"si la negociation échoue les parties n'ont pas a
craindre de se voir opposer dans une discussion de
droit les .projets d'accommodements qu'elles auraient
consenti aux interets adverse dans une phase des
negotiations."
V. Summary and Conclusions
7.58. The regime of community, CO-ownership or
joint sovereignity in the historic bay of
the Gulf of Fonseca,as duly recog'nisedby the decision
of the Central ~merican Court of Justice in 1917,
is nothing more than the corrollary and the translation
into juridical terminology of the utilisation in common
60. 1.C.J. Reports 1955 p. 20.
61. Recueil des Cours: vol. 103: p. 632.of these waters by al1 the riparian States since 1522.
-
7.59. The regime of the utilisation in common.
CO-ownership or joint sovereignity of an
area of waters or of part of the same is'also applied
in other multinational bays. gulfs. and estuaries,
especially when one of the riparian States does not
control the closing line in question, as a means of
assuring free communication with the high seas for
al1 the riparian States.
7.60. In the present case any delimitation. far
from resolving existing differences. would
in fact create difficulties which do not exist at
the moment since such a delimitation would block with
the waters of one State the navigation channels which
give access to the other State.
7.61. A regime of community. CO-ownership. or
joint sovereignity does not necessarily
have to be established by means of a forma1 treaty
but can arise out of local agreements and practices.
backed up by a long and continuous tradition of
uti1isation in common which has obtained the
recognition of the International Community.
7.62. The juridical situation in the interior
of the Gulf of Fonseca has been determined
by means of a juridical status established over the
course of time which fulfils the pre-conditions and
possesses the characteristics of an Objective Juridical
Regime. The essential (although not exclusive)
constitutive element of this Objective Juridical Regime
is the decision of the Central American Court of Justice in 1917. whose contents and juridical scope
will be expounded hereafter.
1
7.63. The said decision recognises in a positive
manner that the Gulf of Fonseca constitutes
an historic bay with the characteristics of a closed
sea in which the rights of 'the.three riparian States
CO-exist. So far as concerns the nature of these
rights, the decision has pfoduced a solution which
combines the exclusive right. which was ai that tihe
recognised as applying to al1 coastal States, to an
area of territorial sea with the necessity of
formalising the community of interest of the three
riparian States. This balanced solution consisted
in the recognition of an area of exclusive jurisdiction
of three nautical miles combined with a regime of
CO-ownership in the rest of the Gulf. The only
exception to this régime of CO-ownership is the part
of the ~ulf which was delimited between Honduras and
Nicaragua in 1900; the Treaty of that date constituted
for the Central American Court of Justice an
established fact which it did not have the power to
affect in any way what.soever. In any event this Treaty,
which is of course not binding on El Salvador, leaves
outside its scope "a considerable area of waters
belonging to the riparian States"
(62)'
7.64. The juridical scope of the decision of 1917
is that it has produced the basis of an
objective Juridical Régime, the necessary COWpOnent
62. A.J.I.L. (1917) P. 710.elements .of which are present - in particular, the
acceptance thereof by the States of the region,
including Honduras. and also by the great maritime
powers. in particular by the United States of ~merica.
7.65. The inherent elements of stability and
permanence in respect of maritime frontiers
are applicable to this territorial statuS.The
(63)
Objective Juridical Régime thus established upon the
basis of the decision of 1917 ought not, consequently.
to be questioned or be unrecognised today unless it
appears to be incompatible with the contemporary
Principles of the Law of the Sea. No such
incompatibi 1ity in fact exists; to the contrary, there
exist similar régimes in other multinational bays,
estuaries and rivers.
-
7.66. The geographical, historical. and political
reasons which inspired the decision of 1917
and the consequent constitution of the already
mentioned Objective Juridical Régime continue to be
valid at the present time. The modern Principles of
the Law of the Sea are not opposed either to the
concept of the historic bay or to the concept of co-
-0wnership in the particular geographical and
historical circumstances of the Gulf.
7.67. The Central American Court of Justice could
not have failed to have taken into account
when defining the juridical status of the Gulf of
Emphasised in the Aeaean Sea Case. Fonseca both its geographical configuration and its
historical antecedents and. in this latter respect.
the particular characteristic that its three riparian
States had previously formed part of a single political
entity; this latter factor necessarily leads these
three riparian States to consider themselves fiercely
united with the same vital interests within the
community which they form. The fact is that. as between
these three States. to use the words of Sir John
Fischer Wi 11iams. "persiste toujours cette lutte vers
une union federale, et dont les rapporks mutuels sont,
en consequence. un peu plus qu'internationaux"
(64)'
7.68.. The juridical situation of the Gulf of .
Fonseca, derived from its particular
individual nature, does not permit the dividing up
of the waters held in con-dominium precisely because
what was in issue was not the recognition of common
ownership of an object which is capable of being
divided up but. rather the definition of an .abject
which had. for geographical reasons. an indivisible
character given its configuration and dimensions.
The Decision of the central American court of Justice
recognised a territorial sea within the Gulf, something
which -is of course capabie of being divided up. but f
the portion held in con-dominium is not, simply because
of its own particular nature.
'.7.69. Since this is the case. it is a logical
64. Vol.e44 d(1933): p. 250.ademie de La Haie: consequence thereof thatq the declaration
contained in the judgement in relation to this matter
was binding not only on Honduras but on the whole
world simply because it would have no juridical logic
whatsoever to establish a con-dominium based on the
nature of the object in question and also to leave
open the possibilty that one of the CO-owners might
withdraw from his CO-ownership. Consequently, the
conclusions reached in the decision of the Central
American Court of Justice in 1917 are completely
binding on El Salvador as a Party to the litigation.
Nicaragua is in exactly the same position. If the
decision thus constitutes a res iudicata for El
Salvador and for Nicaragua. two of the riparian States
in the Gulf. how can the decision conceivably be
disregarded by Honduras, the third riparian State
in the Gulf? For this reason. Honduras can at nQ time
consider itself entitled to evade the consequences
of this judgement. consequence thereof . that the declaration
contained in the judgement in relation to.this matter
was binding not only on Honduras but on the whole
world simply because it would have no juridi'cal logic
whatsoever to establish a con-dominium based on the
nature of the object in question and also to leave
open the possibilty that one of the CO-owners might
withdraw from his CO-ownership. Consequently. the
conclusions reached in the decision of the Central
American Court of Justice in 1917 are completely
binding on El Salvador as a Party to the 1i.tigation.
Nicaragua is in exactly the same position. If the
decision thus constitutes a res judicata for El
Salvador and for Nicaragua. two of t'heriparian States
in the Gulf, how can the decision conceivably be
disregarded by Honduras. the third riparfan State
in the Gulf? For this reason. Honduras can at nq time
consider itself entïtled .to evade the consequences
of this judgement. CHAPTER VI11
THE LEGAL POSITION OUTSIDE THE GULF OF FONSECA
8.1. The pi-esent Chapter replies to Chapter XX
of the Memori,alof Hpnduras.
1. The ~urisdiction of the Court does not extend to
the Delimitation of a Maritime Boundary outside the.
Gulf of Fonseca
8.2. Chapter XX of the Memorial of Honduras begins
with the assertion that:
"les Parties ont nécessairement dote la Cour de la
competence de delimiter les zones de la mer
territoriale et la zone économique exclusive qui
appartiennent au Honduras et a El Sa1vador
respectivement."
The Government of El Salvador does not accept this
assertion.
8.3. There are a number of cogent reasons why
this contention is wrong and cannot be
accepted.
8.4. First. it runs counter to the clear wording
of the Special ~greeient. The Government
.-
of El Salvador has already set out in Chapter 8 of
its Memorial the considerations pertinent to this
point and there is no need to repeat these arguments
in detail. Suffice it to Say. there could in literal
terms be no clearer contrast than there is between
the words of Question 1 "delimit the line..." and
of Question II "determïne the juridical status ...".8.5. Secondly. the Government of Honduras has
improperly introduced into the argument
a reference to a position taken by a Party during
negotiations. It is well established in International
Law that proposals made'by parties in the course of
negotiations are entirely without prejudice to their
position in subsequent litigation and may. not be
introduced into legal argument
(1)'
8.6. In any event. in this particular case the '
proposa1 made by El Salvador was advanced
as part of a package and was entirely conditional
upon acceptance by Honduras of the whole of that
package. Honduras did- not accept the package and El
Salvador then withdrew the proposals (2) '
8.7. Thirdly, the contention of Hbnduras assumes
the very conclusion that it has to prove.
namely that Honduras has a legitimate claim to some
portion of the continental shelf and exclusive economic
zone in the Pacific. El Salvador has not accepted
that Honduras is legally entitled to any such portion
but has been prepared to accept that the question
of entitlement thus raised by Honduras should be
decided by the Court. That is why the second question
before the Court is formulated as it is. namely. as
a request for a decision regarding the legal status
of the maritime areas and not as a request for
delimitation.
1. Counter Memorial of El Salvador: Paragraph
7.57., PP. 247-248.
2. Memorial of Honduras: Annexes: pp. 917-918 B
8.8. Fourthly. even if El Salvador were to agree
with Honduras that the respective claims
of the two Parties in the Pacific should be delimited
by the Court. the Court would not be able to proceed
to such a delimitation without the participation of
Nicaragua. As is well established. the Court must in
any delimitation process take into account "equitable
principles". Among the relevant considerations is
the fact that part of the areas claimed by the two
Parties may also be claimed by a third Party. It is
not possible for the Court to decide how much of the
area in the Pacific fronting the closing line of the
Gulf of Fonseca appertains to Honduras (on a
supposition made only for the purpose of arguing this
point) vis-à-vis El Salvador without knowing how much
of the same area appertains to Nicaragua.
8.9. Fifthly. the claim of Honduras to an area
of the Pacific outside the closing line
of the Gulf of Fonseca assumes that in some way there
is a frontage of the coastline of Honduras extending
through the waters and the mouth of the Gulf into
the Pacific. This assumption fails to take into account
the fact that the Islands of Conchagùita. Meanguera
and Meanguerita al1 belong to El Salvador while the
Island of Farallones belongs to Nicaragua. These
islands and the waters associated with them effectively
deprive Honduras of direct contact with the Pacific
through the mouth of the Gulf of Fonseca.
8.10. Finally. it is entirely premature for the
Court to proceed to a delimitation in the
Pacific having regard to the fact that theke has been
no negotiation between the Parties on the basis of 257
knowledge of the correct legal position in the area.
Such knowledge is an essential pre-condition of
meaningful and relevant negotiation. That is why the
question of the legal position of the maritime spaces
has been put to ,the Court. Only .if that question is
answered (contrary- to the contention of El Salvador)
in terms that cal1 for some maritime delimitation.
can relevant negotiations take place. There is no
reason to assume that such negotiations, if they take
place upon a correct juridical footing, will fail;
but it is only if they do fail that there will be
any reason, if the Parties then so agree. for the
Court to enter into the question of delimitation.
II. The Riatitsof Honduras beyond the Gulf of Fonseca
8.11. The next section of the Memorial of Honduras
is entitled "Les droits d'accès du Honduras.
en tant qu'Etat cdtier. aux eaux de la haute mer et
par consequent a ses propres eaux. territoriales. et
zone économique exclusive au-delà de la ligne de
fermeture du golfe".
8.12. The Government of El Salvador has not
reproduced this heading as the heading of
the present section of its Counter Memorial because
it obviously cannot subscribe to the assumptions and
chain of reasoning implicit in the heading used by
Honduras. There is absolutely no self-evident
connection between. on the one 'hand. the admitted
rights of Honduras as a coastal State within the Gulf
of Fonseca having a right of access to the high seas
as acknowledged in the 1917 Judgement and. on the
other hand. any claim by Honduras to a territorial sea and exclusive economic zone beyond the closing
line of the Gulf - a line which. it should be said,
is merely a "closing" line and is not in any legal.
. sense itself a baseline for the construction of further
maritime claims in the Pacific. The use of the words
"par consequent" in the heading in the Memorial of
Honduras does not by itself establish the connection
and. as will be seen, the substance of the argument
in the Memorial of Honduras does not do so either.
8.13. The Goveqnment of El Salvador notes. that
the Government of Honduras cites the Decision
of 1917 and rests certain propositions of law thereon
(3)' The. Government of El Salvador is glad that
reliance upon. and therefore acceptance of, this
Decision of 1917 is a feature common to the cases
of both sides. This will certainly simplify the task
of the Court in the present case.
8.14. The Government of El Salvador notes the
interpretation which the Government of
Honduras has put upon the 1917 Judgement to the effect
that rights of maritime inspection possessed within
the Gulf of Fonseca by El Salvador and Nicaragua do
not operate as against Honduras and that Honduras
has always traversed the waters of the Gulf of Fonseca
as of right (4).
8.15. The Government of El Salvador likewise notes
3. Memorial of Honduras: p. 711
4. Ibid.. and confirms the statement made in the next
paragraph of the Memorial of Honduras (5) that "en
pratique, le Honduras n'a eu à faire face à aucune
tentative de la part d'El Salvador de restreindre
son acces à la haute mer au-delà du golfe". The
Government of El Salvador has never made any such
attempt because it has always regarded Honduras as
possessing. within those parts of the Gulf of Fonseca
lying outside the three-mile belt of littoral waters
in which El Salvador, Honduras and Nicaragua each
possess exclusive rights. a right as a CO-owner which
undoubtedly includes the right to free navigation
(6)'
8.16. Likewise the Government of El Salvador agrees
with the Government of Honduras that the
"nouveau developpements du droit de la mer refletes
dans la cbnvention du droit de la mer de 1982" (7)
have not deprived Honduras of any of its rights in
the Gu1f.
8.17. But the Government of El Salvador cannot
5. Memorial of Honduras: p. 712.
6. The Government of El Salvador cannot under-
-stand the relevance or significance of
the concluding phrases of that paragraph
of the Memorial of Honduras. in which the
Government of Honduras adds: "ni m@me de
soumettre à aucun regime de passage innocent
le transit des navires honduriens par 1 'em-
-bouchure du golfe ... .ce qu'il pourrait
se passer si El Salvador considerait ces
eaux comme faisante partie de ses eaux
territoriales".
Memorial of Honduras: p. 712. accept the correctness of the assertion
in the Memorial of Honduras (8) , following on the
statement that "Honduras a suppose. au cours des
longues negociations conduisant a la Convention de
1982. qu'il allait jouir d'une zone contiguë. d'une
zone économique et d'un plateau continental sur sa
côte Pacifique". that "rien n'a éte dit pendant ces
negociations qui impliquerait une conclusion
contraire". In fact the opposite is true, as is shown
by the passage from the statement of the representative
of El Salvador. Dr. Galindo Pohl, in .the Second
Committee of UNCLOS. on 14 July 1974 quoted in the
Memorial of El Salvador from Paragraph 55 of the
Summary Records of the Second ~ommittee ' of UNCLOS
III
"On whatever theory the delineation of either the
territorial waters or interna1 waters was based,
Honduras would be deprived of access to the line of
entry to the Gulf" (emphasis added).
8.18. There then follows a substantial passage
in the Memorial of Honduras arguing that
the new developments in the Law of the Sea could not
adversely have affected such vested rights as Honduras
might already have enjoyéd to access to the Pacific
The Government of El Salvador does not disagree
(10)'
8. Memorial of Honduras: p. 712.
9. The reference for this citation was erro-
-neously printed as UNCLOS Records, vol.
III; it should have been: UNCLOS Records,
vol. II.'p. 108.
10. Memorial of Honduras: pp..713-714.with this. The right of Honduras to free passage to
the Pacific has never been questioned by El Salvador
and remains unquestioned.
8.19. However, what next follows in the Memorial
of Honduras cannot be accepted by El Salvador
and. indeed, is vigorously contested. At this point
(11) Honduras makes an assertion that goes to the
heart of the disagreement between the Parties in this
case. Honduras seeks to convert its acknowledged right
of passage to the Pacific through the Gulf of Fonseca
into "importants droits d'acces aux ressources
economiques tant des fonds marins et du sous-sol que
des eaux surjacentes, jusqu'a 200 milles de la ligne
de fermeture du golfe". It also claims in this area
exclusive rights to authorize the conduct of research.
to construct installations, to control pollution and.
above all, to safeguard its security.
8.20. On what grounds does Honduras rest this
claim to expanded rights?
8.21. First, Honduras invokes a pcovision in Decree
No. 102 .of 7 March 1950; in which the
Congress of Honduras claimed that:
"The submarine platform or continental and insular
shelf, and the waters whicfi cover. it. in both the
Atlantic and Pacific Oceans, at whatever depth it.
may be found and whatever its extent may be. forms
a part of the national territory"
(12) '
11. Memorial of Honduras: p. 714.
12. See ibid. and Annexes: p. 25.Thus. says Honduras,
"cies 1950, le Honduras a fait valoir ses droits à
un plateau continental dans l'ocan Pacifique, sans
protestation d'aucun Etat"
(13)'
:
8.22. As to this. El SdlVadOr makes the following
comment. The language of the Decree cited
is not as geographically extensive as the Memorial
of Honduras suggests. It is true that the Decree uses
the word "Pacific" . Howevey. the significance of that
name in the present context is limited in two
contro'lling respects.
8.23. First, the name "Pacific" itself ' is
traditionally used in. relation to Honduras
to describe the southern side of the country. just
as the name "Atlantic" is used fo describe the northern
side. This is cleariy shown by the terms of Decree
No. 103 of 7 March 1950 which. though referred to
in the Memorial of Honduras (14)' is not actually
quoted there. ,InArticle 1. the following appears:
"The following belong to Honduras:,
"(1) The land situated on the continent within its
territorial limits, and al1 the islands and keys in
the Pacific which have been considered Honduran ..."
It is quite beyond question that Honduras does not
have any "islands or keys in the Pacific". It claims
to have some islands within the Gulf of Fonseca;
nothing else on the southern side. So it is quite
évident that the name "Pacific" can only have been
13. . Memorial of Honduras: p. 714.
14. Ibid. fn. 1. to describe the islands which Honduras claims to have
wifhin the Gulf of Fonseca, n0t non-existent islands
in the Pacific beyond the closing line of the Gulf.
8.24., Secondly. it is to be observed that both
Decrees Nos. 102 and 103 use the words
"continental and insular shelf" (emphasis added).
The words "insular shelf" relate to the shelf generated
by islands. As a glance at the map will show. any
shelf' that Honduras may possess on its southern side
.is generated not by the mainland, but by the islands
to which it lays claim within the Gulf. There is.
therefore, no question of a HondureAan continental
shelf ,generated by islands lying in the Pacific
seawards of the closing line of the Gulf.
8.25. Thirdly, it is to be noted that in Decree
NO. 25 of 22 January 1951 (15) Honduras,
though maintaining in the preamble a reference to
the existence of a continental shelf in the Pacific.
does not attach any legally operative role to it.
This Decree (which was not even mentioned in the
. Memorial of Honduras), rather than the Decrees of
1950. ts the one that matters since it is the one
in which the Government of Honduras States the
underlying theory of the continental shelf and formally
declares that the sovereignity of on dur extends
"to the continental shelf of the national territory".
15. The text is in UN Leaislative Series. Law
and Reaulations on the Reaime of the Hiah
Vol. 1 (1951). p. 302. In Article 3 "the protection and supervision of the
State is hereby declared to extend in the Atlantic
-
Ocean.. ." over certain identified waters. But in the
substantive articles there is no reference to any
claim to the waqters of the Pacific.
*
8.26. AS to the question of protest. the absence
of reaction by El Salvador is explicable
for a number of reasons..
8.27. First. the language of the Decrees, as just
explained. does not substantively involve
an. assertion of rights in the Pacific Ocean beyond
the closing line of the Gulf.
8.28. Secondly. since the language of the Decrees
must be understood .in the sense just
described, there was no point in exacerbating relations
between El Salvador and' Honduras by unnecessary
protest.
8.29. Thirdly. there is no requirernent in
~nteknational Law that a protest should
be lodged against legislative provisions prior to
an attempt on the part of the legislating State to
implement them. No doubt, protest in such circumstances
@ is permissible and often occurs; but it is not
required (16)' One may recall in this connection the
words of Judge Read in the Norweaian Fisheries Case
(al-beituttered in a dissenting opinion, but in this
16. See MacGibbon: 30 British Yearbook of Inter-
national Law: P. 293 at pp. 299-305.respect hardly to be regarded as controversial ):
"Customary internatinal law is the generalization
of the practice of States. This cannot be established
by citing cases where coastal States have made
extensive claims, but have not maintained their claims
by the actual assertion of sovereignity over
'trespassing foreign ships. Such claims may be important
as sfarting points. which, if not challenged, may
ripen into historic title in the course of time..
"The 'only convincing evidence of State practice is
to be found in seizures. where the coastal State
asserts its sovereignity over the waters in question
by arresting a foreign ship and by maintaining its
position in the course of diplomatic negotiation and
international arbitration."
(17)
Though obviously expressed in a slighfly different
context, the relevance of Judge Read's views is clear:
mere paper assertions do not establish rights and
the absence of protest against them does not improve
the position of the claimant over the short term.
Honduras, it may be noted. does not assert that it
has ever taken any action in the period since 1950
to implement its claim to Pacific waters.
8.30. Apart from the 1950 Decree which, as
explained above, does not establish the
rights beyond the closing line of the Gulf that
Honduras now claims, the case, for Honduras appears
to rest on a petitio principi. "Il ne serait pas
suffisant non plus. afin de reconnaître les droits
du Honduras. de lui accorder de simples droits de
navigation jusqu'à l'Océan Pacifique" This
(18)'
17. I.C.J. Reports 1951 p. 116 at p. 191.
18. Mem0rial of Honduras: p. 714.assertion is not supported by reasoning. As expressed
in the Memorial of Honduras it amounts, in effect,
to the contention that ifstate A enjoys rights of
passage through the waters of State B. it is also
entitled to share wi.th State B the continental shelf
and exclusive economic zone laying seawards of 'the
coasts of State B. Such a proposition would no doubt
cause some surprise to Denmark and Norway. who. on
this approach. would at the very least find Sweden
seeking to -share in their continental shelf rights
in the North Sea; to Turkey and ~reece, who would
find Èulgaria. Rumania and the Soviet Union claiming
rights in the Aegean; to Egypt and Saudi Arabia. who
would find Israel and Jordan claiming rights in the
Red Sea; to Oman, Iran and Pakistan. who would find
Kuwait, Iraq and other States in the Persian Gulf
claiming rights in the Arabian Sea; to Indonesia,
who would find Malaysia and Singapore claiming rights
in the Indian Ocean; and to Belize and Honduras, who
would find Guatemala claiming rights .in the Gulf of
Honduras.
8.31. And. one might ask, why should the
application of the proposition stop at States
with a Coast? If the right of access to the sea carries
with it a claim to title in the continental shelf
and the exclusive economic zone of the waters to which
it has access, why should not land-locked States which
enjoy a right of access to the sea through thefr
neighbouring States also be vested with an entitlement
to a specific area of adjacent continental shelf and
exclusive economic zone? The' answer is, of course.
evident. Land-locked States possess no coastline
capable of generating maritime rights. Thus they haveno "proprietary" or "sovereign" rights. At best their
special position is recognised in Article 69 of the
United Nations Convention on the Law of the Sea of
1982. where they are given the right to participate
on an equitable basis in the exploitation of an
appropriate part of the surplus of the living resources
of the exclusive economic zones of coastal States
of the same sub-region.
8.32. In this, it may be noted. the position of
land-locked States is comparable to that
of geographically disadvantaged States (GDS). To them
also the United Nations Convention on the Law of the
sea of 1982 accords in Article 70 a right to
participate on an equitable basis in the exploitation
of an appropriate part of the surplus of the living
resources of the exclusive economic zone of coastal
States of the same sub-region or region. But nothing
is said about participation in the non-living
resources. And there is no suggestion that such States
should possess any "proprietary" or "sovereign" rights
in the exclusive economic zone.
8.33. There is value in considering further the'
relevance to the present case of the concept
of .the "geographically disadvantaged State". This
concept, a new one developed specifically in the
framework of the United Nations Convention on the
Law of the Sea of 1982, is defined in Article 70 (2)
thereof .as meaning:
"Coastal States, including States bordering enclosed
or semi-enclosed seas, whose geographical situation
makes them dependent upon the exploitation of the
living resources of the exclusive economic zones of
other States in the sub-region or region for adequatesupplies of fish for the nutritional purposes of their
populations or parts thereof. and coastal States which
can claim no exclusive economic zone of their own."
8.34. This definition. and in particular the
specific reference to "States bordering
enclosed or semi-enclosed seas", fits Honduras
precisely. Once it is shown that Honduras falls within
this definition. then the rights accorded to Honduras
as a geographically disadvantaged State are
exhaustively stated by the Convention of 1982. There'
remains no juridical- basis on which those rights can
be enlarged by the pretence that Honduras in some
way possesses a Coast fronting ont0 the Pacific and
capable of generating for Honduras its own entitlement
to continental shelf and exclusive economic zone.
The argument advanced by Honduras, however, is to
al1 intents and purposes that the nature of the
geographical disadvantage it suffers is of a kind
to entitle it to some privilege greater than that
of other geographically disadvantaged States. namely.
to entitle it actually to claim coastal State ri9ht.S
over waters appurtenant not to itself but to El
Salvador and Nicaragua. For such an argument. Honduras
produces no support.
III. The Claim of Honduras to a Base-Line com~risin~
a Seament of the Closina Line Across the Mouth of
the Gulf
8.35. The Memorial of Honduras (lg>, followin~
19. ' Memorial of Honduras: p. 715. the section referred to above. begins a
section developing the argument that, as a coastal
State, it is entitled to a base-line comprising a
segment of the closing line across the mouth of the
Gulf..El Salvador disputes this contention.
8.36. First, the contention is, on its face.
inherently self-contradictory and contrary
to principle. If, as Honduras contends, Honduras is
a coastal State, then the base-line from which its
entitlement to maritime areas must be measured is
determined by the base-1ine provisions of the
Convention of 1982. These appear in Articles 5-13
and cover a specified diversity of situations: Article
5 States the normal rule - the base-line is the low-
-water line "along the coast": Article 6 deals with
reefs; Article 7 covers deeply indented coasts.
frin-ging islands. deltas and other cases where the
a
coast is unstable; Article 8 deals with the status
of interna1 waters of a single State; Article 9 covers
the mouths of rivers; Article 10 covers bays, the
coasts of which belong to a single State; while
Articles 11. 12 & 13 deal respectively with ports,
roadsteads and low-tide elevations. None of these
provisions gives any support to the argument of
Honduras that it can claim a base-line at the closing
line of the Gulf. lying seaward of islands belonging
to El Salvador which. together with their associated
waters, completely screen Honduras from the Pacific.
8.37. The exhaustive character of these rules
relatin~ to baselines is indicated by Article
14 which provides that "the coastal Stat-emay determine
base-lihes in turn by any of the methods provoed for in the foregoing articles to suit different
conditions". The Article impliedly excludes recourse
to any other method of determining base-lines. Nor
has Honduras produced any reason to support any
suggestion that these base-line rules are not
applicable here.
8.38. The second principal reason why El ~ilvador
disputes the argument of Honduras is that
the individual reasons actually given in support of
the case of Honduras are in themselves unsound.
8.39. The opening statement in the argument of
. .Honduras is that."Il parait y avoir un accord
entre les Parties sur le fait que la ligne de fermeture
de 1'embouchure du golfe constitue la 1igne de base"
In truth there is no such agreement.
(20) '
8.40. In support of its argument that there is
such an agreement Honduras refers to the
proposals made by El Salvador in May 1975 This
(21).
reference is, first. inadmissible; and. secondly.
it does not support the thesis of Honduras.
8.41. First. the reference is inadmissible because
it relates to a proposa1 advanced in the
course of negotiations between the two sides. As
already stated. the proposal was part of a package.
It was not accepted. It must. therefore. drop out
20. Memorial of Honduras: p. 715.
21. ~emorial of Honduras: Annexes: pp. 899-906.of consideration for al1 purposes of the present
litigation
(22).
8.42. Secondly, the reference does not support
the thesis of Honduras. The fact that El
Salvador invited Honduras to--join in declaring that
the Gulf of Fonseca was an historic bay and that its
waters are interna1 waters does not convert the
(23)
closing line -of the bay into a base-line cornmon to
both States for the purpose of generating and measuring
entitlement to Pacific ocean areas.
8.43. Nor does the proposa1 which followed .(24)
regarding development seaward of the closing
line by common agreement c8nvert the closing line
into a. base-line in the technical sense. It is
important to observe that the area within which El
Salvador was offering to share with ond du rhes
benefit of its rights in the Pacific was not precisely
defined. The proposal. as translated in the Annexes
to the Memorial of Honduras (25), speaks of an area
"qui -est compris à 1'interieur des lignes qui sont
duacGolfedesdepoFonseca,ortconformementbouaux règlesntrde
l'equidistance, jusqu'à une distance de 200 miles
maritimes dans l'Ocean Pacifique".
It is not clear from this where those "lines of
22. Counter Memorial of El Salvador: Paragraphs
7.57.. pp. 247-248. & 8.5.. P. 255.
23. Memorial of Honduras: Annexes: p. 901.
24. Ibid. pp. 902-903.
25. Ibid.: p. 903. .equidistance".were intended,to run.
8.44. In the absence of any objectively valid
legal basis on which to claim a base-line
at the mouth of the Gulf of Fonseca, the NeIIIorial
of Honduras makes a quantum leap when it suggests
(26 )'that "~e question devient donc de savoir à quel
segment de ligne de base El salvador a droit et, Par
voie de consequence. à quel point sur la ligne de
base commence le segment hondurien". If El Salvador ,
made any concession to Honduras for the purpose of
negotiation in May 1985, it .vas not on the basis that
Honduras could then claim that the closing line of
the Gulf was a base-line to be divided between El
Salvador and Honduras. Before there caribe any question
of determining the segment of the base-line to which
Honduras may be entitled there .is the prior question
of deciding whether Honduras is entitled to anv share
of the Pacific waters. This question is what iS now
before the Court - and only this question. The
identification of any Hondurefian baseline at the mouth
of the Gulf is a matter of delimitation which. for
reasons already given. is outside the jurisdiction
of the Court. A
8.45. One point, however. bears repetition.
Honduras asserts that:
(27)
"La Chambre n'est pas concernee par la determination
de la totalite du segment hondurien. La situation
de son point terminal 21 l'Est. etant evidemment A
26. Memorial of Honduras: p. 715
27. Ibid.. negocier entre-..el Honduras et 1e Nicaragua. ne re'ntre
pas dans la [email protected] la Chambre."
El Salvador agrees that any delimitation between
Honduras and Nicaragua is not a matter within the
competence of the Chamber.. It is precisely for that
reason that, even if Honduras were able to establish
the existence of rights in the maritime areas seawards
of the ~uif closing line, that would not enable the
Chamber to delimit the boundary between the respective
areas of El Salvador and Honduras. Any such
delimitation would require the application by the
Chamber of equitable principles. These could not,
in this region. be applied as between El Salvador
and Honduras without the chamber at the same time
having some knowledge of the maritime area to which
Honduras would be entitled as against Nicaragua. In
the absence of such knowledge. either Ci) the Chamber
would be placed in the position of accordin6 Honduras
either a too large or a too small maritime area or
(ii) it would be compelled to reach some conclusions
regarding the rights inter se of Honduras and Nicaragua
which could prejudice the position of Nicaragua in
a future delimitation between those two countries.
In any event such a delimitation could not take place
within the scope of, the present proceedings since
the jurisdiction of the Chamber extends only to the
determination of the juridical Status of the maritime
spaces.
IV. The Confusion between Co-ownership of the Waters
of the Gulf of Fonseca and the Existence of a Common
Base-Line to the Pacific
8.46. The Memorial of Honduras next seeks to argue that it cannot be consistent with the thesis
of El Salvador (that the waters of the Gulf of Fonseca
are owned in comm\' by the,three riparians) "de nier
au Honduras tout titre a ces eaux" This argument
<zs> -~
is misconceived and unnecessary. El Salvador does
not deny Honduras any title to the waters within the
Gulf of Fonseca. What El Salvador .does deny is the
contention of Honduras that Honduras is entitled to
extend its undivided share in the waters within the
Gulf to a divided share in the waters outside the Gulf.
8.47. As can be seen from a close reading of the
Memorial of Honduras at this critical point.
that plea.ding is entirely devoid of any argument to
..
support i-ts contention that Honduras is entitled to
a specific delimited portion of the Pacific seawards ,
of the closing line of the Gulf. ~hus the assertion
that Honduras has an undivided share in the ,waters
. . within the Gulf is followed immediately. and without
argued development. by the proposition that "Le
.. probleme devient celui d'accommoder le concept de
"Communaute d' interets". applicable dans 1es '.eaux
du golfe. A la necessite pour chaque Etat riverain
.. d'avoir une ligne de base exclusive.pour la projection
dans 1 'Ocean Pacifique de ses propres espaces
maritimes. mer territoriale. zone contiguë et zone
economique exclusive" No explanation is offered
(29) '
1 of how one moves from ,the concept of common ownership
within the Gulf .to "la necessite pour chaque Etat
28. Memorial of Honduras: p. 716.
29. Ibid..riverain d'avoir une ligne de base exclusive" upon
which to construct a claim to waters outside the Gulf.
Honduras simpl y.assumes that the basic and controlling
doctrine that only coasts generate ' maritime
entitlements has in this region been replaced by the
concept that undivided ownership of waters generates
a divided interest to adjacent oceanic areas -
notwithstanding the impact of theclaims of coastal
States.
8.48. To assert dogmatically. as does the Memorial
of Honduras that "La solution a ce
(30)'
probleme ne peut se trouver dans la negation a l'un
des Etats riverains. le Honduras ("riverain". it should
be noted. only in relation to the Gulf. not the
Pacificl. de ses droits essentiels d'Etat c8tierw
but that "Elle doit se trouver dans la determination
du point termina1 de la ligné de base salvadorienne.
sur la 1igne de 4fermeture" is simply to take as the
starting point of the argument the very conclusion
that has to be established. The argument of Honduras
is thus manifestly defective in its most fundamental
aspect .
V. The Irrelevance of the Delimitation Argument
\
8.49. Section III. which constitutes the remainder
of Chapter XX of the Memorial of Honduras,
is entitled "La ligne de délimitation entre El Salvador
et le Honduras qui doit. en droit, produire un resultat
30. Memorial of Honduras: p. 716. equitable dans la determination de leurs zones
maritimes respectives au-dela du golfe". This Section
develops in detail the manner in which Honduras
maintains that the maritime area which it claims in
the Pacific should be divided from El Salvador's
oceanic entitlement.
8.50. El Salvador absolutely refuses to be seduced
into this discussion. It has already given
ample reasons why the Chamber does not have
jurisdiction to proceed to delimitation in respect
of the maritime areas to which Honduras has not yet
even established an entitlement and to which. in the
submission of El Salvador, Honduras has no entitlement.
Discussion of delimitation in respect of any such
area is entirely premature.
6.51. No doubt in some cases that come before
the Court it would be imprudent for a Party
to decline to respond to an argument advanced by its
opponent on the ground that that argument makes
assumptions which the first party does not share and
accordingly relates to points that the first Party
considers cannot be in issue. However. the preSent
case is not such a one. Here. the very reverse is
true. It would be imprudent of El Salvador. even for
the sake of argument. to appear to suggest acceptance
of the Hondurefian distortion of Question II of the
special Agreement and the Hondurefian exaggeration
of its maritime claims by responding to the substance
of the arguments on delimintation. In consequence,
El salvador will not deal with "Le Droit Applicable"
(sub-section A of Section III) nor with "Les acteurs
Pertinents" (Sub-Section B of Section III) Save inone respect, namely where the arguments of Honduras
have an incidental bearing upon the basic contention
of El Salvador that only coasts generate maritime
entitlements and that the only coasts relevant to
delimitation in the area embracing the ocean seaward
of the closing line of the Gulf of Fonseca are those
of El Salvador and 'Nicaragua. This said, it is hardly
necessary for El Salvador to add the forma1 reservation
that its silence on questions of delimitation should
not be construed as in any way amounting to an
admission of the correctness of al1 or any part of
the arguments of Honduras on those issues.
VI. camments on references made by Honduras to the
coasts of the Ri~arian States of the Gulf of Fonseca
8.52. It wi11 be convenient to. begin these
comments by recalling the decisions of the
International Court of Justice which so forcefully
express the dependence of maritime areas upon the
possesç!on of appropriate coastlines.
8.53. The series begins with the following passage
in the Anglo-Norwegian Fisheries Case ' -
(31)'
"Among these considerations. some reference must be
made to the close dependence of the territorial sea
upon the land domain. It is the land which confers
upon the coastal State a right to the waters off it~
coasts. It follows that whii? such a State must be
allowed the latitude necessary in order to be able
to adapt its delimitation to practical needs and local
requirements, the drawing of base-lines must not depart
to any appreciable extent from the general direction
31. I.C.J. Reports 1951 p.116 at p. 133. of the coasi.
"Another fundamen'tal consideration. OS particular
importance in this case. is the more or less close
relationship existing between certain sea areas and
the land formations which divide or surround them.
The real question raised in the choice of base-lines
is in effect whether certain sea areas lying within
these lines are sufficiently closely linked to the
land domain to be subject to the regime of interna1
waters. This idea. which is at the basis of the
determination of the rules relating to bays, should
be liberally applied in the case of a Coast. the
geographical configuration of which is as unusual
as that of Norway."
8.54. The concept was then specifical 1y applied
to the continental shelf in ti;e North Sea
Cases (32>.
"The doctrine of the continental shelf is a recent
-instance of encroachment on maritime expanses which,'
during the greater part of history,, appertained to
no-one. The contiguous zone and the cmtinental shelf
are in this respect concepts of the same Ykind. In
both instances the principle is applied that the land
dominates the sea; it is consequently necessary to
examine close1y the geographical configuratidn of
the coastlines of the countries whose continental
shelves are to be delimited. This is one of the reasons
why the Court does not consider chat 'markedly
pronounced configurations can be ignored; for, since
the land is the legal source of the power which a
State may exercise over territorial extensions to
seaward. it must first be clearly established what
features do in fact constitute such extensions. Above
al1 this is the.case when what is involved is no longer
areas of sea. such as the contiguous zone. but
stretches of submerged land; for the legal regime
. of the continental shelf is that of a soi1 and a
-. subsoil. two words evocative of the land and not of
the sea."
32. I.C.J. Reports 1969 P. 4 at P. 51. 8.55. The prd-iple was restated in the Aeaean
Sea Case (33):
,,
.... . a dispute regarding entitlement to and
delimitation of areas of continental shelf tends by
its very nature to be one relating 'to.tepritorial
status. The reason is that legally a coastal State's
rights over the continental shelf are both appurtenant
to and directly derived from the State's sovereignity
over the territory abutting on that continental shelf.
This emerges clearly from.the emphasis placed by the
Court in the North Sea Continental Shelf cases on
"natural prolongation" of the land as a criterion
for determining the extent of a COaStal State's
entitlement to continental shelf as against other
. States abutting on.the same continental shelf (I.C.J.
ReDOrtS 1969 pp.. 31 et sea. ); and this criterion,
the Court notes. has been invoked by both Greece and
Turkey during t'heir negotiations c0ncerning , the
substance of the present dispute. As the. Court
explained in the above-mentioned cases. the continental
shelf is a legal concept in which "the principle is
applied that the ,land dominates the ses" (I.C.J.
Reports 1969 p.: 51. para. 96); and it is solelyby
virtue of the coastal State'S sovereignity over the
lad. that rights of exploration and exploitation in
the continental shelf can attach to it. ipso iure,
under international law. In short.. continental shelf
rights are legally both an emanation from and an
automatic adjunct of the territorial sovereignity
of the coastal State."
\
8.56. Once again the point was made in the Tunisia/
/Libva Continental Shelf Case (34):
"It should first be recalled that exclusive rights
over subma'rine areas belong to the coastal State.
The geographic correlation between coast and submerged
areas off the coast is the basis of the coastal State's
legal title. As the Court explained in the North Sea
Continental Shelf cases the continental shelf is a
33. I.C.J. Reports 1978 p. 3. at p. 36.
34. I.C.J. Reports 1982 p. 18 at p. 61. legal concept in 'which "the principle is applied that
the land dominates the sea" (I.C.J. ReDOrtS 1969,
P. 51. para. 96). In-the-Aeqean Sea Continental Shelf
case, the Court emphasised that:
"it is solely by virtue of the coastal State's
sovereignity over the land that rights of
exploration and exploitation in the continental
shelf can attach to it. ipso iure, under
international law. In short, continental shelf
rights are legally both an emanation from and
an automatic adjunct of the territorial
sovereignity of the coastal State." (I.C.J.
ReDOrtS 1978, p. 36, para. 86.)
"As has been explained in connection with the concept
of natural prolongation. the coast of the territory
of the State is the decisive factor for title to
submarine areas adjacent to it. Adjacency of the
sea-bed to the territory of the coastal State has
status of the submerged areas. as distinct from theiral
delimitation, without regard to the various elements
whieh have become significant for the extension of
these areas in the process of the evolution of the
rules of international law.
"74. The coast of each of the Parties, therefore,
constitutes the starting line from which one has to
set out in order to ascertain how far the submarine
areas appertaining to each of them extend in a seaward
direction, as well as in relation to neighbouring
States situated either in an adjacent or opposite
position."
8.57. Lastly. reference .may be made to the
restatement of the point in the Libva/Malta
Continental Shelf Case (35):
"The capacity to engender continental shelf rights
derives not from the landmass. but from sovereignity
over the landmass; and it is by means of the maritime
35. I.C.J. Reports 1985 p. 13 at p. 41. front of this landmass. in other words by its coastal '
opening, that this territorial sovereignity brings
its continental . shelf rights into effect. What
distinguishes a coastal State with continental shelf
rights from a landlocked State which has 'none. is
certainly not the landmass. which both possess. but
the existence of a maritime front in one State and
its absence in the other. The juridical link between
the State's territorial sovereignity and its rights
to certain adjacent maritime expanses is established
by means of its coast. The concept of adjacency
measured by distance is based entirely on that of
the coastline, and not on that of the landmass."
8.58. The first context in which Honduras refers
to the character of the coasts of the
riparian States of the Gulf of Fonseca is in a
sub-Section entitled: "1. La configuration geographique
du golfe lui-méme et ses relations avec les cotes
des Parties en géneral" (36).
8.59. This Sub-Section begins with a statement
of The ratios of the respective lengths
of the coasts of the riparians one to another based
upon lines of "direction générale". This is a matter
on which El Salvador need make no comment at present.
8.60. However. the point from which El Salvador
must dissent in this Sub-Section is the
somewhat disingenuous observation that "Neanmoins.
en raison de l'extreme concavité du golfe, "la façade
côtiere" du Honduras sur l'ocean Pacifique est
necessairement limitee" (37)' The seeming modesty
36. Memorial of Honduras: p. 719.
37. Memorial of Honduras: P. 720. of this statement' may beguile the reader into the
belief that it contains some element of truth. It
scarcely does.
'8.61. If, as El Salvador firmly believes to.be
correct. importance is to be attached to
coasts and their effect (an assumption which El
Salvador is glad to note that Honduras evidently
shares), then importance must be attached to ail
relevant coasts. only to relevant coasts, and also
to a, not conceptual coasts.
8.62. Thus, in relation to the pretence of Honduras
that it has any. albeit limited, "frontage"
ont0 the Pacific, it is necessary to make the following
observations:
(i> The. "toast" which according to Honduras
\
constitutes this frontage consists not ,of mainland
but; to a considerable extent. of islands which belong
to El Salvador.
(ii) These islands, and their effect, cannot be
disregarded by Honduras in favour of the mai~.and
lying behind them or of some notional coastal front.
(iii) The islands of EI saivador lie between Honduras
and the Pacific as does one group of smali Nicaraguan
islands. Farallones de Cosigüina.
(iv) The islands of El Salvador trend in a North-
-West to South-East direction that parallels the
closing line of the 'Gulf. Taken together with the
Nicaraguan group of Farallones and the three nautical
miles of "exclusive" waters which adhere to each of
them. they constitute a screen or barrier which both
in geographical. and legal terms obscures, or cutsoff from the Pacific, the COaStS of. Honduras within
the ~ulf.
8.63. It is possible that the statement made by
Honduras regarding its alleged, but "limited"
"frontage" to the ~acific was also intended to convey
the suggestion that the whole of the coastline of'
Honduras on the Gulf of Fonseca (as reflected in the
larger ratio of coastline claimed for Honduras) 1
"fronted" ont0 the Pacific. Any such suggestion would,
almost self-evidently, be incorrect. In' order to
identify that part of the coast of Honduras which
even faces the mouth of the Gulf of Fonseca, despite
the screening effect of the intervening islands of
,
El Salvador.,one must project.!-north-eastward towards
the coast of Honduras the lines of general direction
of the coastlines of, on the one side, El Salvador
from Punta Amapala to Punta Chiquirin and of, on the
other, of Nicaragua from Punta ~osigüina to Punta
El Rosario. Once this is done, it can readily be seen
that not even a half of the coastline of Honduras
in the Gulf can be said to face the islands of El
Salvador and Nicaragua which lie in the mouth of the -
Gulf between Honduras and the.Paciflc.
8.64. It -is not necessary, within the limited
task which El Salvador has accepted of
commenting upon the references which Honduras has
made to the capacity of the coasts, of Honduras to
generate marit-ime rights for Honduras in the Pacific.
for El Salvador to comment upon the Sub-Section of
the Memorial of Honduras entitled: "2. Les longeurs
relatives des c6tes d'El Salvador et de Honduras 284
.
respectivement" This is a matter which is
(38)'
pertinent only to theissue of delimitati?n - an issue
which El Salvador maintains is not before the chamber.
El Salvador does no more in relation to this Sub--
-Section -than recall the 'observations which it has
previously made regarding ' the inescapable interest.
that Nicaragua would have in any delimitation of
mar'itimebousdaries within the ~acific.
8.65. So the ~ub-section of the Memorial 'of
Honduras to which El Salvador should now
pass is that entitled "3. La pertinence des cBtes
dans le golfe A une delimitation de zones maritimes
au-dela du golfe" (39>. d,gain, it needs to be said
at the outset that El salvador embarks upon comment
on this section not because of its relevance to
delimitation but only because it has some bearing
on the question now before. the Chamber. namely. the
legal status of the maritime spaces.
8.66. El Salvador begins by accepting, indeed
adopting, the f irst of the two propositions
which Honduras draws from the 1969 Judgement of the
International Court of ~ustice in 'theNorth Sea cases.
El Salvador entirely agrees that the "terre domine
la mer" and it agrees also with Che reference to the
fundamental role of "la configuration geographique
des cetes". ~l Salvador does this in relation to the
relevance of these observations to the status of
38. Mernorialof Honduras: P. 720.
39. Memorial of Honduras: P. 723.maritime areas, not their delimitation. and hence
does not need to comment on their applicability to
questions of delimitation.
8.67. It remains. then, for El Salvador to comment
on the pertinence to the task of.the Chamber
of the various judicial or arbitral decisions mentioned
by Honduras.
8.68. First, in comparing the situation ïn the
North Sea Cases with the present case (40),
El Salvador notes that .Bonduras admits that the
geographical position of the Federal Republic of
Germany "n'était pas aussi extreme que celle du
Honduras'' In fact the position of the Federal
(41)'
Republic of Germany was markedly different from that
of Honduras. As can be seen from the sketch map
included within the judgement (42) and also reproduced
here in this Counter Memorial, the Coast of the Federal
Republic of Germany faced directly ont0 the North
Sea over a distance of some 165 miles. It was not
confronted by a narrow opening to the North Sea no
wider than less than half of its coastal length. There
were no islands belonging to the Netherlands or Denmark
lying between the Federal republic. of GermanY and
the-North Sea. EVen on the approach initially adopted
by the Netherlands and Denmark, the Federal Republic
of Germany was acknowledged to have some entitlement
40. Memorial of Honduras: P. 723.
41. Ibid.: P. 724.
42. I.C.J. Reports 1969 p. 15. Map 3 Carie 3
(Sec paragraphs 5-9) ( Voir paragraphes 5-91
The niaps in the present Jrtdg~ricnt Les carres joiiires ait prési,ril ar>i.l ulrr
ivere prepared on the basis of docrt- <'ré irablies &apr?s les docrtnaiirs
merrrs sirbi~iirred ro the Courr by rlie souniisd la Cordrpur les Parrirs el onr
pour sert1obier d'ill«strcgrophiqrw-
Parries, aod their sale prrrpose N 10
provide a ~,isrtal illr~srrarion of rlie merir les piirogiophes dt I'orri'rqui
paragraphs of rlie Jrrdgnie~rl which s'y rifircnf.
refer 10 111em. to continental shelf in the North Sea. The only
CIuestioh was one of quantity. That is not the case
here. By reason of - the geography of the Gu1f of
Fqnseca. Honduras has no entitlement at a11 to any
maritime zone in the Pacific Ocean.
8.69. The Memorial of Honduras next discusses
the UK/France Continental Shelf Case
(43)
(44)' Here, El Salvador feels bound to contradict
the statement made in the Memorial of Honduras (45)
that :
"les ïïes Anglo-Normandes faisàient ecran entre la
côte française et la partie centrale de la Manche
bien plus directement et plus complétement que les
pointes de Punta Amapala et Punta Cosiguina. dont
on pourrait dire qu'elles font écran entre le Honduras
et l'ocean Pacifique."
The comparison is erroneous in two basic respects.
First. one cannot compare the effect of the Channel
islands with the effect of the two headlands of Amapala
and Cosigüina. It is not these points that screen
the coast of Honduras from the Pacific. Rather. it
is the general configuration of the territories of
El Salvador and Nicaragua, closing in the Gulf of
Fonseca. .coupled with the Islands of Cosigüina.
Meanguera. Meanguerita and Farallones. that screens
the coast of Honduras fi-om the Pacific. If one is
comparing the effect of Punta Amapala and Punta
Cosigüina with anything. it must be not with the
-43. Memorial of Honduras: p: 724.
44. Most conveniently reported in 54 Inter-
national Law Reports p. 6.
45. Memorial of Honduras: P. 724.yns nZ II% ::c fticrrrisi+.iiit, .>n
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srij 3 Sc.! 9; Ai 3 i . r ! rr..Iw 6:: 12:; izr~;Channel Islands but with Cap de la Hague (the north-
-western point of the Cherbourg Peninsula) and with
Sillon de Talbert (the point which marks the north-
-western end of the Coast flanking the western side
of the Gulf of St. Malo). As c'an be seen from the
sketch map included here in this Counter Memorial.
there is absolutely no comparison between that -
situation and the situation at the opening of the
Gulf of Fonseca.
8.70. The Memorial of Honduras next invokes the
decision of a Chamber of the International
Court of Justice in the Gulf of Maine Case
(46) '
Honduras suggests:
"c'est la que la situation ggographique presente une
vraie analogie avec le Golfe de Fonseca parce que
la plupart du territoire terrestre des Etats-Unis.
et sa cBte pertinente, se trouvaient au fond du golfe."
However. one has only to look at the map included
within the judgement (47) and also reproduced in this
Counter Memorial showing the line adopted by the
Chamber to see how dissimilar is the Gulf of Maine
from the Gulf of Fonseca. The Gulf of Maine does not
in any way present the enclosed characteristic of
the Gulf of Fonseca. For one thing. the coasts of
the country which lies at the "back" of the Gulf of
Maine (the Unïted States of Amaerica) also extend
to the south-western poïnt of the Gulf at the locality
where it meets the Atlantic Ocean, namely. Cape Cod.
Thus. there is no question of the coasts of ttieUnited
46. MeIIIorialof Honduras: p. 725.
47. I.C.J. Reports 1984 at p. 346States being closed off from the outer ocean. For
another, the actual configuration of the Gulf of Maine
differs totally from that of the Gulf of Fonseca in
that the coast at the "back" (the coast of the State
of Maine) faces full out through the open Gulf to
the Atlantic Ocean. The coast is nOt cut off in any
way by inward curving promontories coincident with
the termini of the notional closin9 line; nor are
there intervening islands which belong to a different
State.
8.71. The remaining case referred to in the
Memorial of Honduras is the Guinea/Guinea-
-Bissau Case. Honduras has quoted from the
(48) ' (49)
Judgement 50) the lines which are underlined in the
text that follows:
"When in fact - as is the case here, if Sierra Leone
is taken into consideration -there are three adjacent
States along a concave coastline. the eauidistance
method has the other drawback of resultinçl in the
middle country beina enclaved by the other two and
thus pre~ented from extendina its maritime territory
as far seaward as international 1aw permits. .In the
present case. that is what would happen to Guinea.
which is situated between Guinea-Bissau and Sierra
Leone. Both the ecluidistance lines envisaged arrive
too soon at the parallel of latitude drawn from ,the
land bciundary between Guinea and Sierra Leone which
Guinea has unilaterally taken as its maritime
boundary. .,
Honduras asserts that (51):
48. Now reported in 77 International Law Reports
636.
49. Memorial of Honduras: p. 728.
50. From Paragraph 104 thereof.
51. Memorial of Honduras: p. 728. "Le même raisonnement semble exclure toute méthode
qui empêcherait le Honduras de pretendre à des zones
. . maritimes au-dela du golfe et jusqu'a la limite de
200 milles."
8.72. It is difficult to see how the reasoning
of the Tribunal of Arbitration in that case
can be transferred ,to the position of Honduras in
the present case. The two geographical situations
are quite different in both formation and scale. The
coast of Guinea-Bissau, taken along its general
direction from the 'seaward terminus of the 'land
frontier between Guinea-Bissau and Senegal in the,
north to the seaward terminus of the, land territory
between Guinea and Guinea-Bissau in the south. is
about 160 miles long. The coast of Guinea, taken from
the point just mentioned to the seaward terminus of
the land boundary between Guinea and Sierra Leone,
is about 170 miles long. The coast of Sierra Leone
is itself about 180 miles long. AS. can be seen from
the map reproduced .here in this Counter Memorial,
the element of concavity in the 'coast does not in
any degree prevent the coast of Guinea (the middle
country. analogous to Honduras) fr0m facing, fully
and without impediment into the ~tlantic Ocean over
a distance of 170 miles and thus being capable of
directly generating a substantial entitlement of
oceanic maritime areas. The only question in the case
was one of delimitation; and the lines from the Award
quoted by Honduras were directed only to identifying
the possibility that equidistance 1ines drawn as
between Guinea and Guinea-Bissau and Sierra Leone
respectively might enclave Guinea. But the fact that
the Tribunal might exclude the use of a certain method
of delimitation because .of its potentially enclaving 290
resu:t does not mean that the Chamber in the present
case is entitled so to reconstruct facts as to
:eliminate a situation in which the geographical
structure of the land mass simply does not accord
to the Coast's of Honduras a frontage to the Pacific
Ocean .
8.73. The analysis just presented of the four
cases cited by Honduras is, it is submitted,
sufficient to dispose of the "principes" which Honduras
, .
contends "ressortent de ces affaires" (52)' The
geographical circumstances of each of these cases
are radically different from those of the present
case. Horeover. there is nothing in them to suggest
that the reduction of the role of "proximity" in
relation to the process of delimitation (which is
the reason why Honduras refers to them) can have any
bearing on the establishment of an entitlement to
maritime areas in the absence of an appropriate
coastline. These cases are, therefore, quite irrelevant
to the present matter.
VII. Conclusions
8.74. In short, the Government of El Salvador
restates the principal conclusions reached in this
Chapter as follows:
(i) The jurisdiction of the Court does not extend
to the delimitation of a maritime boundary outside
the Gulf of Fonseca.
52. Memorial of Honduras: p. 729.(ii) Rights and jurisdiction over the waters and
submarine areas (including the natural resources
therein) of the Pacific Ocean in the region of the
Gulf of Fonseca are granted exclusively by the relevant
coasts of El Salvador and Nicaragua.
(iii) The rights of on du ratsin the Gulf of Fonseca
do not generate any rights of Honduras outside the
closing line of the Gulf of Fonseca. SUBMISSIONS
1. Delimitation of the Land Frontier
1. The Government of El Salvador ratifies the
petition to the Chamber of the International
Court of Justice contained in its Memorial that the 1
Chamber delimit the land frontier between El Salvador
and Honduras in the disputed sectors in accordance
with the line indicated in the Submissions contained
in the Memorial of El Salvador.
2. In addition to the arguments set out in
the Memorial of El Salvador. the Government
of El Salvador has proven:
(i) That the land boundaries defined by the Forma1
Title Deeds to the Commons of the indigenous
communities (which include the Royal Landholdings
within the.same jurisdictions> presented by El Salvador
are absolutely identical with the international
frontiers of the territory of each State.
(ii) That El Salvador has completely established
in. its Memorial and in this Counter Memorial that
the Forma1 Title Deeds to commons which support the
claims of El Salvador were executed by the Spanish '
Crown in accordance with al1 the necessary judicial
procedures and requirements and. ,consequently, these
Formal Title Deeds to Commons form the fundamental
basis of the uti ~ossidetis iuris in that they indicate
jurisdictionional boundaries, that is to say the
boundaries of (territoriesand settlements.
(iii) That Honduras has presented Title Deeds to
private proprietary interests which in no case either
wpermitted the exercise of. administrative control or
implied the exercise of acts of sovereignity.
(iv) That the majority of the Title Deeds presented
by Honduras relate to lands which are situated either
outside the disputed sectors or in sectors which have
already been delimited by the General Peace Treaty
of 1980.
II. The Juridical Status of the Islands
3. The Government of El Salvador ratifies the
petition to the Chamber of the International
Court of Justice contained in its Memorial in view
of the' fact that in Chapters V & VI of this Counter
Memorial it has rebutted the arguments contained in
the Memorial of Honduras.
4. In addition to the arg,ments set out in
the Memorial of El Salvador. the Government
of El Salvador has proven:
(i) That in 1804 none of the islands of the Gulf
of Fonseca was assigned to the Bishopric of Comayagua
and that, even when the "Alcaldia Mayor" of Tegucigalpa
was incorporated to the Intendency and GoVetmment
of Comayagua subsequently to 1821. neither this
"Alcaldla" nor the Bishopric of Comayagua ever
exercised either civil or ecclesiastical jurisdiction
over the Islands of the Gulf of Fonseca during the
O
colonial period and thus it was the colonial Province
of San Salvador, through San Miguel. that exercised
both civil and ecclesiastical jurisdiction over the
Islands of the Gulf of Fonseca.
(ii) That the colonial Province of Honduras. when
. . it was constituted. did not have any coast on the
Pacific ocean.
(ii ) That the "Reales Cedulas" (Royal Decrees) of
1563 and' 1564 left the Gulf of Fonseca within the
jurisdiction of the Captain-~eneial of Guatemala and,
more specifically; in the jurisdiction of San Miguel
in the colonial Province of San Salvador.
(iv) That when the Spanish Crown established
jurisdiction over islands. it did so by means of a
"Real Cedula" (as in the case of Islands of Guanajas
on the Atlantic coast of Honduras) and no such "Real
Cedula" was ever executed in favour of Honduras in
respect of the Islands of the Gulf of Fonseca.
III. The Juridical Status of the Maritime Spaces
5. The Government of El Salvador petitions
the Chamber of the International Court of
Justice that it determine the juridical status of
'themaritime spaces in the following manner:
(i) That, in view of the Principles of the Law of
the Sea. it apply within the Gulf of Fonseca the
juridical status established by the Decision of the
Centra1 American Court of Justice handed down on 9
March 1917.
(ii). That. in accordance with the Special Agreement
between El Salvador and Honduras. it decide that it
has no jurisdiction to delimit the waters of the Gulf
of Fonseca.
(iii) ~hat it decline to delimit the maritime spaces
a
outside the Gulf of Fonseca in the Pacific Ocean beyond
the closing line of the.Gulf on the grounds that its
jurisdiction -s limited to determining the juridicalstatus of these maritime spaces.
(iv) That it determine that the rights and the
jurisdiction over the waters and maritime spaces
(including the natural resources therein) of the
Pacific Ocean beyond the closing line of the Gulf
of Fonseca are exerciseable exclusively by.El Salvador
and Nicaragua on the grounds that such rights arise
from the relevant coasts which these two States have
on the Pacific Ocean.
In The Hague. 10 February 1989
FRANCfSCO ROBERT0 LIMA '
.
Agent of the Government of
El Salvador
Counter-memorial of the Republic of El Salvador