Separate opinion of Judge Torres-Bernárdez

SEPARATE OPINION OF JUDGE TORRES BERNARDEZ

1have voted for the operative part of the Judgment, except for sub-

paragraph 1, subparagraph 2 (i)and subparagraph 5 of operative para-
graph 431and subparagraph 2 of operative paragraph 432. Except with
respect to the attribution of sovereignty over the island of Meanguerita,
my negative votes concern questions relating to the interpretation of
Article2,paragraph 2, of the Special Agreement.
The considerations and observations included in the present opinion
have athreefold purpose. They intend to convey the essentials of myposi-
tion on: (1)questions with respect to which, to my regret,as unable to
join the majority vote; (2) questions on which1have some reservations
notwithstanding my positive vote on the decision concerned as a whole;
and (3) main developments in the reasoning which 1 do not share com-

pletely or which wouldhave deserved, in my opinion, further elaboration.
After a brief introduction concerning the case as a whole, my considera-
tions and observations are presented under the mainheadings ofthe three
major aspects of the case, namely the "land boundary dispute", the
"island dispute" and the "maritime dispute".

The table of contentshus presents the following synopsi:

Paragraphs
INTRODUCTI O NECASE 1-7
1.THELAND BOUNDAR DISPUTE 8-55
A. Generalquestions 8-37

(a)The 1821utipossidetisjurisprinciasapplicablelaw 8-15

(b)The utipossidetis juprincipleand the ruleofevidence
inArticle26oftheGeneralTreatyofPeace 16-20
(c)The utipossidetisjuprincipleandthe effectivités 21-27
(d)The uti possidetis jprinciple and therirulosejidales
invokedbythe Parties 28-37
B. Specific observationson the frontier line defined by the
Judgmentinsomeofthedisputedlandsectors 38-55
(a)Thefirstsectorofthelandboundary(Tepangüisir) 40-47
(b)Thethird sectorofthe landboundav (Sazalapa/La Vir-
tud) 48-51
(c)Thefourth sectorofthe land boundary(Naguateriquel
Colomoncagua) 52-55 Paragraphs
56-177
II. THEISLAND DISPUTE
A. The question of the definition of the islands "in dispute".
The "non-existing dispute" objection submitted by Hon-
duras
B. The question ofthe "applicable law"

(a) The "historic title" invoked by ElSalvador
(b) The utipossidetis principle invoked by Honduras

(c) The "peaceful and continuous exercise of State author-
ity" invoked by ElSalvador
C. The legal situation of Meanguera and Meanguerita

(a) From the standpoint ofthe 1821utipossidetisjuris
(b) From thestandpoint of the conduct of the Parties subse-
quent to 1854
(i) Meanguera
(ii) Meanguerita

D. Overallconclusion
III. THEMARITIM DISPUTE

A. The régime ofthe Gulf of Fonseca and its "historic waters".
Entitlement to maritime spaces in the Pacific Ocean sea-
ward ofthe closing-line ofthe Gulf of Fonseca
B. The question of the competence of the Chamber to effect
maritime "delimitations". The plea of non-competence sub-
mitted by El Salvador."Mootness" ofthe issue

C. The question of the effects of the Judgment for the inter-
vening State631 DISPUTE (ELSALVADOR/HONDU(R SEPS.) PTORRES BERNARDEZ)

1. The present case isfundamentally a "State succession" case.The two
Parties inthe case, El Salvador and Honduras (as well as the intervening
State, Nicaragua), consider themselvessuccessorsof a single predecessor
State, namely Spain, as historically represented by the Spanish Crown
since the establishment of its rule in Central America, in the first part of
the 16th century, until 15 September 1821, the date when the former
"Spanish intendencies" of El Salvador and Honduras in the Captaincy-
General or Kingdom of Guatemala weresucceeded intheir respective ter-
ritories by ElSalvador and Hondurasas Stateswhich,together with Costa
Rica, Guatemala and Nicaragua, formedthe Federal Republic of Central
Arnerica until the dissolution of the Federation in 1839-1840.While inthe
Federation, El Salvador and Honduras were distinct federated States or
distinct members of that Federation.

2. The first "successorial event", namely the 1821 separation from
Spain, could be described today, following contemporary international
lawterminology,asa "decolonization". The second ''successorial event",
represented by the disintegration of the Federal Republic of Central
America, was clearly the "dissolution of a union of States". This "dissolu-
tion" was effectedwithout altering, in anymanner relevant for thepresent
case, the "territories" of the Republic of El Salvador and of the Republic
of Honduras asthey existed on 15September 1821.In other words,when
the Federation dissolved itself in 1839-1840,the Republic of El Salvador
and the Republic of Honduras were deemed tohave respectivelythe same
"territory", as well as the same "boundaries", as the former "Spanish
intendencies" of El Salvador and Honduras had had on 15 September

1821.
3. From the start, the first Constitutions of the Central American
Republics defined their respective "national territories" by a broad refer-
ence to the 1821utipossidetisjurisThis principle has been alsoinvokedat
international levelby Central American Republics,including the Parties
to the present case, as a principle applicable, following emancipation,
vis-à-visforeign Powersaswell asbetween themselves in solvingtheterri-
torial and boundary questions which began to emerge inthe middle ofthe
19thcentury. The utipossidetisjuricreated and formulated about 181Oby
the then newly independent Spanish-American Republics as a principle
governing inter-State relations was therefore already established when
El Salvador and Honduras separated from Spain in 1821,and well estab-
lished when in 1839-1840the Federal Republic of Central Arnerica was
dissolved. The fact that both Parties have at the current proceedings

invoked this utipossidetisjurias thefundamentalprinciple or norm to be
applied by the Chamber underlines further the fundamental "State suc-
cession" character of the present case, because that principle or nom
operates inthe relations between Spanish-American Republics inconnec-632 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

tion with or with respect to the "successorial events" represented by
their separation from Spain.

4. TheJudgment is,therefore, right to have taken dulyintoaccountthe
"State succession"dimension ofthe case. 1concur likewisewiththe Judg-
ment thatthe same overall characterization of the caseapplies not only to
its"land boundary" and "island" aspects butalso to its"maritime" aspect,
particularly sofaras the historic bay of the Gulf of Fonseca is concerned.
Within each of its aspects,however, the dispute as referred by the Parties
to the Chamber embraces several controversies which began to manifest
and establish themselves, i.e., to become "existing disputes", either pro-
gressivelyfrom thesecond half of the 19thcentury onwards (the disputed
land-boundary sectors and the island dispute), or at the end of that cen-
tury and the beginning of the 20th century(the régimeof the waters of the
Gulf of Fonseca) or only a fewyears ago asa result of developments inthe
law of the sea subsequent to the Truman Proclamation, the Geneva Con-
ventions and the negotiations leading to the conclusion of the Montego

BayConvention (themaritimespaces inthe Pacific Ocean seawards ofthe
closing line of the Gulf of Fonseca). During this whole period noms of
general international law applicable between the Parties evolved and the
Parties themselves held successive sets of negotiations and concluded
agreements or understandings on matters relating, interalia,to subjects of
litigation before the Chamber. Moreover, on some specific questions
before the Chamber, the Parties during the same period adopted concur-
rent or divergent lines of unilateral conduct which required also to be
borne in mind in the adjudication of the present case.

5. In other words, the clock did not stop on 15September 1821sofar as
thedevelopment of international lawand ofrelationsbetween the Repub-
lic of Honduras and the Republic of El Salvador is concerned. This has
occasionally had an impact on the 1821utipossidetisjuris situation that
the present Judgment, adopted in 1992,could not ignore, particularly

because of the definitions given in Articles 2 and 5of the Special Agree-
ment astothe subjectof the litigation and the applicable law.The determi-
nation, for example, of the legal situation of the maritime spaces outside
the Gulf of Fonseca has in itself little to do with the "successorial events"
which took place in 1821and 1839-1840.Theapplicable law provision of
the Special Agreement has taken care of the situation described to the
extent that it does not confine "the rules of international law applicable
between the Parties", general or particular, to rules governing the succes-
sion of States.
6. Thus, while, as 1have said, the case isfundamentally a State succes-
sion case, it is notclusivelya State succession case. Elements unrelated
to succession are alsopartand parce1ofthe case.TheJudgment couldnot,
therefore,deal only with the principles and elements relating to succes-
sion but had alsoto take account ofothers. The utipossidetisjuris receivesin the Judgment as a whole the attention and priority in applicationthat
the fundamentally successor State character of the case commands. But,
at the same time, the Judgment also applies other principles and rules
wheneverrequired bythe matter at issue. For example, theconduct ofthe
Parties subsequent to 1821istaken intoaccount bytheJudgment not only
as an element of confirmation or interpretation of the 1821utipossidetis
juris or in connection with the establishment of the effectivités alleged by
the Parties, but also with respect to the determination of anysituations of
"acquiescence" or "recognition" through an application oftheprincipleof
consent,or rather of implied consent by conduct,bindingthe Parties as it
would any other State.

7. It is to be regretted, however, that the Judgment has not provided a
stricter and deeper analysis of somepoints oflawrelevant to the ascertain-
ment, for example, of the existence of a given effectivité or of a situation
susceptible ofbeing qualified as "acquiescence". In thisrespect, itshould
have explored further the effects of agreed "status quos" contemporary
with the effectivitéor conduct concerned, as well as intertemporal law
issues in general. A few departures in certain "land-boundary sectors"
fromthe legal standards otherwise generally applied are also difficult to
understand. Much more to be faulted, because of its concrete conse-
quencesfor the adjudication, is,however, the inability of theJudgment in
the "island dispute" aspect of the case to distinguish, as it should, the
effects of an operation of the utipossidetisjuris principlefrom those con-
sequent uponthe application of adifferent principle orrule of law. Lastly,
1am in complete disagreement with the Judgment's interpretation of the
scope ofthe "island dispute" and ofthe "maritime dispute" referred to the
Chamber under Article 2,paragraph 2, of the Special Agreement.

A. General Questions

(a) The1821utipossidetis juris principleasapplicablelaw

8. The provision of the Special Agreement on the applicable law
(Art. 5) - common to theland, island and maritime aspects ofthe case -
totally excludes any exaequo etbonosolutions. The Parties have asked the
Chamber to render a decision according to "international law", namely a
dejure decision. In contrast with other well-known cases of boundary or
territorial disputes among Spanish-American Republics, the Parties to
the present case did not empower the Chamber, even subsidiarily, to634 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

decide thedispute or someaspectsof itin accordance with considerations
of mere "equity" goingbeyondthe infralegemequity inherent intheappli-
cation of the law. Neither did they provide in the Special Agreement for
territorial or other kinds of "compensation" in any hypothesis, as has
been the case incertain Spanish-American arbitrations. In thisrespect the
Chamber is placed by the Special Agreement in a situationrather similar
to the Chamber ofthe Court which dealt in 1986with the FrontierDispute
(BurkinaFaso/Republic of Mali)case. However, the Special Agreement of
thislattercaserestricted thescope ofthe "international law" to be applied
by providing that the settlement ofthedisputeshould bebased in particu-
lar on "respect for the principle of the intangibility of frontiers inherited
from colonization". Such a singling-out is alien to Article 5of the Special
Agreement of the present case. This Article refers, in the plural, to "the
rules of international law". The only limitation contained in Article 5 of

the Special Agreement is a ratione personae restriction, namely that the
rules of international law should be rules "applicable between the Par-
ties". Even the reference to "the provisions of the General Treaty of
Peace", by which Article 5of the Special Agreement ends, is qualified by
the words "where pertinent", leaving the appreciation of such pertinence
to the Chamber.

9. Thus, while under the Special Agreement the Chamber is not
allowed to apply "equity" or anyother subsidiary criterion,the Chamber
is certainly empowered by the Special Agreement to have recourse to the
rules of "international law" as a whole insofar as applicable between the
Parties. On the other hand, the Chamber did not depart from one stated
wishofboth Parties that, at least inthe caseofthedisputedland-boundary
sectors, the controversy be solved taking fully into account the utipossi-
detisjurisprinciple,qualified bythe Parties during the proceedings asthe
"fundamental" nom to be applied.There can be no doubtthat the Parties,

both of which recognized it as a principle of international law binding
them, expected the application by the Chamber of the utipossidetisjuris
principle to theirland boundary dispute.The Chamber didjust that, with-
out ignoring, either, the relevant conduct of the Parties since their inde-
pendence and its legal effects under principles of international law other
than that of utipossidetisjuris, which principles Article 5 of the Special
Agreement allows it also to apply.

10. But the mere fact of having concluded without difficulty as to the
applicability ofthe utipossidetisjuris to theland boundary disputedid not
solvethe different question of the "definition" of the utipossidetisjuris to
be applied. Should it be the utipossidetisjuris principle, as customarily
given by the Spanish-American Republics and recognized by interna-
tional jurisprudence and doctrine, or a kind of conventional, agreed uti
possidetisjuris formula, as in certain arbitrations? The question arose
because of the different explanations given by the Parties as to the rela-635 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

tionship between Article 5of the Special Agreement and Article 26 of the
General Treaty of Peace, and in particular because of the Salvadorian
"forma1title-deeds to commons" argument. Such a composite argument,
developed with particular force at the hearings, touchesindeed upon not
only the lawof evidencegoverninginternationaljudicial proceedings and
the Spanish historical lawin America asafactinthe case,but alsothe very
definition of the applicable utipossidetisjuris, the modus operandiof this
principle and its relationship with other principles and rules of interna-
tional law.
I1. One of the greatest merits of the Judgment is that it does give the
appropriate answer to the "formal title-deeds to commons" argument so
far as the definition of thetipossidetisjuris applicable to the case is con-
cerned. By doing so, the Judgment restored the meaning, contents and

purpose of the uti possidetis juris principle binding Spanish-American
Republics, including the Parties to the case, as it has been expressed in
frequently quoted passages of internationaljurisprudence and writings
of Spanish-American diplomats and jurists (see, for example, Alejandro
Alvarez, Le droit international américain,Paris, Pedone, 1910, p. 65;
L.A. Podesta Costa and JoséMaria Ruda, DerechoInternacionalPublico,
Buenos Aires, 1979,Vol. 1,p. 206).It follows that the Judgment is primar-
ily concerned with determining the boundary line between the Spanish
colonialadministrative entities established bythe Spanish Crown asatthe
critical date of 1821,interritories belongingthereafter tothe Republic of
Hondurasandto the Republic of ElSalvador respectively. Byvirtue ofthe
Spanish-Arnerican Republics' uti possidetisjuris principle the colonial
administrative boundaries of Spanish virreinatos,capitanias,intendencias
or provincias became international boundaries between neighbouring
Spanish-American Statesasfrom the verydate ofindependence. Thisalso
means that "possession" was notdefined in terms of effective possession
or occupationbut by reference to the former Spanish legislation as ascer-

tainable through the relevant Reales Cédulas,Providencias,Ordenanzas,
etc., or indirectly from Spanish colonial documents recording "colonial
effectivités",namely the exercise of territorial jurisdiction by Spanish
colonial authorities. It therefore confers preference on ''elderecho"(the
Spanish legislation)over "elhecho"(effective possession or occupation).
Thus the concept of "possession" embodied in the uti possidetis juris
principle ofthe Spanish-American Republics istheconcept ofthe right to
possess according to Spanish legislation ("title") and not a reflection of
factual situations of usurpation by former Spanish colonial authorities,
such as might have existed, or of the fact of occupation or control by this
or thatSpanish-American Republic following independence (the defacto
situations).This distinguishes the utipossidetisjuris from the Brazilian uti
possidetisor from the so-called utipossidetis defacto. The principle also
excludes reliance on principles concerning acquisition of territoriumnul-
liusor titlesjure belli.636 DISPUTE (ELSALVADOR/HONDU SEP.S)P.TORRES BERNARDEZ)

12. It follows fromthe above that the resurrection of limits of ancient
"formal title-deeds to commons" of former Indian communities cannot
be the object andpurpose of an exercise aiming at determining an utipos-
sidetisjurisboundary line between Spanish-American States. The docu-
ments described as "formal title-deeds to commons" by El Salvador

cannot be anything more than one element of evidence, among others, in
the process of ascertaining the ancient "colonial administrativebounda-
ries" whose determination constitutes the very object and purpose of uti
possidetis jurisas a principle of international law applicable between
Spanish-American Republics, including the Parties to the present case.
To proceed in this respect on any other basis would have amounted to a
redefinition ofutipossidetisjurissuch as may be realized solely by agree-
ment or conventional means. On the level of principle, the Judgment
made al1this plain. The "land boundary dispute" adjudicated by the
Chamber isan "international dispute" between the Republic of Honduras
and the Republic of El Salvador, not a dispute about the land limits of

Indian communities. The limits of lands belonging to former Indian com-
munities may or may not have constituted the origin or occasion of some
of the controversies before the Chamber, but the controversies about
those land limits can certainly not be identified or equated with the inter-
national dispute existing between the Republic of Honduras and the
Republicof El Salvadorregarding the delimitation oftheir common fron-
tier inthe disputedland sectors referred to the Chamber. It may be added,
asa general proposition, that theIbero-American Republics did not con-
sider the Indian population a factor in delimiting their boundaries
whether by direct settlement or by arbitration (see, for example, L.M. D.
Nelson, "The Arbitration of Boundary Disputes in Latin America",

NetherlandsInternational Law Review,XX, 1973,at pp. 278-279).

13. Lastly,1 wish to stress that to the extent that the need to reply to
arguments of the Parties or other considerations may occasionally have
given rise in the reasoning of the Judgment to answers which could be
read as implying, in one way or another, a departure from the meaning,
contents and purpose of the uti possidetis jurprinciple which governs
relations between Spanish-American Republics, the passages concerned
are not read by me in the same manner or do not reflect my personal
position as to the definition of the uti possidetis juriprinciple appli-

cable to the present case.1have been guided in the current proceedings,
so far as the uti possidetis juris concerned, exclusively by the defini-
tion of the principle customarily given by Spanish-American Repub-
lics. It follows from this caveat that, while acknowledging contempo-
rary developments of the uti possidetis jurprinciple within the realm
of general international law following decolonization of the African
continent, 1 have applied to the present case the Spanish-American
uti possidetis juris principle, both Parties being Spanish-AmericanRepublics and because of the wording of Article 5 of the Special Agree-
ment.
14. Ultimately, therefore, forthe present "land boundary dispute", the
object and purpose of any uti possidetis juris determination cannot be
other than to ascertainthe 1821administrative boundaries of the former
Spanish colonial intendenciasof El Salvador and of Honduras - admin-
istrative unitsintroduced in the Captaincy-General of Guatemala in 1786
- inthe land sectors in dispute between the Republic of El Salvador and
the Republic of Honduras, namely in the sectors referred to the Chamber
by virtue of Article 2,paragraph 1,ofthe Special Agreement (thezones or

sections not described in Article 16of the General Treatyof Peace).

15. The intendenciasor intendencias/provinciasof the former Spanish
Captaincy-General ofGuatemala,in whose respectiveterritoriesthe Cen-
tral Arnerican Republics were established in 1821,were themselves the
result of a "historical evolution" as underlined with reference to Hondu-
ras and Nicaragua inthefollowingpassage oftheArbitralAward made by
the King of Spain on 23 December 1906 :

"the Spanish provinces of Honduras and Nicaragua were gradually
developing by historical evolution in such a manner asto be finally
formed into two distinct administrations (intendencias) under the
Captaincy-General of Guatemala by virtue of the prescriptions of
the Royal Regulations of Provincial Intendants of New Spain of
1786,which were applied to Guatemala and under whose régime
they came as administered provinces till their emancipation from

Spain in 1821 " (United Nations, Reports of International Arbitral
Awards, Vol. XI, at p. 112).

The above Arbitral Award was found to be "valid and binding" on the
Republic of Hondurasand the Republic of Nicaragua bythe Judgment of
the International Court of Justice of 18 November 1960(I.C.J. Reports
1960, pp. 192 ff.)as between these two Republics and executed by them
accordingly. Inthat Arbitral Award the territory of the Spanish intenden-
cia/provincia of Honduras was authoritatively defined by the King of
Spain and the SpanishCouncil of State assisting him in the arbitration as
follows :

"by virtue of this Royal Decree the Province of Honduras was
formed in 1791,with al1the territories of the primitive province of
Comayagua, those of the neighbouring Province of Tegucigalpa
and the territories of the bishopric of Comayagua, thus com-
prising a region bordering on the south with Nicaragua, on the south-
West and west with the Pacific Ocean, San Salvador, and Gua-
temala; and on the north, north-east, and east with the Atlantic
Coastinhabited at the
Ocean, with the exception of that part of the
time by the Mosquito, Zambos, and Payas Indians, etc." (United638 DISPUTE (ELSALVADOR/HONDU (SEAS.P.TORRES BERNARDEZ)

Nations, Reports of International Arbitral Awards, Vol. XI, at
p. 112).

"the demarcationfixedforthe Provinceor District ofComayagua or
Honduras, byvirtue of the Royal Decree of the 24thJuly, 1791,con-
tinued to be the same at the time when the Provinces of Honduras
and Nicaragua achieved their independence, because though by
Royal Decree of the 24th January, 1818,the King sanctionedthe re-
establishment of the chiefmunicipalityofTegucigalpa witha certain
degree of autonomy asto its administration, said chief municipality
continued to form a district of the Province of Comayagua or Hon-
duras,subject to the political chief ofthe province; and in that capa-
city took part in the election, 5th November, 1820,of a Deputy to
the SpanishCortes and a substitute Deputy forthe Provinceof Coma-
yagua, and likewise took part together with the other districts of
Gracias, Choluteca, Olancho, Yoro with Olanchito and Tmjillo,

Tencoa and Comayagua, in the election of the Provincial Council of
Honduras, said election having taken place on the 6th of November
of thesame year, 1820"(ibid.,p. 114).

(b) ïhe uti possidetisjuris principleand theruleofevidenceinArticle26of
theGeneralTreatyofPeace

16. Article5 of the Special Agreement provides that, when delivering

itsJudgment,the Chamber willtake intoaccountthe mles ofinternational
law "including, where pertinent", the provisions of the General Treaty of
Peace. Three provisions of the Peace Treaty could be seen as potentially
relevant in this respectrticle 6(previousbilateral and multilateral trea-
ties), Article 26 (documents and other evidence and arguments) and Ar-
ticle 37 (status quo of 14July 1969).Some references were made by the
Parties toArticle 37,butthe provision of the PeaceTreatywhich attracted
their attention more, by far, and was discussed by them at length in the
current proceeding was Ai ticle26,namely the Article ofthe PeaceTreaty
indicating the documents and other evidenceand arguments that theJoint
Frontier Commission was instructed to take into account as a basis of its
own work under the Peace Treaty. There were two reasons for that.
Having failed to single out expressly the utipossidetisjuris principle in
Article 5 of the Special Agreement, the Parties found in the wording of
Article 26 of the Peace Treaty a convenient way of confirming to the

Chamber theirunderstanding that, in the solving oftheir "landboundary
dispute", they would likethe utipossidetisjurisprinciple to be applied by
the Chamber as the fundamental nom. Secondly, Article 26of the Peace
Treaty was frequently discussed before the Chamber by the Parties
because of the "forma1title-deeds to commons", "human" and "effectiv-
ifés"argumentsadvanced by El Salvador.
17. The Judgment also gives the correct legal answer to those argu-
ments of El Salvador as theymay relateto the question of the relationship639 DISPUTE (ELSALVADOR/HONDU (SEAS.)PTORRES BERNARDEZ)

between Article 26ofthe Peace Treaty and Article 5ofthe SpecialAgree-
ment. Inthe lightofthe verylanguage ofArticle26,it isdifficult, to saythe
least, toassert that it sets forth a substantive or material "conventional
rule" of any kind, cal1it utipossidetisjuris, argument of a human nature,
effectivitésor otherwise. Article 26does not mention, still less define, any

conventional substantive rule of international law. According to its own
words,the provisionconfines itselfto instructingtheJoint FrontierCom-
mission to take as a basis for its work certain "documents" delivered by
Spanish colonial authorities, both civil and ecclesiastical, and also other
"evidence" and "arguments" of various kinds (legal, historical, human,
any other) brought before the Joint Frontier Commission by the parties
and admitted underinternational law.One is here, as recognized by the
Judgment,inthepresence ofaclear-cut "rule ofevidence" imposedonthe
said Commission by the parties for the purpose of theperformance of its
tasks - the controlling international law mle governing the task of the
Commission being "the consent ofboth Governments"asprovidedfor in
Article 27 of the Peace Treaty. But the task of the Chamberis not con-
trolled bythat principle.The task ofthe Chamber istosettlethedispute by
applyingthe rulesof internationallawbindingthe Parties. Such an objec-
tive law is to be found in customaryinternational law and, certainly,in

treaty provisions applicable between the Parties,but in the latter case if,
and onlyif, suchtreaty provisions set forth substantive mles susceptible of
taking the place of the corresponding customary principle or rule appli-
cable.

18. This isnot, however, the case with Article 26ofthe Peace Treaty.It
refers only to "evidence" agreedupon bythe Partiesin order to prove in a
given environment certain principles and rules, including the utipossi-
detisjuris principle. Like any other rule of "evidence", it has the purpose
of defining the means of assisting the concrete application of a given
substantive mle or rules of law and not of replacingthe latter. Moreover,
the "evidence rule" of Article 26 of the Peace Treaty is, of course, sub-
ject to the niles on interpretation of treaties codified at present in the
1969Vienna Convention on the Law of Treaties. As such, it is not con-

trolled by the unilateral interpretations of any one of the Parties to the
Peace Treaty and to the present case,particularly ifthose interpretations
proceed by ignoring one or another half of the conventional text to be
interpreted or byunderliningsome given terms inthefirst or inthesecond
sentences of Article 26to the detriment of others which are also part and
parce1of the sentence concerned. The Peace Treaty, it should not be for-
gotten, is a conventionalbilateral instrument adopted through a "media-
tion procedure" in which both Partiesparticipated.

19. 1conclude,therefore,astheJudgment itselfdoes, that, so far asthe
"substantive law" thatthe Chamber iscalledupon to apply isconcerned,640 DISPUTE (ELSALVADOR/HONDU (SAPS.P. TORRES BERNARDEZ)

Article 26 adds nothing except for indicating indirectly, namely through
the reference contained therein to certain elements of "evidence", the
wish ofthe Parties that certain rules ofinternational lawbe applied bythe
Chamber. In this respect, it has reassured the Parties during the proceed-
ings and has alsobeen helpful forthe Chamber itselfinviewofthe lackof
specificity in Article 5of the Special Agreement asto individual rules of

international law. Article 26 does not, however, define any applicable
substantive principle or rule of law. The Article is not even specifically
referred to in the definition of the "applicable law" contained in Article
ofthe Special Agreement.Thus 1share the proposition that land limits -
limits of real property rights belongingeither to communities or individ-
uals - cannot transform themselves intointernational frontiers by virtue
of Article 26 of the Peace Treaty, just as they cannot do it either by an
application of the utipossidetisjuris principle as customarily defined by
Spanish-American Republics or on the basis of the Spanish Lawsforthe
Indies.

20. The pertinence of Article 26of the Peace Treaty to the tasks of the
Chamber has been real, but it has had nothing to do withthe definition of
the rules of international lawto be applied bythe Chamber tothe case. Its

pertinence concerned the proof of the facts alleged by the Parties. In this
respect theChamber, and 1 concur with it,gavefull effectto Article 26of
the Peace Treaty, because the Parties accepted during the current pro-
ceedingsthatthe rule on evidencethey gavetotheJoint Frontier Commis-
sion in thatArticle applies also in the proceedings before the Chamber,
and they have so pleaded. This should, however, be understood without
prejudice to the general powers granted the Chamber in matters of evi-
dence under the Statute of the Court. This would seem also to represent
the Parties'interpretation ofthe legalsituationon evidence,othenvise the
request made by El Salvador at the hearings pursuant to Article 44,para-
graph 2, and Article 50 of the Statute of the Court would be difficult to
understand.

(c) Theutipossidetisjuris principleandfheeffectivités

21. Afewremarks onthe question of effectivitéa sre now in order with a
viewto clarifying further my position on the very concept ofthe utipossi-
detisjuris of the Spanish-American Republics and other possible appli-
cableprinciples or rules of international law.There has been quite a lot of
confusion at the current proceedings between "applicable law", "argu-
ment" and "evidence", the statement in the 1986Judgment of the Cham-
ber of the Court in the Frontier Dispute (BurkinaFaso/Republic of Mali)
case quoted in paragraph 61 of the reasoning of theJudgment being the
object of various interpretations.

22. To acertain extent itmaybe saidthatboth Parties agreed that inthe
case of the "land boundary dispute" the utipossidetisjuris should prevail641 DISPUTE (ELSALVADOR/HONDU (REP.S)P.TORRES BERNARDEZ)

overthe effectivités, ithoutprejudice, ofcourse,tothe differentpositions
adopted by them on the kind of evidence they might rely upon to prove
the 182 1utipossidetisjuris situation and the question of the relationship

of Article 26 of the Peace Treaty and Article 5of the Special Agreement.
The Parties, however, failed to define with any degree of precision the
effectivitésonceptthey had in mind. In fact, they have referred to various
possible kinds of effectivités, ithin quite different legal contexts. A dis-
tinction which should, however, be always borne in mind isthat between
the so-called effectivitcolonialesand the State'seffectivités.his distinc-
tion ismade in the aforesaid 1986Judgment on the FrontierDispute(Bur-
kina Faso/Republic of Mali) case, in which the Chamber of the Court
refers,first,tothe "colonialeffectivitésin order to describe the conduct of
the colonial authorities as proof of the effective exercise of territorial
jurisdiction during the colonialperiod and, secondly,to the effectivitéss
effective possession and/or administration by a State other than the one
possessing the title or irrespective of that title.

23. The first of these two kinds of effectivitdoes not giverise to any
nom ofinternational law. It couldonly be an element ofinterpretation or

confirmation of the utipossidetisjuris, an element related tothe testing of
that principle in concrete situations.The second kind of effectivits en-
tioned, namely effectiveadministration by a State other than theone pos-
sessingthe utipossidetisjuristitle or irrespective oftitle,mayberelevant to
the identification ofthe "applicable law".The "principle ofeffectiveness"
may indeed, other circumstances concurring,be atthe origin ofterritorial
rights.Thus it cannot be altogether excluded a priorithat such effectivités
could be of some relevance also to the definition of the law applicable
to the case. What seems to me, however, a legal impossibility is a simul-
taneous application of the uti possidetisjuris principle of the Spanish-
American Republics and of a rule of international law construed upon
the basis of the concept of "Stateeffectivités".
24. In this respect, the Judgment, while distinguishing the above-
mentioned matterscorrectlvatthe levelof~rinci~le.isnot immuneto acer-
tain degree of confusion through failingLtomake'a clear-cut distinction
between admissible evidence under the applicable uti possidetisjuris
principle and admissible evidence when other principles or mles ofinter-

national lawareinvolved.Admissible evidence under the first and second
hypotheses should have been clarified furtherinthe Judgment in order to
dispel the confusion made in the Parties' pleadings between "applicable
law" and "evidence". The treatment in certain well-defined hypotheses of
post-independence effectivitésaspossible "evidence" of utipossidetisjuris
rights should not be allowed to impinge, in any way, on the definition,
contents and purpose ofthat principle as applicable between the Spanish-
American Republics, including the Parties to the present case. As the
Judgment has stated, the utipossidetisjuris principle is essentiallyretro-
spective. It is also a principle the implementation of which is grounded,
basically or mainly, in "retrospective evidence", namely in legislation ordocuments issued by Spanish civil or ecclesiastical colonial authorities.
Such documents could be of various kinds, including as with most of
those submitted in the present case documents describing the exercise of
territorial jurisdictions by the Spanish colonial authorities, namely
describing "colonial effectivités". he best proof of this is the very lan-
guage of Article 26of the Peace Treaty, with its reference to "documents
issued by the Spanish Crown or by the Spanish colonial authorities". But
Article 26ofthe PeaceTreaty does not mixup such "documents" withthe
evidence referred to in the second sentence of that Article. Both kinds of
evidence are kept separately, and so they should be, because of the
very definition of the utipossidetisjuris principle applicable between the
Parties tothe present case qua Spanish-American Republics.

25. For adetermination in the present case of a given utipossidetisjuris
situation, "post-1821 effectivités"in the nature of conduct cannot be

equated with "colonial effectivités"orbe treated morefavourably than the
cautious and qualified evidentiary treatment givento the republican land
titles inthe Judgment.To weighup, utonce,al1the effectivitésb ,y conduct,
both pre- and post-independence, in order to arrive at a conclusion as to
the position of an 182 1utipossidetisjuris boundary, does not make much
sense if one is applying the utipossidetis juris principle. In none of the
specific hypotheses dealt with in the quoted passage of the FrontierDis-
pute (Burkina Faso/Republic of Mali) Judgment is there any confusion
between the utipossidetisjuris (with its normal and natural means of evi-
dence) and effectivitésbyconduct ofthe Stateor Statessubsequent to their
independence. In none of them are either of the said kinds of effectivités
equated in evidentiary value to the colonial documents, colonial effectiv-
itésdocuments included, on which the implementation of the Spanish-
American Republics' utipossidetis juris principle is grounded. To deter-
mine the relationship, if any, between States'post-independence effectiv-
itésby conduct and the utipossidetis juris principle in a given case it is
necessary in thefirst place to determine the uti possidetis jurissituation
through colonial documents and to stop there, so far asthe utipossidetis
juris determination is concerned, if the indicated operation yields a reli-

able utipossidetisjuris line. This isalso, it seemsto me,the meaning ofthe
dictum of the FrontierDisputeChamber, in the BurkinaFaso/Republicof
Mali African case. This is, of course, without prejudice to the eviden-
tiary value of effectivitésby subsequent State conduct for the purpose of
applying a mle of international law other than the uti possidetis juris
principle.643 DISPUTE (ELSALVADOR/HONDU (SEAS.)PTORRES BERNARDEZ)

26. On the other hand, the Judgment is absolutely right when distin-
guishing the two kinds of effectivitésreferred to above from the "human
argument" of Article 26ofthe PeaceTreaty.The "human argument" can-
not be equated either with the so-called "colonial effectivités"or with
"States'effectivités".t is not "colonial" because it does not relate to the
conduct of colonial authorities and itisnot a "State'sfectivitébecause
itdoes not referback to acts or functions of organs ofthe State, or attribu-
tabletothe State,but tothe conduct ofprivate persons, nationalsofa given
country. The "human argument" bas,-infactinothing or very little to do

withthedefinition ofthe "applicable law", particularly where theutipos-
sidetisjuris is concerned. The same conclusion applies, in my opinion, to
the "community-rooted" argument which, as presented by El Salvador,
appears to be just another way of expressing the "human argument". 1
would add, in that respect, that no evidence has been submitted to the
Chamber asto the existenceofany kind of "community", defined interms
of ethnicity or otherwise, different from the "communities" represented
by the expression "Salvadorian nationals" or "Honduran nationals".

27. It followsfromthe above that mygeneral approach to evidencehas
been one which iswide,but without losing sight ofthe object and purpose
of the legal operation in which the Chamber was actually engaged. It is
one thing forthe Chamber to make a legal determination aimed at estab-
lishing an 1821utipossidetisjuris line, which should be its first task, and

quite another thing for itto determine whether ornot such a linewasmod-
ified by the subsequent conduct of the Parties or by other rules or legal
considerations, as may have occurred in certain instances. The evidence
submitted by the Parties should have been weighed and given the effect
that it desemes in concreto,bearing in mind whether the Chamber was
within the first or the second stage of the suggested démarchewhich,
essentially, correspondsmutatis mutandisto the one followed in the 1933
Arbitral Award on the Honduras Borderscase between Guatemala and
Honduras. It is also, mainly, for that reason t1aconsider al1Spanish
colonial land-grant titles or documents to be perfectly admissible evi-
dence in the present "land boundary dispute", as well as other relevant
elements of evidence emanating from the Parties themselves, such as
"diplomatic correspondence", "official communications", "interna1reso-
lutions", etc.,without excluding furthermore "officia1records" of "nego-
tiations", "conferences", "mediation procedure" and "mixed boundary

commissions" since independence (as wellas relevant "treaties", "agree-
ments" and "understandings" arrived at by the Parties before the Special
Agreement of 1986),to the extent that al1such evidence might be admis-
sible in concretounder the principle or norm of international law which
is applied.(d) fie uti possidetisjuris principleand thetitulos ejidales invokedbythe
Parties
28. As stated above, the object and purpose of an utipossidetis juris

determination of a givenfrontier line in the present case consists of ascer-
taining the "administrative colonial boundaries" of the former Spanish
intendencias/provinciasof Honduras and of El Salvador in the sectors of
the land frontier between the Republic of Honduras and the Republic of
El Salvador in dispute. However, the "forma1 title-deeds to commons"
argument of El Salvador has also raised an issue related to the historical
Spanish Laws for the Indies (namely to the Leyes de los Reynos de Las
Indiasas named in the Recopilacionof 1680),which requiresme to present
some comments because the Judgment does not consider it necessary to
do so,notwithstanding the fact that this historical Spanish law is a fact in
the case, in accordance with thejurisprudence ofthe Court asconfirmed
in 1986by theJudgment of the Chamber of the Court in the FrontierDis-
pute (Burkina Faso/RepublicofMali)case.The question of Spanish histor-
ical lawraised bythe aforesaid Salvadorian argument (1would describe it
briefly for convenience as the "titulosejidalesargument" ')derives from

El Salvador's assertion that certain land titles or related documents, the
so-called "forma1title-deeds to commons" granted by the Spanish colo-
nial authorities to Indian communities, had a greater probative value for
an utipossidetisjurisdemonstration because, interulia,certain such grants
supposedly had the effect of modifying, in one way or another, the
"administrative colonial boundaries" between the former Spanish inten-
dencius/provinciasof Hondurasand of El Salvador.

29. This proposition is unacceptable. The "administrative colonial
boundaries" between the territorial jurisdictions of the various colonial
administrative units were decided exclusively by the Spanish Crown
through the ConsejodeIndiasor other central authorities in Spain or, in

specific situations, by special instructions from the Crown to its highest
executive authorities in the main Spanish-American territorial unit con-
cerned, the Captain-General and the Audiencia of Guatemala in the
instant case.The titulosejidalesof the Indian communities have nothing to
do with the definition of the "administrative colonial boundaries" of the
various territorial jurisdictions existing in Central America.This is,how-
ever, what El Salvador ultimately pleaded and asserted before the Cham-

' Expressionssuch as "ritulosejidales"(describedby El Salvadorin English as"for-
maltitle-deeds to commons"),"ejidosdereduccion"and"ejidosdecornposicion"arealien
to the Spanish Lawsforthe Indies,which used theterm ''ejireferenceto theejido
assigned by law to a newly-foundedtown.ber. 1willbriefly explain below some of the main reasons why under the
Spanish Lawsforthe Indies the matter couldnotbe aspresented by ElSal-
vador. 1would add that the Chamber need not have adoptedso diffident
an approachto thisquestion of Spanish historical law,because the answer
isaverysimple oneand could easilyhavebeen ascertainedfromthe cédu-
las realesbefore the Chamber as well as from the very text of the titulos
ejidalesthemselves. Moreover, 1am not at al1sure, some statements to the
contrary in the Judgment notwithstanding, that the want of an answer to
this issue in the Judgment might not have had some untoward repercus-
sions on the frontier line determined by the Chamber in certain specific
instances.

30. In order to put the matter in perspective, 1would begin byrecalling
that the "original title" of the Spanish Crown in its American territories,
the only "original title" existing under international law in the present
case, was "dual" in character. By that international title the Spanish
Crownacquired "sovereignty" overthe American territories concerned as
well as "ownership" of the land, soil,subsoil, mines, waters,mounts, pas-

tures, etc.This "ownership" was not considered asa "private" ownership
ofthe King,but asa "Crown" or "State" ownership designated bythe term
"regalia"(tierrarealengawhen applied to the land). The Spanish Crown
was therefore, at the same time, absolute sovereign and sole public pro-
prietor of Spanish America (subject to prior indigenous properties as
recognized by Spanish laws). The political, administrative and judicial
system of government as well as the Laws for the Indies in general
reflected this "dual" aspect of the Spanish Crown's original title over its
American territories. The title was used for acts adopted "à titredesouve-
rainnaswellas forthe granting ofprivate property rightsover land. Itwas
usedindeed both waysin relation to the Indian population as wellaswith
respect to the Indian towns and communities established and organized
by the Spanish authorities as from the beginning of the colonization
period which followed the period of discovery and conquest.

31. On the occasion of the establishment of newIndian towns, for the

purpose of consolidating colonization as well as the Christianization of
the Indians, pieces of land were assigned, always gratis,through political
decisions of the "Superior Government" of the Captaincy-General of
Guatemala (the Captain-General and the Audiencia acting asan advisory
body in matters of government), which were generally known as reales
acuerdos. These decisions were adopted pursuant to the Ordenanzaspara
losdescubrimientos,nuevaspoblaciones ypacficacion enacted by PhillipII
in 1573,incorporated into the 1680Recopilacion,as well asto subsequent
legislation on the political organization of territory, such as, the 1618
Ordenanzaspara el buengobiernode los Zndiosde lasprovinciasde Para-
guay. None of the so-called "forma1title-deeds to commons" invoked byEl Salvador was issued by Spanishauthorities under this kind of legisla-
tion. Al1those titulos ejidales were granted to Indian communities of

Indian towns (reducciones),founded a longtimebefore, pursuant to legis-
lationofadifferent kind, described generally aslegislation on the compo-
sition ofCrownlands (tierrasrealengas).Thiskind oflegislation had, asits
very object, the grant of private property rights over landto communities
and to individuals. The first piece of this legislation on composition was
enacted by Phillip II in 1591.It was the subject of a first adaptation by
Charles II in 1692and ofa second and last one by Charles III in 1754.The
titulosejidalesinvoked by El Salvador in connection with its "forma1title-
deeds to commons" argument were issued under either the 1692or the
1754versionsof that legislation.

32. The legislation for the composition of tierras realengaswas con-
cerned exclusively, as indicated, with forms of acquisition of property
rightsover land through various legalmeans, including composition in its
strict sensebut alsothrough free gift,ordinary sale and prescription. Con-
stituted Indian communities were initially to acquire property rights over

land under this legislationthrough free gift (land was supposed to be
resewed forthis purpose) and asfrom about 1646also by "composition",
understood asa means of acquiringproperty rightsover land.The legisla-
tion on acquisition ofprivate rights in land varied in itsdifferent versions,
but it was always a judiciaVadministrative procedure as reflected in the
titulosejidalessubmitted to the Chamber. The "superior government", as
the executive branch of government, was not involved in that procedure.
This confirms that only "property", not "jurisdiction", was involved,
because a judicial/administrative procedure is not a proper conduit for
the grant of "jurisdiction". The Spanish Laws for the Indies were no
exception in this respect. Al1the above suggests that the assignment of
land for the establishment of Indian towns (reducciones)which was car-
ried out by the "superior government" when territorially organizing the
dispersed Indian population had nothing to do with thesubsequent grant
to the Indian communities which lived in those towns (reducciones),with
communal property, of land needed both for their subsistence and for
their ability to pay the Crown theirannual tribute.

33. This Spanish legislation and the related procedures suffice inthem-
selvesto provide the obvious answer to the question of Spanish historical
law here considered. Under the said legislation and procedures it could
not be a question of granting territorial jurisdiction. It follows that
the payment or non-payment by the Indian communities for the titulos
ejidalesgranted them is as such quite irrelevant to any demonstration ofutipossidetisjurisrights. Such titles cannot, by definition, affect "adminis-
trative colonial boundaries", to ascertain which isthe object and purpose
of any utipossidetisjuris determination. 1find, therefore, thatthe distinc-
tion between the so-called ejidos de reduccionand the so-called ejidosde
composicion - so much argued overby the Parties atthe current proceed-
ings - had little relevance tothe task that the Chamber wascalled uponto
perform. Ifthe ejidosconcerned had been assigned to Indian towns aspart
and parcel of their municipal territorial jurisdiction, matters could be
looked at differently. However, none of the documents concerned relate
to the ejido of an Indian town, but only to land granted as communal
property to Indian communities under legislation and procedures dealing
with private-law matters. Even counsel for El Salvador recognized that
the titulosejidalesso-called de reducciongranted to Indian communities
involved the payment ofjudicial fees. TheSpanish Lawsfor the Indies do
not provide for payment ofjudicial feesin order to obtainmunicipal terri-
tory or municipalterritorialjurisdiction !How could itbe othewise? The

only thing that could have had a bearing on the task to be performed by
the Chamber was not present in the instant case because, as indicated,
none of the documents concerned relates to the establishment of a new
Indian town withitscorresponding legallyprotected ejido,which waspart
and parcel ofthe municipal términoofthe town. Following the granting of
a tituloejidalofthe kinddescribed by ElSalvador as "formal title-deeds to
commons", the Indian communitydid not move at al1tothe grantedland.
It remained settled in the Indian town where it was previously registered
and to whose Indian community the titulo ejidal concerned had been
granted.

34. When the land granted was notforthe establishment of an Indian
town with its legally defined and protected ejido (reduccion)(pursuant to
legislation of the kind of the 1573Ordenanzaspara losdescubrimientos,
nuevaspoblacionesypacificacion), theland concerned by the title ordocu-
ment cannot be equated, under Spanish colonial law, with the municipal

territory of an Indian town. The land concerned in the titles invoked by
the Parties was not subject to the régimeof resguardos,namely of an area
legallyprotected by law,aswas the case withthe ejidoof the Indian towns
which were subject to that régimeof resguardos.This explains, in turn,
why, in several instances, the titles in question granted land in areas far
away from the town of the corresponding Indian community, including
areas located in other provinces ;how the sizeof thelandgranted appears,
in most of the cases,to be more extensive than the "one league" assigned
by legislation tothe ejidoof an Indian town (reduccion);and how anumber
of the titles themselves refer to property rights without making them con-
ditional on any particular provision concerning the inalienability of the
land, or without attaching tothe granted land any particular condition as
to the form of its economicexploitation by the Indian community, as wasthe case with the ejidoof the Indian town (reduccion)under the resguardo
régimementioned above. In the absence of a resguardorégime,one can-
not talk about municipal territory or municipal territorial jurisdiction.

35. In fact, El Salvador admitted at the hearings that the invoked "for-
mal title-deeds to commons" did not effect an "automatic modification"
of jurisdictional boundaries of the colonial provinces. If so, and if the
Spanish law did not contain general provisions attaching such an effectto
that kind of title, ifthe titles granted to the Indian communities provided
for property rights in land only, if the councils of thedian towns could
not modify their own municipal territory (término)which includes the
ejidoof thetown, and ifthe Spanishterritorialauthorities in control ofthe
Indian towns (i.e., corregidores)were not empowered to modify by them-
selvestheterritorial jurisdiction oftheir districts,howthen couldtheterri-
torial jurisdictions defined by the "administrative colonial boundaries"
of the provinces or intendencies possibly be modified as a result of the

granting of such "forrnal title-deeds to commons" to Indian communi-
ties?To prove that such amodification didtake place notwithstanding the
above, one would have to adduce and show an executive decision of the
Crown or of the "superior government" of the Captaincy-General of
Guatemala in that sense, but, as indicated, no such actionhas been docu-
mented by El Salvador. Needless to Say,El Salvador's contention has
never been borne out by arbitral tribunals or in cases before the Interna-
tional Court ofJustice.The tribunal ofthe 1933Arbitration ontheborders
of Guatemala/Honduras did not in itsAward make a singleapplicationof
the administrativecontrolconcept which ElSalvador asked the Chamber
to apply as from the very moment that it admitted that the granting of
"forma1title-deeds to commons" did not effect, after all, any "automatic
modification" of the provincial administrative boundaries under the
Spanish Laws forthe Indies.

36. "Forma1 title-deeds to commons", like other colonial documents

submitted, are perfectly admissible evidence of colonial effectivitéswithin
the context of an utipossidetisjuris demonstration,but, as the Judgment
rightly indicates,they arenot Spanish colonial lawdocuments concerning
the definition of the administrative boundaries of the colonial provinces
or intendencies of Honduras or of El Salvador. None of these "forma1
title-deeds to commons" has either such apurpose or such an effect.They
may provide only circumstantial evidence oftheboundaries of an admin-
istrativekind which alone are of interest for an application ofthe 1821uti
possidetisjurisbetween the Parties to the present case.

37. In the light of the above, as should be clear by now, the tituloseji-
dalescalled by ElSalvador "forrnal title-deeds to commons" do not haveany prior evidential value over other colonial documents submitted.
There isnothinginherent inthem, or provided for inthe Spanish Lawsfor
the Indies, justifying any specialtreatment bythe Chamber of such docu-
mentsfrom the standpoint ofevidence ofthe 1821 utipossidetisjuris. They
do not have any particular pre-eminence over other colonial documents
referred to in Article 26 of the General Treaty of Peace. Furthermore,
El Salvador's contention appears to be in complete contradiction to gen-
eral international judicial law and the practice of international courts
and tribunals. This general law and practice are adverse to any municipal
law concept of a "best evidence rule".

B. Specific ObservationsontheFrontierLineDefinedby the
JudgmentinSome of theDisputedLandSectors

38. The Judgment defines the land frontier between the Republic of
Honduras and the Republic of El Salvador, in the six sectors referred to
the Chamber, on the basis of the utipossidetisjuris principle or alterna-

tively,wherever pertinent, on the basis of concurrent subsequentconduct
of the Parties. The overall results of the application of that lawto thec-
tors in dispute, in the light of the evidence submitted by the Parties,
appears to me satisfactory. In any case, and beyond any subjective appre-
ciations that one may have, the land frontier between thetwo Republics is
nowdefinitelyestablished al1alongtheircommonborder. This is,without
a doubt, one of the merits of the Judgment.

39. As could be expected in so complex a land-boundary dispute, it
is only normal that 1 am unable to share in every one of the grounds
expounded in the reasoning of the Judgment in support of its decisions
on the course of the frontier line in the various sectors. For example,
in the fifth sector (Dolores), 1 would have given more weight to the
San Miguel de Sapigre evidence as well to as the conduct of the Parties
subsequent to 1821. But the reasoning of the Judgment is certainly a
coherent and utipossidetisjuris founded explanation which yields, in any
case,what 1consider to bethe correct dejureline inthe sector. 1wouldalso

Say, to give another example, that in the second sector (Cayaguanca)
the quebrada Copantillo segment of the frontier line of the Judgment
is the result of a construction of the Salvadorian republican Dulce
Nombre de la Palmatitle which offers room for discussion. The linecorre-
sponding to that segment in the interpretationmade by Honduras of the
said land-title is also for me a perfectly possible and justified interpreta-
tion. In any case, the segment of the frontier line immediately after the
quebradaCopantillo is the obvious line to follow, as is done in the Judg-
ment. In the sixth sector (Goascoran),theGoascoran river line defined by
theJudgment asthefrontier between thetwo Republics isalsothe obvious
utipossidetisjuris line. That frontier line as defined in the Judgment dis-
poses, of course, of someargument of ElSalvador relating tothe constitu-entterritorial units of the Republic of Honduras.Thefrontier line or seg-
ments of frontier line defined for othersectors by the Judgment are like-
wise,for me, in most cases dejure lines, byvirtue of the 1821utipossidetis
jurisor bythe consent derived from concurrentconduct ofthe Parties fol-
lowingindependence, orby both. Bywayofillustration 1willmention, for
example, the Sazalapa river line and the line which follows the eastern
limit of the Arcatao title until Las Lagunetas or Portillo de Las
Lagunetas in the third sector, the Rio Negro line in the Naguaterique
sub-sector of the fourth sector, the line between Cerro Montecristo and
Talquezalar in the first sub-sector of the Tepangüisir sector,etc. In fact,
have no observations or reservations to make on the land-frontier line

defined by the Judgment except in connection with the Talquezalad
Piedra Menuda segment(first sector), Las Lagunetas/Poza delCajon seg-
ment (third sector) and Las Caiïas river segment (fourth sector). These
observations willbe summarized below.

(a) nefirst sectorofthelandboundary(Tepangüisir)

40. In this sector the Judgment does not give al1the weight to be
expected to the 182 1 uti possidetis juris situation in the area between
Talquezalar and Piedra Menuda. The 1776Citala title concerned lands
under the territorial jurisdiction of Gracias a Dios (Honduras) and, as
explained in paragraphs 28to 37 above ofthis opinion, it isa legalimpos-
sibilitythatunder theSpanish Lawsforthe Indies a document ofthe kind
of the 1776 Citala title could have had the effect of altering, directly or
indirectly, the administrative boundaries of the colonial provinces. It is

true, and here 1haveno reservations, that the Parties bytheirownconduct
accepted as from the 188 1negotiations that the frontier between the two
Republics should run somewhere through the area where the north-east
limit ofthe 1776 Citala title wassupposed tobe located. In the light ofthat
concurrent conduct, it was not possible tocomeback to the 1821utipossi-
detis juris line, namely, to the east, south and west limits of the 1776
Citala title. The frontier must run, therefore, from Talquezalar to Piedra
Menuda and El Zapotal, but should it do so in a straight line, or passing
through the Ocotepeque Tepangüisir marker located to the south of that
straight line?
41. The Judgment adopts the straight-line solution. 1consider this a
questionable solution in the light of the evidence before the Chamber.
That evidenceand the lawapplicable suggest,inmyopinion, that the fron-
tier line should pass through the Ocotepeque Tepangüisir marker on its
way from Talquezalar to Piedra Menuda and El Zapotal. The colonial
effectivitésof Honduras, represented by the 1817-1818survey and title of
Ocotepeque lands undertaken by the Spanish authorities of Gracias aDios (Honduras), confirms that at the critical date (1821)the area of the
so-called"Ocotepeque triangle", whatever itssizemightbe, wasunder the
territorial jurisdiction of that colonial province, as indeed was thehole
of the area covered by the 1776Citala title itself. On the other hand, the
broad consent givenby Hondurasto the north-east limitofthe 1776Citala
title asfrom the 1881negotiations, cannot - forreasonsmentioned below
- be understood as including a straight line between Talquezalar and
Piedra Menuda which would ignore the Tepangüisir marker of the
1817-1818Ocotepeque triangle. The conclusion isan obvious one. Ifthere
is no consent of Honduras to a straight line between Talquezalar and
Piedra Menuda, the 1821utipossidetisjuris should prevail and thefrontier
line shouldrun from Talquezalar to the Ocotepeque Tepangüisir marker,
and from there to Piedra Menuda and El Zapotal. In any case, the post-

1821 concurrent conduct of the Parties does not provide a basis for a
straight line Talquezalar/Piedra Menuda/El Zapotal as a dejure line. A
line of this kind should have passed throughtheOcotepeque Tepangüisir
marker, with a correspondingindentation.

42. The Judgment overcomesthis problem byconcluding that, afterall,
the 1817-1818Ocotepeque title did notpenetrate into the lands covered by
the 1776Citala title; a conclusion that the Judgment based upon some
geographical considerations and an interpretation of the documentary
evidence that 1do not share. 1have, therefore,reservations on thisconclu-
sion of the Judgment. The excursions made, this time, by the reasoning
into the realm of the Spanish Laws for the Indies are in any case quite
unfounded. The records ofthe 1817-1818Ocotepeque title showthat there
was no oversight or mistake at all. Indian communities could lose land
rights granted by title for a variety of reasonsinteralia, through leaving
the land uncultivated. This is what was alleged by Juande Dios Mayorga
in the prolonged lawsuit which gave rise, ultimately, to the deliveryto the

Ocotepeque community of its 1817-1818title. Moreover, the question at
issue is not the land rights of Indian communities but the exercise of
"colonial effectivités"reflected inthe submitted evidence.

43. 1have also to dissociate myself from the use made inthe Judgment
of the records of the 1914 Honduran republican title to the land of
San Andrés de Ocotepeque (Reply of Honduras, Ann. 1.4,pp. 47-60).
My reading of those records leads me to a conclusion opposite to that
apparently reached by the Judgment in its reasoning. This piece of evi-
dence confirms, in my opinion, that the 1817-1818Ocotepeque triangle
remained outside the scope of the shared views of the Parties in 1881to
adoptthe north-east limitof the 1776 Citala title, broadly speaking, asthe
area where they should establish the frontier line. The 1914 surveyor
located the Tepangüisirmarker of Ocotepeque at 63" S33'Win relation toPiedra Menuda and at adistance of 1,902m. Heindicated thatthe Tepan-
güisir marker was, at the moment of his survey (envirtuddequedarhoy),
"in Salvadorian territory" (Reply of Honduras, Ann. 1.4,p. 59) so as to
explain why he left out of accountthat Ocotepeque boundary marker of
Honduras. At the time of the survey there was no established frontier
between thetwo Statesallowing one to speak in alegal senseofthe "terri-
tory" of one or another Republic. The term "territory" used by the sur-
veyor thus cannotbe read asbearing such a legal meaning. The surveyor,
who crossed the Pomolariver and reached PeiiascoBlancotothe south of
Talquezalar, made the remark concerned when describing his itinerary

from Peiiasco Blancoto Piedra Menuda. In his final report to the provin-
cial authoritieshe explained his omission ofthe "Tepangüisir marker" as
follows :

"The only line which was traced in ignorance of the separation
deed was that corresponding to Citala, Republic of El Salvador, as

the Mayor of that village had refused to make the deed available;
however, the Political Governor of that department also sent me
instructions from the President of the Republic to keep to the recog-
nized line, without entering into discussion on the real line as 1did
here. It is regrettable that the dividinglines are being disregarded,
because as will be seen in the former dossier there is a marker
at Tepangüisir which belongs to Honduras; and today it has dis-
appeared without our knowing how or why." (Zbid.,p. 52.)

44. The records also explain very clearly the reasons for the instruc-
tions given to the surveyor by the superior authorities. The provincial
authorities,for example, explainedthe matter as follows :

"In regard totheboundary lineofthe Republic of ElSalvador too,
the municipality of Citala was not represented, although it had been
summoned to appear; but the geometrician Nuiiez Casco delimited
this section in accordance withthe present state of ownership by the
two countries, and the surveyor in question, as he maintains in his
report, followed the instructions received from the President of the
Republic of Honduras, soas not to become involved in discussions
concerning those dividing lines which are to be defined and estab-
lished byajoint committeeresponsible fortheboundary between the
two States" (ibid.,p. 56);

while the central authorities observed that:
"As regards the part of the land of San Andréswhich adjoinsthe
Republic of El Salvador, the limitation presents no difficulty,
because the boundaries indicated in the resurvey of the community653 DISPUTE (ELSALVADOR/HONDU(R SEP).OPTORRES BERNARDEZ)

ofnatives in 1818arethe boundaries considered asbeing the dividing
lines between the two provinces and they were recognized by the
Convention of 28 September [1886] which came into effect after
implementation of the corresponding course by the Joint Boundary
Commission for Honduras in 1889. The engineer Nufiez Casco
marked the boundary along this frontier from the rock of Caya-
guanca upto the Piedra Menuda marker,without having touchedthe
following marker of Tepangüisir, which according to this Commis-
sion is at63" SW at a distance of 1,912 m from Piedra Menuda.
According to Nufiez Casco's survey this Tepangüisir marker has
remained on Salvadorian territory. When the boundary line with
El Salvador is definitively established, it will be necessary to correct

the surveyof San Andrés,extending itup tothe aforesaid marker. For
the time being the presentstatus quo should be respected." (Reply of
Honduras, Ann. 1.4,pp. 58-59.)
45. Thus the reasons forthe surveyor's instructions layinthe status quo
established by the 1886 Zelaya-Castellafios Convention concluded fol-
lowing the non-ratification by Honduras of the 1884Cruz-Letona con-
vention. Those instructions were furthermore issued without prejudice to
the frontier line which was to be "definitively established" by the two

Republics. Atthat moment,namelywhen that frontier waseventually estab-
lished, the 1914Ocotepeque title was supposed to be extended up to the
"Tepangüisir marker". It was consequently a question of maintaining
de facto "possession" by each Republic under the existing status quo
pending final settlement of the frontier between the two States. This is
confirmed,furthermore, by the further passage contained in the records :
"It should be mentioned that inthe decision taken in this connec-
tion, this approval is provisional insofar as the boundary line with

El Salvador isconcerned, aboundary which isto be definitively fixed
by the Frontier Commission which will take the ultimate decision."
(Ibid.,p. 59.)
46. Finally, in 1916 the President of the Republic of Honduras
delivered the Ocotepeque title concerned with the following express
caveat :

"to approve without prejudice to third parties the procedure con-
nected with the resurveying of the land of San Andrés[Ocotepeque],
pointing outthat the boundary line with El Salvador will definitely
be the one which is to be fixed by the Joint Frontier Commission"
(Ibid.,p. 60).

In the light of al1the abov1really cannot seehow the remark made bythe
surveyor in 1914could be an element of proof of any supposed acquies-
cence by the responsible authorities of the Republic of Honduras to
the "Tepangüisir marker" of Ocotepeque being in the "territory" of the
Republic of El Salvador in 1914-1916.654 DISPUTE (ELSALVADOR/HONDU(R SEPS.) PTORRES BERNARDEZ)

47. 1madethe observations above for reasons of principle as wellasto
put straight the records a1 perceive them. The matter, however, was not
of such proportions asto havejustified on mypart a negative vote on this
segment of the frontier line, bearing in mind the understanding of the
Parties in 1881to the effectthat the frontierquezalar/Piedra Menuda/
El Zapotal be established somewhere in thearea ofthe north-east limit of
the 1776Citala title, not to mention the factthat 1fullyagreed withthe line

defined bytheJudgmentforthe segmentbetween Cerro Montecristo and
Talquezalar.

(b) Thethirdsectorof thelandboundary(Sazalapa/La Virtud)

48. In this sector, the frontier line defined by theJudgment is certainly
an 1821utipossidetisjuris lineasfrom theboundary markerof the Pacacio
to Las Lagunetas or Portillo de Las Lagunetas (a tripoint first and a
quadripoint later on of the lands Arcatao/Lacatao/Gualcimaca/Nom-
bre de Jesus). From Las Lagunetas down to Poza del Cajon the line is a
matter of choice between several possible interpretations of the relevant
colonial and republican titles or documents. The Parties themselvesent-
ually recognized this at the current proceedings. The Judgment has, of
course, made its own choice. It is a choice with respect to which 1have

some reservations, although 1 admit that the administrative boundary of
the colonial provinces in theareadoes not appear, on the basis of the doc-
uments available, as having been defined with sufficient clarity. Here an
example is provided by the dispute recorded, in colonial times, between
sub-delegate land judges or surveyors of Lacatao lands and the owners of
the Hacienda of Nombre de Jesus.

49. 1agree with the point of departureadopted by theJudgment when
itconsiders asestablished that the line ofthe 182tipossidetisjurisin this
sub-sector corresponds to the boundary between Nombre de Jesus and
San Juan de Lacatao properties and that this boundary ran from the
Las Lagunetas tripoint (quadripoint) in a general south-eastward direc-
tion to apoint on the river Gualcuquin or ElAmatillo.1agreealso that the

point to be identified on the Gualcuquin or El Amatillo river coincides
with the confluence with that river of a small quebradaflowing into the
river from its right (south-western) bank and thattheboundary coincided
generally withthe course ofthe quebradaforthe last part of itsowncourse
down to the river Gualcuquin or ElAmatillo, and therefrom followedthis
latter river down to Poza del Cajon.

50. However, the main problems came thereafter. There are quite a
number of small quebradasin the area (Le.,Lajas, Las Marias, Turquin or
Pa10Verde, etc.) and the names and identification of these quebradasas
well as of rivers in the area (i.e., El Amatio, El Amatillo) give additional
cause for confusion. All these quebradas flow into the Gualcuquin or
El Amatilloriver but, of course, at diffeerentpoi,omerather nearto theupstream course of theGualcuquin, some near to the downstream course
of theGualcuquin. It seems also that therearecertain places called Lagu-
netas in the area, a fact which could also create some confusion with the
Portillo de Las Lagunetas mentioned above. The Judgment, in its own
choice, selects a quebrada (Quebrada de la MontaIiita/Quebrada de
Leon) which merges with the upper waters of the Gualcuquin or ElAma-
tillo river practically at the site of its headwaters. Apparently, the Judg-
ment takes the Quebrada de la Montaiiita/de Leon asbeing the quebrada

Lajas referred to in certain titles, but whose location is not identifiable in
thesubmitted evidence.This isthe subject of myfirst reservation. The sec-
ond one concernsthe location the Judgment assigns to Cerro La Bolsa,
which in 1837the owners of Nombre de Jesus recognized as being the
boundary between their hacienda and the surveyed lands of the 1838
Honduras republican La Virtud title. The demonstration made by the
Judgment asto the location of Cerro La Bolsa provides an explanation,
but 1am inclined to think, in the light of other pieces of evidence, that
Cerro La Bolsawas probably fartherto the south of Portillo de Las Lagu-
netas than indicated in the Judgment. As a result of this Cerro La Bolsa
choice, another controlling factor of the administrative colonial boun-
dary, namely Barranco Blanco, has practically disappeared from the
scene.This,as 1 said, givesrise to my second reservation.Thirdly, the fact
remains that, according tothe evidencebefore the Chamber, quite a num-
ber of colonial and post-colonial effectivitésof Honduras took place in
areas to the Westof the river Gualcuquin or El Amatillo. It is really diffi-

cult to visualize, particularly inthe light oftheinformation concerning the
colonial surveys of Lacatao, in the 1837Honduran republican survey of
La Virtud and the 1843Honduran republican survey of El Palo Verde,
how al1of thiscould have happened in areas situated to the east ofthe line
defined by the Judgment. This is the subject of my third reservation.
Finally, information before the Chamber indicates the existence of some
Honduran settlements in the area to the West of the Gualcuquin or
El Amatillo river, as the Judgment itelf recognizes in the case of El Pal-
mito. This givesrise to my fourth reservation.

51. All these and other considerations would suggest a utipossidetis
juris line in the area reaching the Gualcuquin or El Amatillo river much
fartherto the south. Atthe same time, the reasoning of theJudgment does
provide, as indicated, an explanation ofthe choicemade, and 1admit that
there isroom for different constructions ofthe 1821utipossidetisjurisline
in the area. Thus, having made the above observations and reservations, 1

do not pursue them to the point of dissociating myself from the other
members of the Chamber in the voting, bearing particularly in mind that
thefrontier line defined bytheJudgmentforthe rest of thethird land sec-
tor is definitely an 1821 utipossidetisjuris line and, therefore, a dejure
solution.(c) 7hefourth sectorofthelandboundary(Naguaterique/Colomoncagua)

52. 1consider the whole ofthe frontier linedefined bytheJudgmentfor
thissector as an 1821utipossidetisjuris line exceptwith respect to the seg-

ment ofthe line represented bythe LasCafiasriverline, particularly to the
south of the Torola lands. Along the western border of Torola/Colomon-
cagua lands,the "Las Cafias line" oftheJudgment possesses itsjustifica-
tion in the sense that it represents a possible interpretation of colonial
documents, particularly, although not exclusively, of the 1743Torola re-
survey. The "Las Cafias line" and the "Masire line" could both, in my
opinion,constitute, through interpretation, the 1821utipossidetisjurisline
inthe area. The information in the case-file provides elements in support
of both alternatives. The Chamber madethe choice reflected intheJudg-
ment on grounds explained therein. In so doing, it had to disregard
altogether some main controlling factors of the line indicated in the
colonial documents concerned, the Torola title included, in particular
LaCruz (Quecruz or LosPicachos),whose geographicallocation isrecon-
structed by the Judgment. Having said that, 1have no more observation

to make on the "Las Cafias line" in that segment, namely in the area
covered by the 1743Torola re-survey, except to add that in any case the
frontier line does not reach El Alguacil Mayor, leaving the Las CaÏias
river at Las Piletas.

53. The situation seems to me quite different so far as concerns the
"Las Cafias line" running south from the Torola lands to the Mojon
of Champate. 1have been unable to findany 1821utipossidetisjurisjusti-
fication forthis segment ofthe "Las Caiias line" defined bythe Judgment.
The surveyor of the 1743Torola lands indicated clearlyin his surveythat,
once he reached Portillo of San Diego, he changed his coursefrom south

to north and with 40cordsreached a place called LasTijeretas, and along
the same path with24cords hecame to aravine-likebank ofthe LasCaiias
river - reaching finally MonteRedondo. Atthat point of his description,
the surveyor addedthe following to the text :"to here1 have been border-
ing on thelands of Colomoncagua". In other words, the 1743Torola land
surveyor istelling us in the text of the re-survey that, in his itinerary from
Las Tijeretas to Monte Redondo he was bordering on Colomoncagua
lands. What is the only possible conclusion to be drawn from the above
reference in the 1743Torola re-survey? That to the south of a line going
from LasTijeretasto the ravine-like bank ofthe Las Canas riverthere were
Colomoncagua lands al1 the way. Now, if the Colomoncagua lands
reached the place called Las Tijeretas, how could the "Las Cafias line"
between the Torola lands and Mojon of Champate be the 1821utipossi-
detisjurisline? To me this is an impossibility. Moreover, the fact thatthe

Colomoncagua lands reached Las Tijeretas is fully confirmed by several
colonial titles and documents in addition to the 1743Torola re-survey658 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

II. THEISLAND DISPUTE
A. TheQuestion of the Definitionof theIslands "inDispute''.
The"Non-ExistingDispute"Objection Submitted by Honduras

56. Honduras asked the Chamber to declarethat only Meangueraand
Meangueritawereindispute between the Parties andthatthe Republic of
Honduras had sovereignty over them. El Salvador maintained that the
Chamber should declare that sovereignty over al1the islands within the
Gulf (except Zacate Grande and the Farallones), and in particular over
the islands of Meanguera and Meanguerita, belonged to El Salvador.
Only Honduras, therefore, requested the Chamber to make a finding on
thedefinition ofislands "in dispute" asa preliminaryto thedetermination
of sovereignty over them, through a "non-existing dispute" objection.
El Salvador's submission simply presumed that al1the islands of the

Gulf of Fonseca were "in dispute", Zacate Grande and Los Farallones
excluded.
57. That the "dispute" must be a real one is a basic tenet of interna-
tional judicial law, one also incorporated in the Statute of the Intema-
tional Court of Justice. According to thejurisprudence of the Court and
doctrine, the "dispute" must exist in order to be susceptible of adjudica-
tion. Nothing would be more detrimental to the development of "judicial
settlement", and more disruptive to the stability of intemational relations
in general,than to allow adjudication on "phantom disputes". Interna-
tionalcourts and tribunals have the dutyto remain vigilant inthis respect,
particularly at a moment when States appear to be more ready than inthe
past to have recourse to "judicial settlement" asapeaceful means of solv-
ingtheir "real disputes". Asborne out bythe Permanent Court of Interna-
tional Justice, "the existence of.. .adispute" has to be "established"
before proceedings are instituted(Electricity Companyof Sofia and Bul-
garia, Preliminary Objection,P.C.I.J.,Series A/B, No. 77,p. 83. See also
Pajzs,Csaky,Esterhazy, P.C.I.J.,SeriesA/B, No.68,p. 61).This represents
also thejurisprudence of the present Court, in whose eyes whether a dis-

pute exists or not is a matter of fact for objective determination by the
Court itself, one dependent neither upon a subjective statement by one
party that a dispute exists, nor upon an equally subjectiveenial by the
other (Interpretationof PeaceTreatieswithBulgaria,Hungaryand Roma-
nia, I.C.J.Reports 1950,p. 74; South WestAfrica, Preliminary Objections
cases, I.C.J. Reports 1962,p. 328; NorfhernCameroonscase, I.C.J.Reports
1963, p.27).Thisjurisprudence wasrecently reaffirmed bythe Court inits
Advisory Opinion on the Applicabilityof the ObligationtoArbitrate under
Section21 of the United Nations Headquarters Agreemeno tf 26June1947
(I.C.J.Reports 1988,p. 27).The existence of a dispute is,therefore, a pre-
requisite for adjudication which muststand objectivelyand, consequently,
be appraised bythe Court taking intoaccount al1the circumstances of the
case, independently of the pleadings, arguments and submissions of the
Parties and of the head or title ofjurisdiction concerned. 58. None of these circumstances, either of fact or law, including any
questions relating to the interpretation of jurisdictional instruments or
clauses, to the admissibilityofaclaim or eventothe seisinofthe Court, are
apriori alien to adetermination whether or not an "international dispute"
exists. But the question of whether a dispute exists cannot be wholly sub-
sumed under the headings of jurisdiction or admissibility, particularly
when a "non-existing dispute" objection becomes the subject of a formal
submission byaParty. In answeringasubmission ofthis kind,jurisdiction
and admissibility may form elements to be considered,but not necessarily
or exclusively. All other circumstances relevant in casu must also be
assessed by the Court. Moreover, the disposal of a non-dispute objection
is, normally,preliminaryto any discussion as to the scope ofjurisdiction.

59. 1do not see in theinstant caseany ground for the Chamber to have

proceeded otherwise. The Chamber should have appraised whether or
not the constitutive elements of an adjudicable dispute in the case of
islands other than Meanguera and Meanguerita were objectively present.
Thejurisprudence of the present Court, since 1950,reveals that what is
important in this respect is the existenceof a "conflict of legal views" on
the matter at issue. The Court has thus established a sharp distinction
between that condition and the mere "conflict of interests" also men-
tioned by the Permanent Court in its 1924Judgment in the Mavrommatis
Concessionscase(P.C.I.J., SeriesA, No.2,p. 11).Today, therefore,the con-
stitutive element par excellenceof an "international dispute" susceptible
of adjudication isa "conflict of legal views"; namelytwo conflicting juri-
dical positions, which must furthermore be plainly and clearly established
and manifested by the contending States beforeproceedingsare instituted
(see, for example, I.C.J. Reports 1950, p. 403; I.C.J. Reports 1957,
pp. 148-149;I.C.J.Reports1959,pp. 20-22; I.C.J.Reports 1960,pp. 33-36;
I.C.J.Reports 1962,p. 328; I.C.J.Reports 1963,p. 27 ;I.C.J.Reports 1972,
pp. 61-69; I.C.J. Reports 1974,pp. 259-263 and 463-467). In the present

case, to make ajudicial finding on the question raised by the Honduran
submission, the Chamber should have enquired if it might be said that,
before the conclusion and notification of the Special Agreement, there
was objectively a manifest and established dispute as to sovereignty over
islands other than Meanguera and Meanguerita between the Parties. This,
and onlythis, was the question at issue forajudicial answer to be givento
the "non-existing dispute" objection of Honduras.

60. TheJudgment follows, however, a different path. It disposes of the
Honduran question by combining the real issue, namely whether there
was an "existing dispute" on sovereignty over islands other than Mean-
guera and Meanguerita before the institution of proceedings, with the dif-
ferent matter of the scope ofthejurisdiction vested inthe Chamber byvir-
tue of paragraph 2 of Article 2 of the Special Agreement. As a result ofthis combination,the reasoning of the Judgment is,as could be expected,
farfrom clear and leads,ultimately, to quite an embarrassing procedural
situation where its conclusion on El Tigre island is concerned. To imply,
for example, that at the date of the Special Agreement (24 May 1986)al1
the islands were, at least formally, in dispute is, indeed, quite surprising,
on the objective basis ofthe information contained inthe case-filefrom an

"existing dispute" standpoint. The case-file shows, to Saythe least, that
there wasatno momentany manifested conflict of legalviewsbetween the
Parties concerning sovereignty over the Nicaraguan Los Farallones or
over Salvadorian islands such as Conchagüita, hnta Zacate or Martin
Pérez.Moreover,this conclusion begs the question at issuehere, because
that question isnot to determine what islands were "formally" in dispute,
but what islands were "actually", or "really" in dispute, as to sovereignty,
when the Special Agreement was concluded and notified to the Court.
The surprise increaseswhen theJudgment itself distinguishes veryrightly
between "jurisdiction" and "exercise ofjurisdiction", and between a "for-
mal claim" and a "real claim", in order to put aside El Salvador's sover-
eigntyclaim with respect to islands which have not evenbeen the object of
pleading before the Chamber, notwithstanding the Chamber's finding on
the scope of the jurisdiction over the island dispute vested in it by Ar-
ticle 2,paragraph 2,of the Special Agreement. To have made this distinc-
tion alreadyimplied the necessity of prese~ing the difference between the
"scope ofjurisdiction" question andthat ofthe "existence ofadispute". If

a dispute is not an "existing dispute" it should not be madethe subject of
adjudication even ifitwould be said to faIlwithin thescope ofthe compe-
tence granted under the head ofjurisdiction concerned.

61. For reasons of its own, theJudgment, however, prefersto adopt the
scope of jurisdiction as its general point of departure: a point which
createsthereafter a number of contradictions between the "broad" initial
conclusion as to the said scope of jurisdiction and the "narrow" conclu-
sion which follows asto the islands really "in dispute". In fact, the Judg-
ment finally adds a singleisland,El Tigre, as being in dispute to the two
islands that both Partiesconsidered to be inthatcondition, namely Mean-
guera and Meanguerita, concluding therefore that only threeislandsare
the subject of a "real dispute" notwithstanding itsbroad interpretation of
the wording of Article 2, paragraph 2, of the Special Agreement. More-
over, any extension ofthe island dispute to islands other than Meanguera

and Meanguerita is supposed to have taken place as from 1985 only,
namely as fromthe Notes exchanged bythe Parties in January and March
of that year. Before 1985Meanguera and Meanguerita were,according to
the case-file and apparently alsothe Judgment, the only islands "in dis-
pute" between the Parties. Now, it happens that, as the Judgrnent recog-
nizes, the same form of words, namely "lasituacionjuridica insular",is661 DISPUTE (ELSALVADOR/HONDU(R SEP). PTORRES BERNARDEZ)

used in the 1980General Treaty of Peace. What does this suggest? It sug-
gests thatin 1980the Parties to the Peace Treaty did not see the need to use
a "more precise expression" than la situacionjuridica insular in order to
describe a dispute over two islands (Meanguera and Meanguerita) only.
The relationship established by the Judgment between the number of
islands "in dispute" and the alleged requirement of a "more precise
expression" seems, therefore, unconvincing, to say the least.
62. The question is not whether the expression used in the Special
Agreement ("la situacion juridica insular'y precludes either Party from
exempting a particular island from consideration by the Chamber. The
real challenge raised by the objection of Honduras lies in the point that,
whatever the intentions of the Parties when adopting such an expression
might havebeen, the Chamber itselfcannot adjudicate exceptas to islands
whose sovereignty is really"in dispute" between the Parties, and this must

be objectively ascertained on the basis ofl1the elementsprovided by the
case-file,Special Agreement and Peace Treaty included. Moreover, we
are not here inthe presence of acase,such as Polish UpperSilesia(P.C.I.J.,
Series A, No. 6, p. 14),in which the background conventions concerned
allowedrecourse to the Courtas soon asone ofthe Partiesconsidered that
it had "a difference of opinion". Not atall.Thepreamble of the 1986Spe-
cial Agreement and Article 31of the 1980Peace Treaty both refer to exist-
ing "differences" or "controversies" between the Parties as the subject of
the present litigation.A"difference of opinion" is not enough to form the
substance of adjudication inthe present case. It isnecessarily with respect
to an "existing dispute", namely "a manifested conflict of legal views"
between the Parties as to sovereignty over each or any of the islands, that
the Chamber is empowered to make an adjudication.

63. Except for the islands of Meanguera and Meanguerita, however,
no such existing dispute emerges from the case-file before the Chamber.
No dispute as to the sovereignty over other islands, nor any established
and manifest conflict oflegal viewsthereon, appears to exist on that basis.

The attempt made by El Salvadorin its Note of 24January 1985,namely
some years afterthe conclusion of the Peace Treaty, toextend thedispute
to other islands, particularly El Tigre, was nothing more than a tactical
move. The Honduran Note of 11 March 1985clearly and categorically
excludes any admission by Honduras of the existence of a "dispute" over
islands otherthan Meanguera and Meanguerita, and the Note of El Sal-
vador of January 1985 alone is unable by itselfto create such a dispute,
given the prior recognition by El Salvador, expressly and by conduct, of
the sovereignty of Honduras over ElTigreand itsother islands inthe Gulf.

64. El Salvador has argued that Honduras, when concluding the Spe-
cial Agreement in May 1986,was aware of the position of El Salvador
concerning ElTigre and other islands within the Gulf of Fonseca and that,
nevertheless, Honduras accepted the word "insular"("of the islands") in662 DISPUTE (ELSALVADOR/HONDU(R SEPS.P. TORRES BERNARDEZ)

Article 2,paragraph 2, of the Special Agreement. This Salvadorian argu-
ment is far from persuasive. It applies, in any case to El Salvador itself,
which in May 1986was also aware of the Honduran Note of March 1985
and of its own recognition since 1854of El Tigre and other islands as
belonging to Honduras ;particularly so, because Article 2,paragraph 2,of
the Special Agreement does not mention either "al1the islands" and/or
"El Tigre island", but just says "of the islands" in general. The "lack of
specification" argument is indeed quite contrary to El Salvador's posi-
tion, because the general reference to "the islands" or the Spanish word
insula ira special agreement notified to the Court can only refer to
islands "in dispute" between the parties. El Salvadorhas not offered the
Chamber proof that islands other than Meanguera and Meanguerita were
in this legal situation in May 1986,a proof which exists in the case of

Meanguera and Meanguerita.
65. As a matter of fact, the submission of El Salvador does not corre-
spond at al1with its arguments and submitted evidence, which concen-
trated on Meanguera and Meanguerita, namely on islands in dispute
before and after the conclusion of the 1980Peace Treaty. If there is any
empty "formal" question before the Chamber, itisthe verysubmission of
El Salvador that the Judgment reconstructs, unwarrantedly in my opin-
ion, by in fact equating the"al1islands claim" with an "El Tigre claim".
With al1due respect, 1do not think that this isatask which properly fallsto
a Chamber of the Court. El Salvador is not asking for sovereignty over
El Tigre, but for sovereignty over al1the islands in the Gulf of Fonseca
except Zacate Grande and Los Farrallones. It isnot the role of the Cham-
ber to reformulate the submissions of the Parties. The only distinction
that, inthe light ofthe wording of the submission, the Chamber isentitled

to draw isbetween, onthe onehand, Meanguera and Meanguerita,and on
theotherhandthe restofthe islandsclaimed, because ofthe words "and in
particular". But the Chamber is not entitled to narrow the submission
downtoone confined to Meanguera and Meanguerita plus ElTigre.

66. In any case,until January 1985there isnot the slightest information
in the file as to the existence of any "island dispute" going beyond the
question of sovereignty over Meanguera and Meanguerita, pending as
from 1854.Why and when did this alleged "new" island dispute arise
between the Parties?There isno answerfrom ElSalvador to thisquestion.
It isindeed peculiar that, inthe middle ofimplementinga peaceful means
ofsettlement in execution of an obligationassumed in a PeaceTreaty con-
cluded through a long procedure of mediation aiming to put an end to
"existing" disputes between the Parties, "new" disputes came into being

because of a single diplomatic note of one of the Parties, soastoadd new
islands to those in dispute before. It must be added that the Salvadorian
Note ofJanuary 1985leftunspecified, except for ElTigre,the number and
denomination ofthe islands supposedly "in dispute" andthat ElSalvador
has not been more specific since, not even in the proceedings before the
Chamber. Neither does the "al1islands" claim in the submission of El Sal-663 DISPUTE (ELSALVADOR/HONDU(R SAEP). PTORRES BERNARDEZ)

vador specify the islands in dispute, not even El Tigre island, apart from
Meanguera and Meanguerita.

67. The lack of argument on the alleged "al1islands" existing dispute
claim (Zacate Grandeand Los Farallonesexcluded) suffices in itselfto set
aside this claim of El Salvador as theJudgment actually does. Onthe "al1
islands" claimtaken as such there was no specific, stilllesscomprehensive
argument,there was no argument or evidence at all! It was, on the other
hand, a submission conducive to results manifestly absurd or unreason-
able, as it would be for the Chamber to have adjudicated on sovereignty
over islands situated even in the Bays of Chismuyo or San Lorenzo or in
the eastem part of the Gulf of Fonseca! And, above all, it was a sub-
mission which found no support in the circumstances,historical or other-
wise, of the "island dispute" as it evolved between the Parties. The
Judgment, in its own way, ultimately reaches a correct conclusion where

the existence or not of an"al1islands" dispute isconcemed and therefore,
indirectly, on the "undetermined zone" argument advanced by the Sal-
vadorian Note of 24January 1985, a concept that inthe case of the island
dispute was alien to both the Special Agreement and the Peace Treaty.

68. Unfortunately, the Judgment fails to apply that conclusion to
El Tigre island, namely one of the islands included inthat very claim. It is
true that, in the pleadings and at the hearings, El Salvador pressed its
claim to El Tigre with arguments in support,and it is likewise correct that
El Tigrewas specifically mentioned, in addition to Meanguera,inthe Sal-
vadorian Note of 24 January 1985. Consequently, the explanation of
"lack of argument" by El Salvador cannot, by itself, dispose of thematter

sofaras El Tigre is concerned. But other considerations should have led
the Chamber to reach with respect to El Tigre the same finding as that in
the case of the alleged"al1islands" dispute. In the first place, to give an
answer to the "non-existing dispute" objection of Honduras with refer-
ence to El Tigre - if one accepts the proposition as the Judgment does
that itis procedurally possible to detach that island from the "al1islands"
claim of El Salvador - it would first have been necessary, in any case, to
examine the matter in apreliminary manner,because ofthe "nature" ofthe
Honduran objection as well as of the counter-arguments of Honduras
which,as recognized bytheJudgment, were directedtoshowing that there
was no dispute over El Tigre, and to nothing else. All the evidence and
argument relatingto El Tigre island were certainly to be considered in the
reasoning of the Judgment, but for a purpose different from the one ad-

vanced by that reasoning, namely forthe purpose of determining whether
a "real dispute" existedbetween the Parties asto sovereigntyover El Tigre.
Then, butonly then,could the Judgment eventually have entered into the
substantive question of sovereignty over El Tigre. In this connection, 1must Saythat 1do not understand the statement to the effect that Hondu-

ras had not presented its contention that Meanguera and Meanguerita
alone were in dispute as a "preliminary" to the adjudication of sover-
eigntyoverthe islands in dispute. The factremains thattheproper context
for testing the possible interaction of this contention with the terms of
Article 2, paragraph 2, of the Special Agreement was consideration of
the "preliminary question" itself, which the Chamber should not have
treated mainly as a matter of interpreting the Special Agreement for the
purpose of establishing the scope of the jurisdiction vested in :tHondu-
ras had not raised an objection asto the "scope ofjurisdiction" but anon-
existing dispute" objection.

69. Ifthe Chamber had respected that context, asrequired bythe preli-
minary character of the objection of Honduras, the conclusion would
have been inescapable, because of successiverecognitions by El Salvador
of Honduran sovereignty over El Tigre, beginning with the Note of
12October 1854from the Foreign Minister of El Salvador to the Foreign

Minister of Honduras, as recognized by the eminent Salvadorian San-
tiago Barberena, aswellas, for example, in an 1874communication ofthe
Deputy Chief of the Salvadorian Army and in the 1884unratified Cruz-
Letona convention. El Tigre was, furthermore, as recognized by El Sal-
vador itself, taken into account as "Honduran coast" for the purpose of
tracing the equidistance line of the 1900maritime delimitation between
Honduras and Nicaragua, a delimitation that the Judgment rightly con-
cludes to havebeen acknowledged or recognized by ElSalvador. Further-
more, inthe presentproceedings, a final formal submission of ElSalvador
asks the Chamber to determine that the legal situation of the maritime
spaces within the Gulf of Fonseca correspondsto the legal position estab-
lished by the Judgement of the Central American Court of Justice of
9 March 1917.Now,this Judgement Statesexpressly that the 1900Hondu-
radNicaragua delimitation is part and parce1of the legal situation of the
maritime spaces within the Gulf of Fonseca, as indeed the present Judg-
ment also does. In these circumstances, the statement in El Salvador's
Note of January 1985to the effect that 'parmilesautresîlesse trouvecelle

du Tigre,quiest salvadorienneetsurlaquelleleHondurasa desprétentions"
is not, under international law, an act capable of negating al1the previous
and present recognitions so as to establish thereby a "new" dispute con-
cerning ElTigre island susceptible of ajudicial determination.

70. The sovereignty of Honduras over El Tigre has also been recog-
nized bythird States as from the 19thcentury, as is proved by theepisode
of the British intervention in the islands of the Gulf of Fonseca
(1848-1849). Honduras, on the other hand, always considered that
El Tigre belonged to it and acted thereon à titrede souverainsince inde-pendence in 1821,as proved by the submitted evidence analysed in the
present Judgment.There is no longer,therefore, any sovereignty around
to be adjudicated bythe Chamber inthe caseof ElTigreisland.The matter
was decided bythe 1821utipossidetisjuris over 170years ago as wellas by
the recognition of El Salvador and third Powers over 140years ago. If
adjudication of so-called "forma1disputes" is always tobe excluded, the
adjudication of a "formal dispute" without an "object" is an even less
acceptableproposition.

71. In the light of the above, 1uphold the Honduran submission that
the only islands "in dispute" are Meanguera and Meanguerita. 1 have
voted, consequently, against the decision of theJudgment which declares
ElTigre tobe an island "in dispute" inthe present proceedings. Likewise,
1 have voted against the operative subparagraph of the Judgment which
decides that the Parties, by requesting the Chamber in Article 2, para-

graph 2,of the Special Agreement "to determine the legal situation of the
islands", conferred upon the Chamber jurisdiction to determine, as
between the Parties, the legalsituation ofal1islands inthe Gulf ofFonseca
irrespective of whether or not they were actually "islands in dispute". In
pronouncing this decision the Chamber is answering itself,because none
of the Parties has requested the Chamber to make any such judicial
pronouncement. This is the result of not having dealt properly with the
"non-existingdispute" objectionsubmitted by Honduras. The Chamber's
reasoning has led it to the awkward situation of having to adjudicate
sovereignty over El Tigre island to Honduras without having been
requested bythat Party to do so,thus providingakind of "confirmation of
sovereignty". But the fact remains that the Chamber was not entitled to
deliverthis "confirmation", because that island was not an island "in dis-
pute" between the Parties and was not,therefore, susceptible of adjudica-
tion by the Chamber. Last but not least, the reasoning of the Judgment,
whileasserting thatthe Chamber had been givenjurisdiction todetermine
the legal situation of "al1the islands" in the Gulf of Fonseca through Ar-
ticle 2, paragraph 2, of the Special Agreement, as read in a certain way,

completely fails to state the grounds for this exegetical conclusion. The
rules of international law governing treaty interpretation are not even
mentioned ! What the Judgment offers is simply a certain textual reading
of the relevant provision of the Special Agreement, not a legal interpreta-
tion of the provision concerned. 1will revert to this question of how the
Special Agreement should be interpreted in the part of this opinion
devoted to the "maritime dispute".

B. me Questionof the 'lpplicable Law"

72. Throughoutthe proceedings, the Parties have been deeply divided
concerning the "law" applicable to the "island dispute". Honduras has666 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

consistentlyclaimed that this aspect of the case should alsobe decided by
the Chamber on the sole basis of the 1821utipossidetisjuris. Theattitude
of ElSalvador hasbeen lessconsistent. There werefluctuations and ambi-
guities in El Salvador's presentations of the law applicable to the island
dispute. The doctrinal distinction between "attribution of sovereignty"
and "territorial delimitation" has been referred to by El Salvadorin order
to make the Chamber applyto the "island dispute" a law different to the
one applied to the "land boundary dispute", notwithstanding the factthat
no distinction ismade inthisrespectby Article 5 ofthe SpecialAgreement

and the generallyaccepted proposition, recognized bytheJudgment in its
introduction to the land boundary dispute, that the uti possidetis juris
principle is susceptible of application to frontier delimitation disputes as
well as to attribution of territory dispute1.therefore read with surprise
the statement intheJudgment to the effectthat ElSalvador's claim "onthe
basisof theuti possidetisjuris isthatifisthesuccessorof theSpanish Crown
in respect ofal1the islands of theGulf'!(Paragraph 330 in the reasoning;
emphasisadded.) The Judgmenthere takes upon itself a reformulationof
El Salvador's argumentonthe law applicable to the island dispute, a pro-
ceeding that in my submission is more than questionable in a contentious
case.
73. In fact, El Salvador asked the Chamber to apply tothe "island dis-
pute" theprinciple of "historictitle"and theprinciple of 'beacefulandcon-
tinuousexerciseofState authority".Itwassosummarized atthe hearings in

a miseaupoint made by the Agent of El Salvador. It may be arguablethat
these wouldbe the onlyprinciples applicable to theislanddispute, butthe
statement by the Agent of El Salvador was no doubt a clarifying state-
ment. However, at further public sittings certain statements by counsel
reintroduced into the picture the original obscurity of the pleadings of
El Salvador on the matter. Thus, a few days later, counsel for El Salvador
alleged the existence of a link between the "historic title" alleged by
El Salvador and the 1821utipossidetisjuris. As counsel put it:

"El Salvador isable to rely on effectivepossessionof the islands as
the basis of its sovereignty thereof on the grounds that this is a case
where sovereignty has to be attributed; equally,El Salvador is able
to rely on historical Forma1 Title-Deeds as unquestionable proof
of its sovereignty of the said islands inaccordance with theprinciple
oftheuti possidetis juris asitoperatedin1821."(C4/CR91/33, p. 10;
emphasis added.)

74. The firstqueryraised bythisassertion is,of course, whywas El Sal-
vador notjust askingfortheapplication ofthe 1821utipossidetisjuris?But
the answer to thisquery isnot thepoint to beconsidered now. Thepoint is
the relationship between the "historic title" alleged by counsel, essentially
the RealesCédulasof1563and 1564,and the 1821utipossidetisjuris,when
the counsel concernedadmitted, thereafter, the possibility of an evolutionin Spanish colonial law, as wellasthat such an evolution didtake place in
casu. 1 have to confess that 1 am absolutely incapable of reconciling the
resulting contradiction. The noms of international law not being elabo-
rated unilaterally by a party in the course of a judicial procedure, one
would be entitled to believe, phraseology excepted, that counsel was then
suggestingthat ElSalvador was comingback to the 1821utipossidetisjuris
invoked by Honduras. Thissentiment was,however, evanescent, because,
soon after, another counsel for ElSalvadormadethe following statement :

"the Chamber must examine whether it is merely to apply to the
islands the principles of the Latin Arnerican utipossidetisjuris that it
applied in the first part of the case concerning the land frontier dis-
putes or whetherotherlegalstandards are tobe used"(C4/CR 91/33,
pp. 62-63 ; emphasis added)

- and thiscounsel concludedthatthe Chamber should followthe second
alternative. The Chamber has, of course, to apply the noms of interna-
tional law applicable between the Parties to the island dispute. Again,
however, this is not the point at the moment. The problem is: how to
reconcile this second statement by counsel with the first statement by
counsel, and both statements with the previous statement by the
Agent of El Salvador?
75. The contradiction in the statements referred to above, with its
resulting perplexities, iscertainly not the kind of explanation which could

be expected in order to clarify the meaning of the "hhtorictitle"and the
"peacefuland continuousexercise of State authority"referred to by the
Agent of El Salvador. Furthermore, El Salvador did not ask the Chamber
to apply these principles as such, whatever the meaning attached to them
by ElSalvador mightbe, but a "systemof1aw"ofitsown making. The need
to have recourse to this concept of "system" derived, in al1probability,
from the factthat neither ofthe said twoprinciples are ininternational law
autonomousmeans of acquiring territory. They may serve, in certain cir-
cumstances, for that purpose, but applied separatelyfromeachother they
are unable to yield sovereign rights over territory vis-à-visanother State,
particularly when, as in the instant case, the other State - as willbe con-
sidered below - has utipossidetisjuris rights in the islands concerned. It
follows that the need to construct a "system of law" was an obvious con-
sideration which El Salvador tried to satisfy by stating that the principles

invoked gave each other mutual support. But this would not be enough
either. In order to be able, under international law, to convey sovereign
rights over territory to a given State, and to do so even in the legal and
factual circumstances of the present case, the two principles mustat least
combine,theymust operate together incasu.Furthermore, the "system" of
lawproposed by El Salvador contains an important gap :what to do ifone
of the two principles yields results which contradict results yielded bythe
other? This is not a theoretical hypothesis, but a real one in the light ofEl Salvador's claim to "al1islands" (Zacate Grande and Los Farallones
excluded). El Salvador presupposesthat there would not be such a con-
tradiction. This begsthequestion. Ajudicial body isnot entitled, however,
to apply theaprioriassumptionsor presuppositions of a Party, but objec-
tive noms as defined by international law or by both parties to the case.
This lacuna alone would be enough, in my opinion, to dispose of the
applicable law construction of El Salvador concerning the "island dis-
pute" as a "system". Butthere is more to the matter.

76. The twoprinciples constituting the applicable lawsystemproposed
by El Salvador do not correspond to the legalor defactosituation existing
in al1the islands that El Salvador is asking for in its submission. The evi-
dence in the case-file is crystal clear. Ttis also evidence in the "public
domain". For example, El Salvador is not exercising any peaceful and
continuous State authority, or any other kind of authority, in the Hon-
duran islands which it is asking for except one, namely Meanguera. Two
alternative conclusions logically follow. The first:might not El Salvador,
after all, be asking the Chamber to apply separately each of the two prin-
ciples invoked by it according to the legal or defacto situation which may
exist in each of the islands concerned? An affirmative reply to this ques-
tion would not only destroy the suggested "system", but would also imply
the unwarranted proposition that the Chamber should apply different
principles or rules selectivelyto each and everyone ofthe islands claimed
by El Salvador. The second alternative would be to ask oneself: is there,
after all, an indirect but clear admission by El Salvador that not "al1the
islands", which the submission of El Salvador presupposed to be in dis-

pute, are actually or really islands "in dispute" between the Parties,even
in the eyesof El Salvador? An affirmativeanswer to this second question
would rejoin the conclusions ofthis opinion onthe "non-existingdispute"
objection of Honduras (paras. 56-71above). Ifthe replies to the questions
are negative, one cannot but conclude that "historictitleHand'beacefuland
continuousexerciseofState authority"are principles that El Salvador calls
on the Chamber to apply to al1the islands which may be in dispute, with
al1the ensuing legal consequences whateverthey may be.

77. Theapplicable law system suggested by ElSalvador with regard to
the islanddispute isextremely fragile inaddition to having, inmyopinion,
scant operative value, ifany, in the circumstances ofthe present case.One
could have expected, therefore, a much clearer pronouncement on the
matter in the Judgment. The reasoning of the Judgment fails however to
addressthe subject in astraight and clear-cut wayasitshould. 1dissociate
myself,therefore,from themanner inwhichthis important question ofthe
definition of the "law applicable" to the island dispute is treated in thatreasoning. It is truethat, as requested by Honduras,the Judgment begins

by referring to the utipossidetisjuris principle, but it does so essentially in
a merely descriptive manner without even analysing the incomplete listof
colonial documents recorded. How could the utipossidetisjuris principle
be put aside, for al1practical purposes, in the island dispute, in the light of
the wording of Article 5of the Special Agreement and the interpretation
given by the Parties, in the context of the landboundary dispute aspect of
the case,to the expression therein :"therulesofinternationallawapplicable
between theParties"? If the Judgment had pursued its initial attempt with
respect to theapplication of the utipossidetisjuristo the islands in dispute
right through to its unavoidable judicial conclusions, much concerning
the applicable law would have been clarified, including the merits of the
system proposed by ElSalvador as an alternative to the 1821 utipossidetis
jurisproposed by Honduras. These grave shortcomings in the reasoning
of theJudgment leaveme no alternativebut to develop in detail below my
own views on the matter with respect to the three main principles or ele-
mentsinvoked bythe Parties,namely the "historic title", the "utipossidetis
jurisWandthe "peaceful and continuous exercise of State authority".

(a) The"historictitle"invokedby ElSalvador

78. The bases of the "historic title" invoked by El Salvador are the
Reales Cédulasof 1563and 1564concerning the Gobernacion of Guate-
mala. In the words of counsel for El Salvador these Reales Cédulas consti-
tute the "original colonial title" which is the foundation of the claim of
El Salvador to sovereignty overal1the islands within theGulfof Fonseca.
The Reales Cédulasconcerned place the Gulf of Fonseca area, including
Choluteca and Nacaome, under the jurisdiction of the Gobernacion of
Guatemala. Both were adopted in connection with the decision of the
Crown to divide the territories of the first Real Audiencia of Gracias a
Dios/Guatemala between the Real Audiencia of Nueva Espafia (Mexico)
and the Real Audiencia established thereby in Panama. This situation
lasted a few years only, namely until the Real Audiencia of Guatemala
was definitely re-established in Santiago de Guatemala (1568) and the
Captaincy-General or Kingdom of Guatemala consolidated itself as
the main administrative unit of the Spanish Crown in Central Arnerica.

79. TheGobernacion of Hondurasand the Gobernacion ofGuatemala
had been created in the 1520s,the second a few years later than the first,
and the territorial scope of the original Gobernacion of Honduras com-
prised, inter alia, the areas not only of Tegucigalpa, Choluteca and
Nacaome, and the islands of the Gulf of Fonseca discovered in 1522,like
the Gulf itself,byAndrésNifio,amember ofthe expedition of Gil Gonza-
lez Davila(thefirst holder of theGobernacion of Honduras by virtue of a
CédulaRealof 1524),but also areas to the south-west of the present terri-
tory of the Republic of Honduras in the region. It was within the territori-ally ill-defined areas of the original "Gobernaciones"granted by the
Crown to the first conquistadores/gobern aatothesCrown camed

out, once discovery and conquest were accomplished, the administrative
territorial sub-divisions of the Captaincy-General of Guatemala (not to
be confused withthe former Gobernacion of Guatemala) and ofthe Audi-
encia of Guatemala, namely the various provincias", "alcaldiasmayores",
"corregimientos""districts"and "alcaldiasordinarias"established in the
16thand 17thcenturies within the area of Central Arnerica concerned in
the present case. Furthermore, these latter territorial administrative sub-
divisions evolved during the three centuries of Spanishadministration in
accordance with successive decisions of the Crown. That evolution was
consolidated during thesecond part ofthe 18thcentury on the occasion of
theintroduction of the régime of intendenciasin Central Arnerica, as is so
well explained in the Arbitral Award made by the King of Spain on
23 December 1906 between Honduras and Nicaragua (see para. 15
above).

80. The geographical location of the territories concerned was a major
preoccupation in the historical evolution indicated. The ecclesiastical
jurisdictions ofthe Bishopricsalso played an important role inthe conso-
lidation of the process. El Salvador acquired a Bishopric after indepen-
dence in 1842, having been until that date under the ecclesiastical
jurisdiction of the Bishopric of Guatemala. Comayagua or Honduras,
however, had as from 1539its own Bishopric, which exercised its eccle-
siastical jurisdiction in the Province of Comayagua as well as over the

Alcaldia Mayor de Minas of Tegucigalpa established in 1578and, since
1672,over the town of Choluteca and the villages under its jurisdiction
which were detached that year from the Bishopric of Guatemala. The
town of Choluteca (founded in 1535by a lieutenant of Alvarado, the
conqueror of Guatemala) and the villages under its jurisdiction had
already for a long time, namely from 1580,been subject to the civiljuris-
diction of the Alcaldia Mayor de Minas of Tegucigalpa. The 1791Real
Cédula defined the territory of the Intendencia of Honduras as compris-
ingal1theterritories belonging to theComayagua orHonduras Bishopric,
including therein, therefore, the Province of Comayagua and the
Alcaldia Mayor of Tegucigalpa, together with Choluteca and the area
under itsjurisdiction. Itshould be noted that the Real Cédulaof 1791used
the denomination of "Alcaldia Mayor" of Tegucigalpa and not the old
original denomination, namely "Alcaldia Mayor de Minas" of Teguci-
galpa, which in the meantime had been modified.
81. To examine the "historic title" invoked by El Salvador it is not
necessary to go further into this broad description.l1the relevant data
are recorded in the case-file. It isahistoricallyestablishedfact that, in the
first part of the 16th century, the Gulf of Fonseca and its area were a
"crossroads" forthe ambitions ofthose then conquering and governing in
Mexico, Guatemala, Honduras and Panama, and that the Crown did
not yet possess at that time a precise picture of the geographical features671 DISPUTE (ELSALVADOR/HONDU SEAPS.)PTORRES BERNARDEZ)

of the region. The conflict of ambitions of the early conquistadores/
gobernadores, inthe region ofthe Gulf of Fonseca and itsneighbourhood,
orthe Crown's interventions to put an endto the conflicts resulting from
their wars and private arrangements between themselves, or the mea-
sures adopted by the Crown to find a convenient way of communication
between both oceans, are well-known stories which have no relationship
at al1with the determination by the Chamber of the legal situation of the

islands in the Gulf of Fonseca in dispute between the Parties, unlessit be
found that the concept of "historic title" invoked by El Salvador is an
admissible legal proposition under Article 5 of the Special Agreement,
namely a principle of international law applicable between the Parties in
the case.

82. Itwas,however,necessarytointroduce somebroad historical refer-
ences atthe beginning, because in El Salvador'spresentation the Cédulas
Reales of 1563and 1564are described not only as "historic title" but also
as "original colonial title". If, in the context of the present case, the con-
cept of "original colonial title" has any meaning 1think ithas none - it
should correspond to the first titles issued by the Crown in the relevant
area following the discovery of the Gulf of Fonseca by AndrésNiiio in
1522,namely the "Gobernaciones of Honduras" granted by RealesCédu-

las of the King in 1524and 1525to Gil Gonzalez Davila and to Diego
Lopez Salcedo respectively,both Cédulasembracingnot only the Gulf of
Fonseca but also the region of San Migueltothe east ofthe Lempa River.
Alvarado, on theother hand, acquired, bythe 1527Real Cédulahis "Gob-
ernacion of Guatemala". Once this point hasbeen put in itsactual histori-
cal perspective, one should then answer the issue of international law
raised for the Chamber by El Salvador'sinvocation of "historic title".

83. In order to conclude whether or not the "historic title" alleged by
ElSalvadorconstitutesa titleofinternationallawthatthe Chamber should
applytothe islanddispute, itisnecessaryto answerasimplegeneralques-
tion, namely :could itbe said that the Republic of El Salvador and/or the
Republic of Honduras are in possession of any "historic title" ofthe kind

invoked by ElSalvador because ofthe RealesCédulasof1563and 1564or
of any other Real Cédulaor Provisionprior to 1821? 1have the greatest
difficulty in understanding how such Cédulasor Provisiones Reales,
namely Spanish domestic law, may constitute a "historic title" of the
Republic of El Salvador or of the Republic of Honduras under interna-
tional law.In myviewneither ofthem arein possession ofan international
law "historic title"ecause of such Spanish domestic law. If they arenot
in possession of an international lawtitle ofthat kind,they obviously can-
not invoke it inthe currentproceedings.

84. There isno otheroriginal"historic title" around - asthe concept is672 DISPUTE (ELSALVADOR/HONDU(R SAESO.) TORRES BERNARDEZ)

understood and defined by international law - than the "historic title" of
the Spanish Crown which lapsed with the recognition by Spain of the
Spanish-American Republics. The Republic of El Salvador and/or the
Republic of Honduras are not exceptions. The "titles" that these two
Spanish-American Republics might have vis-à-vis each other are not the
(lapsed)"historic title" under international law of the Spanish Crown, or

any international title of Spain'smaking, but only and exclusivelythe title
or titles to sovereignty over territory vested in them either by the utipossi-
detisjurisor by any other norms ofinternational lawgoverning succession
of States which might be applicable.

85. Beyond that, there are no "titles", original, historic, colonial or
othenvise, that could be invoked by or apply to the Parties in the present
case. Under the "colonial régime",the original title of the SpanishCrown
wasan international lawtitle,but itwasnot shared bythe Spanish colonial
administrative units in America. Such units did not participate in such a
title. It isite inappropriate, therefore, to invoke inthe present case the

concept and principle of "historic title" in international law or to use
equivocal expressions which could convey the idea that there is floating
around some original "historic title" that the Chamber, if so inclined,
could applyto the "island dispute" dividing the Parties.

86. Asthe Arbitral Award of23January 1933concerning the Honduras
Borders (Guatemala/Honduras) case so rightly Stateswhen defining the
utipossidetis of 1821applicable to that case :

"Prior toindependence, each colonial entitybeing simply aunit of
administration in al1respects subject to the Spanish King, there was
no possession in fact or law, in a political sense, independent of his
possession. The only possession of eithercolonial entity before inde-
pendence wassuch ascould be ascribed toitbyvirtue of theadminis-
trative authority itenjoyed. Theconcept of'utipossidetisof 1821'thus
necessarily refers to an administrative control which rested on the
willofthe SpanishCrown."(United Nations, ReportsofInternational
ArbitralAwards, Vol. II, p. 1324.)

Ifthe Spanishadministrativecolonial entities in Spanish America had not
even a "possession" of theirown, itisdifficult,afortiori, toadmit that they
could have had an original "historic title" orthat they participated in the
"historic title"nder international lawof the SpanishCrown. It isfor this
fundamental reason - there are others - that,in my opinion, the juris-

prudence of the Minquiers and Ecrehos(France/United Kingdom)case is
alien to the island dispute of the present case. In that case, the original
"historic titles" invoked were mediaeval titles held subsequently by the
Kings of England or the Kings of France, as independent sovereigns and
nations.673 DISPUTE (EL SALVADOR/HONDU(R SEPS.P. TORRES BERNARDEZ)

87. The Reales Cédulasof 1563and 1564,interna1Spanish legislation,
are also of no use for the determination by the Chamber ofthe legal situa-
tion of the islands in any other respect. They were superseded by more
than two-and-a-half centuries of Spanish law and administration. They
provide, therefore, no clue for an application by the Chamber, to the

island dispute aspect ofthe case,ofthe 1821utipossidetisjurisor anyother
nom of State succession. Changes in administrative territorial units
occurred during that longcolonialperiod inCentral Arnerica,asisproved
by the aggregate information contained inthe case-file, and the Judgment
had to take such changes into account in adjudicating the island dispute
as it did with respect to the land boundary dispute. The original gober-
naciones did not become administrative territorial units of the subse-
quentlyestablishedCaptaincy-General or Kingdom of Guatemala whose
main administrative sub-divisions were first the provinciasand alcaldias
mayores and then the intendencias.The territorial jurisdiction exercised
by these provincias,alcaldias mayoresand intendenciason the territories

concemed - on which the Republic of El Salvador and the Republic of
Honduras were established in 1821 - are the only "colonial adminis-
trativeunits" relevantinthe present case,notthe gobernaciones. heoriginal
gobernacioneshave nothing to do with this determination.To proceed on
another basis would be perfectly arbitrary inthe light of the definition of
the applicable law made by the Parties in Article 5 of theSpecial Agree-
ment. There isno mle of international law applicable between the Parties
attracting for its application those ancient gobernaciones.

88. The weakness of its 1563and 1564Reales Cédulasargument with

respect to both the "historic title" and the utipossidetisjuris principle,
prompted counsel for El Salvador to try to give a technical answerto a
more than probable objection. It consists in bringing intothe picture the
modem constitutional or administrative law concept of the acte contraire.
Reales Cédulas could not have been modified or repealed, except by other
Reales Cédulas.The concept of the acte contraireis, however, alien to
Spanish colonial law. Cédulas Realescould also be modified by other
forms of general legislation or ad hocdecisions of the Crown and/or by
decisions of authorities vested by the Crown withthe necessary powers to
do so.Furthermore, there were of courseafter 1563and 1564quite a num-
ber of relevant Reales Cédulasmodifying those then promulgated.

89. There is no further issue before the Chamber involving Spanish
colonial law than the one concerning the proof of the 1821utipossidetis
jurissituation, which admits the evidence provided for by the Spanish
colonial documents submitted by the Parties. Such evidence is,however,
irrelevant sofarasthe so-called "original colonial title"concerned. This
title was a "historic title" of the Spanish Crown with no participation674 DISPUTE (ELSALVADOR/HONDU(R SEPS.) PTORRES BERNARDEZ)

herein of the various administrativeunits established by the Crown in its
American territories. It cannot, therefore, be applied by the Chamber
withoutmore ado or asakind of all-embracing residual rule susceptible of
defining the sovereignty of the Parties over the islands in dispute in the
present case.

90. In conclusion, 1agree fully with the finding in the reasoning of the
Judgment which rejectsin principle the "historic title" invoked by El Sal-
vadoras aprinciplesusceptible ofhaving abearing onthe adjudication by
the Chamber of the island dispute asbetween the Parties. Unfortunately,
theJudgment failsto draw from this conclusion its unavoidable legalcon-

sequences.Confusion isin fact maintained; and the definition and modus
operandi of the utipossidetisjuris principle suffer accordingly.

(b) 7heuti possidetisjuris principleinvokedbyHonduras'

91. The utipossidetisjuris principle is a rule of international law appli-
cable to both territorial questions and boundary delimitation disputes in
relations between Spanish-American Republics. There cannot be, there-
fore, a priori, any valid legal reason to put aside the utipossidetisjuris
principle, as it operated in 1821, when deciding the "island dispute"
aspect ofthe casebetween the Parties. Moreover, ifthe Partiesconsidered
themselves, as they did,to be bound by this principle on the mainland, it
must alsobe so on the islands in dispute in the Gulf of Fonseca.hystop

applying the 1821utipossidetisjuris when leaving theGoascoran sector of
the land boundary dispute? Furthermore, both the "islands" and the
"mainland" are physically "land territory". To exclude the utipossidetis
jurisas applied between Spanish-American Republics of Central Amer-
ica because of the doctrinal distinction between "attribution of sover-
eignty" and "delimitation" has no justification in general or in the
circumstances of the present case. The distinction made by authors may
be useful to describe the contents of the petita of successor States, but the
distinction is not initselfa ruleof internationallawand has not been con-
ceivedby doctrine asrestricting in anywaythe normaloperation and field
of application of theutipossidetisjuris principle.

92. Furthermore, both Parties have recognized, al1through the pro-
ceedings, that the "rules of international law" applicable between them,
referred to in Article 5 of the Special Agreement, included, in the first
place, the utipossidetisjuris principle as it operated in 1821.This Article,

'1am referringhere to theuti possidetis juris principle and itsmeans of proof as
defined inthe relevantconsiderations setin thisopinion (see"1.TheLandBoun-
daryDispute" - "A.General Questions").onthe other hand, does not limitthe application ofthe utipossidetisjuristo
any one of the three aspects of the case, tothe exclusion of others. Onthe
contrary, it requests the Chamber "when delivering its Judgment" - the
whole Judgment andnotone aspect orpart thereof - to take intoaccount
the mles of international law applicable between the Parties including,
"where pertinent", the provisions of the General Treaty of Peace.
93. The only task of the Chamber in this respect is, therefore, to pro-
nounce on whether the mle on evidence of Article 26 of the Peace Treaty
should be applied as such to the island dispute aspect of the case. The
Partieshave entered into someargument about this. However, the whole

issue seems to me beyond the point. The fact of applying or not applying
Article 26 of the Peace Treaty as such to the "island dispute" is without
practicalconsequences for the task to beaccomplished bythe Chamber. If
Article 26 as such were not to be applied - a matter thatthe Chamber in
any case is entitled to decide by virtue of Article 5 of the Special Agree-
ment - the Chamber could notbut proceed as provided for inthe Statute
and Rules of Court, and in general judicial international law,which hap-
pens to be quite open so far asthe admission of evidence is concerned as
well as alien to the "best evidence mle" concept of certain municipal law
systems.It followsthat there isnojustification for admittingcertain docu-
mentary evidence ofthe 1821utipossidetisjurisin the islanddispute tothe
exclusion of other such evidence. The situation in this respect presents
itself in thesame terms asthat regarding the land boundary dispute. No

CédulaReal or other general legislation was submitted by either Party
indicating to which of the colonial administrative units concerned the
exercise of territorial jurisdiction in the islands which arethe subject of
the present dispute corresponded. But,just asinthe caseofthe land bound-
ary dispute, the Parties submitted a considerable number of documents
issued by Spanish civil or ecclesiastical authorities recording colonial
effectivités.A comparison of the evidence provided for by these docu-
ments of the colonial period allows one, in my opinion,to reach an uti
possidetisjurisconclusion concerning the islands in dispute which ismuch
more convincing than in the case of certain segments of the boundary in
the disputed mainland sectors. 1will,therefore, proceed below to a deter-
mination of the legal situation of the islands in dispute on the basis of a
comparison of the colonial effectivitésrecorded in the said documents,
supplemented ifnecessary by evidence ofthe 1821utipossidetisjurisin the

disputed islands provided for by the related post-1821documentation, in
the same way as is done in the Judgment for the land-boundary aspect of
the case.

94. Where aprinciple such as utipossidetisjurisisconcerned, it isobvi-
ous that civiland ecclesiastical documents reflecting the colonial effectiv-
itésat a moment in time nearto the critical date, 1821in the present case,
are likely to evidence that situation better than documents on colonial effectivitésone or two centuries older, independently ofthe form adopted
by the oldest documents. Some ofthe submitted ecclesiastical documents
of the colonial period are particularly pertinent with respect to anutipos-
sidetisjuris determination of the situation of the islands in dispute at the
said critical date.Thepertinence ofsuch ecclesiastical documents results,
ultimately, from awell-knowngeneral rule of Spanish Lawsforthe Indies

contained in the Royal Ordinanceof 1571, and incorporated in the 1680
Recopilacion(Book II, Title II, Regulation 7),which has been applied in
such international arbitrations as that leading to the Award made by the
King of Spain on 23December 1906in the Honduras/Nicaragua bound-
ary case,where its meaning isexplained as follows :

"in fixingthemanner asto how the division ofthe discoveredterrito-

ries wastobe made, [therule]ordainedthat itshould be carried out in
such a mannerthat the secular division should conform to the eccle-
siastical, and that the Archbishoprics should correspond with the
districts of the Courts of Law [Audiencias],the Bishoprics with the
Governorships and chief municipalities [provinces and alcaldias
mayores] and the parishes with the districts and District Councils
[corregimientosand alcaldiasordinarias]."(United Nations, Reports
of IntemationalArbitralAwards,Vol.XI, at p. 113.)

95. The Judgment has upheld the Honduran proposition that the uti
possidetis juris principle applies also to the island dispute aspect of the
case. Butitsconcrete application ofthe principle tothe islands is particu-
larly poor, notwithstanding the evidence submitted on colonial effectiv-
ités.It is not surprising, therefore, that it reaches no conclusion asto the
situation of the islands in 1821from the standpoint of the utipossidetis
juris principle. To my regret, 1must disagree entirely with the inconclu-
siveness of the reasoning of the Judgment in this respect and will give
below my own conclusions asto which of the Parties the two islands in
dispute (Meanguera and Meanguerita) belonged to in 182 1as a result of
the operation of the utipossidetisjuris principle on the basis of the evi-
dence on civilor ecclesiastical colonial effectivitésaswellas ofthe Parties'
relevant conduct in the years following independence.

(c) ïhe 'beacefuland continuous exerciseof State authority" invokedby
ElSalvador

96. The second element of the applicable law system put forward by
El Salvador in the island dispute is the one expressed by the descriptive
heading of "peaceful and continuous exercise of State authority". This is
certainly a valid element deserving careful examination, because of the
role played by effectiveness in international law generally as well as in677 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

decisions of internationalcourts and tribunals on competing claims con-
cerning territory. However, the "peaceful and continuous exercise of
Stateauthority" isnot in itself aprinciple of international law,but amani-
festation ofagivenunilateral conduct oftheState concerned, whose even-
tua1legal effects ought to be defined inconcret0inthe light of the various
circumstances and, first of all, of the operating nom of international law
relevant in final analysis totheaid unilateral conduct. Hence, in defining
the legal effects to be attached incasuto a provèn "peaceful and continu-
ous exercise of Stateauthority", aconnection between that conduct and a
givennom of international law isof paramount importance. This conclu-
sion is particularly relevant in the instant casecause, as indicated,the
Judgment has rejected the existence of the "historic title" invoked by
El Salvador.

97. Another element that inthe present context needs to be produced,
in order judicially to ascertainany legal effects ofthe principleofeffective-
ness with respect to sovereignty over the islands in dispute, is the basic
status ofthe islands under international law.This,inthe present case,can-
not by definition, and particularly since the utipossidetisjuris principle is
admitted by theJudgment as applicable law,be the status of terranullius.
This ismoreover a proposition accepted,though via different arguments,
by both Parties. That being so, the well-known Islandof Palmasdictum to
the effect that the peaceful and continuous exercise of Stateauthority is
"as good astitle" is a maxim subject to caution:one needing close exami-
nation and careful analysis. Certainly, a judicial body must take cogni-
zance of a State's presence on the ground, but the legal issue before the
Chamber was one not of satisfying itselfthat this orthat Party was present
in a certain island in dispute,but of deciding the different matter of the
"sovereignty" over the island concerned.

98. Athird element that should have been borne very much in mind in
connection with the allegations of peaceful and continuous exercise of
State authority in the present case was the temporal factor. As from
what moment could such a manifestation of effectivitéson the part
of the State of El Salvador be judicially considered an established
fact? The answer is relevant for several reasons and, among them, for
the purpose of identifying the principle or nom of international
law that, al1 other circumstances concurring, might be activated by
the said State effectivitésso as to convey sovereign territorial rights.
It is obvious, for example, that in a situation such as the one in the
present case, effectivitéswhich could be related to the legal situation
existing in the islands in dispute at the critical date of 1821, cannot
be measured by reference to the same international law principle or
nom as effectivitéseither unrelated to such a critical date or subsequenttothe establishment of the dispute asto sovereignty over the island con-
cerned.
99. El Salvador has not invoked acquisitiveprescription,namely occu-
pation followedby bonafide effective possession during a certainperiod
of time, a highly controversial concept which, for my part, 1 have the
greatest difficulty in accepting asan established institution of internatio-
nal law. What El Salvador did was to invoke the "historic title" examined
above, namelya principle which hasno reality inthe circumstances ofthe
present case. But, in doing so, El Salvador hinted that its looked-for sup-
port for the effectivitésalleged in the island dispute were principles or
noms of international law defining the legal situation of the disputed
islands at thecriticaldate of 1821.Butthese principles or noms boil down
essentially,between the Parties, to the 1821utipossidetisjuris, namely the
principle of international law invoked by Honduras. It would, therefore,
be necessary to determine in the first place whether or not the effectivités
argued forby ElSalvador in one ofthe twoislands indispute (Meanguera)

could be linked in one way or another to the process of detemining the
1821utipossidetisjuris. This is an additional reason whytheendeavour to
determine the 1821utipossidetisjuris should precede examination of the
alleged Salvadorian effectivitésin the perspective of, or in relation to, any
other rules of international law applicable between the Parties in the
matter.

100. The Judgment has dealt with this problem in some sectors of the
land boundary dispute aspect of the case,inspired by a certain interpreta-
tion of the dictum of the Chamber in the FrontierDispute (BurkinaFaso/
Republicof Ma1i)casesofar asthe assessment of somepost-independence
effectivitésof one or another Party is concerned. In the island dispute,
however, the evidence submitted regarding the effectivitésmanifested by
El Salvadorin Meanguera cannot be treated as an element of confirma-
tion or interpretation of the 1821 utipossidetisjuris. It is not possible to
conclude otherwise because, as will be seen below, El Salvador has been
unable to produce before the Chamber any proof of colonial effectivitésin
any of the two disputed islands on the basis of which utipossidetisjuris

rights of El Salvador could be upheld. It was not, therefore, without rea-
son that El Salvadorrefrained frompleading the 1821utipossidetisjurisin
plain words inthe island dispute. In fact,the period oftimeover which the
peaceful and continuous exercise of State authority over Meanguera
invoked by El Salvador took shape in concret0prevents these effectivités
from being taken asan element forthe application or interpretation ofthe
1821 utipossidetisjuris.

101. However, in the case of Meanguera, the conduct of Honduras
when confronted historically with El Salvador's accumulation of effectiv-
itéson the island cannot but have certain effects under international law.
To establish, obtain or have title and tomaintain it are not necessarily the
same thing under international law. Title may be eroded by the operation of other principles or noms of international law applicable between
States,particularly when territorial rights are at stake. Territorial sover-
eignty also connotes obligations and, in the first place, the obligation
to maintain and protect it by observing a vigilant conduct towards pos-

sible inroads by other States. International law is particularly inimical to
prolonged situations of "abstract territorial sovereignty" or of "territorial
sovereignty by mere title" when a competing territorial sovereignty claim
of another State,accompanied by effectivitésofthat State on theground, is
not challenged as it should be at the relevant times. All depends, ulti-
mately, on the particular circumstances of the case concerned, but the
position of principle of international law on the matter seernsclear to me.
It follows in the caseof Meanguerathat 1am unable to uphold the Hon-
duran contention asto the "exclusiveness" ofthe 1821utipossidetisjurisas
applicable law in determining today the legal situation of that island as
between the Parties.

102. 1hold, in this respect, the same position in regard to the "islands"
in dispute asinthe "land boundary" dispute. Under the rule of Article 5of
the Special Agreement the utipossidetisjuris principle is applicable to the

case, and this should not be ignored when adjudicatingthe island aspect
of it. But, as indicated in the introductory paragraphs of this opinion
("The Case"), the conduct adopted by the Parties, in various forms, dur-
ing more than 170years of independence, may also have legal conse-
quencesforthe judicial determinations to be made bythe Chamber on any
of the three aspects of the present case. At the same time, of course, an
erosion of territorial utipossidetisjuris rights in Meangueracannot be the
result of mere assertions on the part of a State with a competing claim. It
mustbe proven. Consequently, the evidencesubmitted mustbe the object
of detailed analysis within the context of al1the relevant circumstances
and, in the present context, with respect to each of the two islands in
dispute.

103. In conclusion, the utipossidetisjuris, as it operated in 1821,is the
principle of international lawwhich the Chamber hadto apply, inthe first
place, to the "island dispute". The contents, object, purpose and proof of
this principle do not change because the dispute concerns sovereignty
overislands and not land-frontier delimitations. Butthe 182 1utipossidetis

juris isnot necessarilythe only nom ofinternational lawthat the Chamber
may apply in deciding todaythe island dispute or any other aspect of the
case. The peaceful and continuous exercise of Stateauthority (State effec-
tivitésoverthe islands in dispute invoked by ElSalvador is,inthe circum-
stances of the case,a valid legal argument when clearly proven, as in the
case of Meanguera. But, State effectivités alone, particularly late effectiv-
ités,cannot confer sovereign rights over islands that, in the present case,
have furthemore the status ofterritory "avecmaître".To produce the legaleffect sought by El Salvador, the proven effectivitésin Meanguera need to
be supplemented with or articulated around a principle or nom of inter-
national law capable of conveying territorial sovereign rights over that
island. This means that, to make a judicial determination today on the
sovereigntyover Meanguera, itisnecessary likewiseto verifytheconduct
of Honduras during the relevant period vis-à-visthe effectivitésof El Sal-
vador in Meanguera. This conduct, insofaras itmightbe saidto reflectan
implied consent, may provide the complement that the proven effectivités
of El Salvador would require in order to produce territorial sovereignty
effects.

104. 1 agree,therefore, withthe general proposition as tothe relevance
of the peaceful and continuous exercise of State authority invoked by
El Salvador as an element of the law to be applied to the dispute over
Meanguera island, as well as with the verification of the related conduct
of Hondurasat the relevant period. 1 disagree, however, withthe reason-
ing of the Judgment in so far as it is not preceded by the same careful
determination ofthe legalsituation of Meanguera and Meanguerita from
the standpoint of the utipossidetisjuris as it operated in 1821.This, in my
opinion, has, furthermore,had untoward consequences on the adjudica-
tion of Meanguerita, an island where ElSalvador has neither utipossidetis
jurisrights nor proven State effectivités.

C. ne LegalSituation ofMeangueraand Meanguerita

(a) Fromthestandpointof the1821uti possidetisjuris

105. Once the question of the "historical title" or "original colonial
title" invoked by ElSalvadorhas been settled (seeparas. 78-90above),the
determination of the legal situation of Meanguera and Meanguerita may
be examined - in al1its simplicit- on the basis ofthe relevant utipossi-
detisjuris evidence submitted by the Parties. None of the CédulasReales
mentioned by the Parties contain any specific reference to Meanguera
and/or Meanguerita or indeed to anyother island oftheGulf of Fonseca.
An utipossidetisjuris determination ought, therefore, to be made on the
basis of the circumstantial or indirect evidence provided by the colonial
effectivitésrecorded in the Spanishdocumentssubmitted, which - in the
case of Meanguera and Meanguerita - have an ecclesiastical as wellasa

civilorigin. Once this isdone, account could also be taken, forconfirma-
tion orinterpretationpurposes, ofpost-1821 conductofthe Parties in sofar
as that conduct has a link with the Parties' understanding of the 1821 uti
possidetisjurisin Meanguera and Meanguerita. An 1821utipossidetisjuris
determination on the described basis is perfectly feasible in the instantcase, as it has been carried out by the Judgment with respect to the land
boundary sectors in dispute. The islands of Meanguera and Meanguerita,
together with the other islands of the Gulf of Fonseca, were never organ-
ized by the Spanishauthorities as a distinct administrative subdivision or
unit of the Captaincy-General of Guatemala. Even during periods in
which they were inhabited, the islands were placed under the territorial
jurisdiction of neighbouring mainland administrative subdivisions of the
Captaincy-General of Guatemala, as well as under the jurisdiction of
ecclesiastical authorities on the mainland. Thus the question of the juris-
dictional relationship, in colonial times, of Meanguera and Meanguerita
either with Choluteca in the Alcaldia Mayor of Tegucigalpa and the
Bishopric of Comayagua (Honduras), or with the Alcaldias Mayores of
San Miguel and San Salvador and the Bishopric of Guatemala, has been
central to the Parties' argument.

106. Generally speaking, El Salvador admits that at a certain time the
islands of the Gulf, including Meanguera and Meanguerita, were under
the jurisdiction of Choluteca. It denies, however, that the joining of
Choluteca after the 1563and 1564RealesCédulasto the Alcaldia Mayor
de Minas of Tegucigalpa and, ultimately, tothe Intendencia of Honduras
would have carried withitjurisdiction overthe islands,including those of
Meanguera and Meanguerita. Sofaras the ecclesiasticaljurisdiction over
the islands is concerned, El Salvador adopts, apparently, the same inter-
pretation. The incorporation of Choluteca into the Bishopric of Comaya-
gua issaid to have beenwithout effect sofar asthe islands ofthe Gulf were
concerned :they continued to be under thejurisdiction ofthe Bishopric of
Guatemala, being administered by religious orders in charge of the guar-
dania,or convent, of Nacaome, which was controlled, furthermore, from
San Miguel.
107. The position of Honduras is quite different. Meanguera and
Meanguerita is said to have continued to be under the jurisdiction of

Choluteca following its incorporation into the Alcaldia Mayor de Minas
of Tegucigalpa,this Alcaldia Mayor being incorporated thereafter, with
al1its territorial jurisdiction, into the Intendencia of Honduras as pro-
vided for in the Real Cédulaof 1791.The jurisdiction of the Alcaldia
Mayor of Tegucigalpa, which included the town of Choluteca within its
jurisdiction,is said to have covered, furthermore,the area of Nacaome.
Ecclesiastical jurisdiction over Meanguera and Meanguerita also fol-
lowed the incorporation of Choluteca with itsjurisdiction, the Nacaome
area included, into the Bishopric of Comayagua or Honduras in 1672.
With the establishment of the Intendencia of Honduras, defined by the
said Real Cédula of 1791by reference, interalia,tothe territorial jurisdic-
tion of the Bishopric of Comayagua (Honduras), the whole historical
administrative process was, according to Honduras, definitively consoli-
dated. 108. Honduras stressesthe distinction between the regular ecclesiasti-
caljurisdiction, namely the parish of the diocese, and the competence, in
indoctrination of the Indian population, of the guardanias, convents,
administered by religious orders (Franciscan, Dominican, Mercedarian,
etc.), but that were territorially located within a given diocese. On the
other hand, El Salvador underlines the distinction between "alcaldias
mayores",like those of San Miguel and San Salvador, and "alcaldias
mayores de minas'', like (originally) that of Tegucigalpa. El Salvador
recognizes,however,that inthe 18thcenturythe "AlcaldiaMayorde Minas
ofTegucigalpa" became an "alcaldiamayor".What ElSalvadorapparently
denies is that the area of Nacaome had ever been integrated into the
Bishopric of Comayagua, or Honduras. Moreover, El Salvador givesan
interpretation of the Real Cédulaof 1818 (re-establishment of the
'Alcaldia Mayor of Tegucigalpa'>which would seem to contradict the

findings of the King of Spain and the Spanish Council of State in
the 1906 Honduras/Nicaragua boundary arbitration, which findingsthe
present Judgment, with its decision on the frontier line in the disputed
sector of Goascoran, hasupheld.

109. Having examined the evidence submitted by the Parties, 1 found
the informationcontained in severalofthedocuments provided byEl Sal-
vador quite irrelevant to thedetermination ofthe legal situation of Mean-
guera and Meanguerita fromthestandpoint ofthe 1821utipossidetisjuris.
1 am referring to those documents concerning towns, villages or places
located on the Salvadorian mainland (i.e., Meanguera, Amapala, Las
Nievesde Amapala) which,as such, have nothing to do withtheislands in
dispute or other islands within the Gulf of Fonseca. No documents ofthat
kind willbe taken into account inthe considerations below. 1do not, how-
ever, exclude from the review colonial documents or information that,
although directly concerned not with Meanguera and/or Meanguerita
but with other islands in the Gulf, could conceivably throw light on the

legal situation in 1821of the islands in dispute or which have been the
subject of particular comment by the Parties.

110. Acertain amount of thedocumentary evidenceturns onthe ques-
tion of the competencesof the Alcaldia Mayor de Minas of Tegucigalpa,
created with this denomination in 1578,into which the townof Choluteca
"withitsjurisdiction"was incorporated in 1580. ElSalvador stressed the
distinction between a "special" or "functional" competence, on minasin
the case,and the competences ofan alcaldiamayortoutcourt.Thisdistinc-
tion may well have obtained ingeneralin the 16thand 17thcenturies in
Spanish-America. But was it actually valid for the Alcaldia Mayor deMinasof Tegucigalpa?Since its creation, that Alcaldia Mayor was vested
expressly with broad jurisdictional powers going far beyond mining mat-
ters, as well as wide jurisdiction over the town of Choluteca and the vil-
lages of its jurisdiction. Furthermore, the original competences of the
Alcaldia Mayor de Minas of Tegucigalpadeveloped rapidly during the
17thcentury so asto make of it one ofthe mainadministrativesubdivisions
of the Captaincy-General of Guatemala. This issue is, on the other hand,
of little relevance incasubecause bythe 18thcentury, inany case, the evi-
dence before the Chamber proves beyond any reasonable doubtthat the
Alcaldia Mayor de Minas of Tegucigalpa,which in the meantime had
become an alcaldia mayor tout court,exercised the same range of territo-
rial jurisdictional powers ashad any main administrative subdivision of

the Captaincy-General of Guatemala before theintroductionintoCentral
America, in 1786,of the system of intendencias.

111. For example, documents before the Chamber dated 1675, 1677
and 1682(Reply of Honduras, Ann. VII.8.A-D, pp. 397ff.)provide infor-
mation on administrative, police and criminal jurisdiction exercised by
the AlcaldeMayorde Minasof Tegucigalpa. They relate to contraband in
English goods, the protection of the manufacture of indigo ink, and the
prohibition of exportingcorn outside the territory of the Alcaldia Mayor.
Choluteca and Goascoran are referred to in these documents as being
under the territorial jurisdiction of the 'Ilcaldia Mayorde Minasof Tegu-
cigalpa", and the latter is described as a "jurisdiction". The exercise of
jurisdiction in 1678by Alonso de Salvatierra, the AlcaldeMayordeMinas
of Tegucigalpa, in a criminal case involving specifically the island of
Meanguera (Memorial of Honduras, Ann. XIII.2.16, p. 2302)is particu-
larly illustrative of the territorial jurisdictional competences of the

Alcalde Mayor of Tegucigalpa, in spite of the formal denomination still
prevailing at that time ofAlcaldeMayorde Minas.The culprit inthat case,
who had abducted a minor, was arrested on Meanguera island byorder of
the Alcalde Mayor de Minas of Tegucigalpa and transferred to Linaca, a
village located on the mainland of his Alcaldia Mayor, to the south of the
town of Tegucigalpa.

112. It is also interesting to observe thatthe document concerning the
above-mentioned criminal case rightly distinguishedbetween the Alcalde
Mayor de Minas of Tegucigalpa and the Alcalde of the town of Teguci-
galpa. 1make this observation because the suggested original distinction
between the AlcaldesMayoresof San Salvadorand of San Miguel and the
AlcaldeMayor de Minasof Tegucigalpa is far less important than the dis-
tinction between those three Alcaldes Mayores and mere alcaldes or
"(local) mayors", the latter having municipal jurisdiction solely in their
respective town or village (they were also known by the name of alcaldes
ordinarios).Thereshould be no confusion inthisrespect. In adocument ofthe end ofthe 16thcenturysubmitted by ElSalvador itisaquestion ofthe
delegation of certain powers of the Alcalde Mayor of San Salvador,
San Migueland Choluteca (whohappened tobeone and the sameperson)
to the alcaldesordinariosof San Miguel and of Choluteca because of the
"distance" between his residence at San Salvador and the territories of
San Miguel and Choluteca. For a determination of the utipossidetis juris
the cornpetences of rnere alcaldesor "mayors" of villagesor towns is not
the issue.

113. The Chamber has also at its disposa1documents concerning taxa-
tionand tax collecrionbythe AlcaldeMayorde MinasofTegucigalpa. One,
dated 1660(Reply of Honduras, Ann. VII.13.A,p. 420),relates tothe ser-
vice ofthe tax called toston.It contains an account under oath of an offi-
cial of the Treasury to the President of the Royal Financial Judges of the
RoyalTreasury at Guatemala City. LaMiangola, a villageon Miangola or
Meanguera island, is there listed among the villages ofthe district of the
jurisdiction of Choluteca town incorporated since 1580into the Alcaldia
Mayor de Minas of Tegucigalpa.In the 1673juicio de residenciato
Diego de Aguileta, former AlcaldeMayorde Minasof Tegucigalpa, the
relevant document (ibid.,Ann. VII.13.B,p. 422)listsfinesimposed by him
on the capitularhicar of the town of Choluteca as well as on Indians of
villages situated in the mainland area of Choluteca/Nacaome/Goas-
coran as wellas on Miangola island. This iswithout prejudice to particu-
lar tasks entrusted to alcaldesmayoresand other local authorities by the

Royal Treasury. Documents of 1674and 1677submitted by El Salvador
record, for example, that authorities of San Miguel were entrusted with
the taskof "collecting" certain royalributes in San Migueland Choluteca
(Counter-Memorial of El Salvador, Anns. IX.6 and X.4).

114. The identity of the collectors oftributes or certain taxes has as
such, in my view, little probative value, because the whole operation was
placed under the direct authority of the Royal Treasury Officiais of the
Crown. Local authorities were mere "collectors by delegation" of the
Royal Treasury, and the task could even be entrusted to private individ-
uals.Afilebefore the Chamber, established in 1687atthe Real Audiencia
of Guatemala (Memorial of Honduras, Ann. XIII.2.7, p. 2284),clarifies
somewhat the situation concerning collectionof "royal taxes or tributes"
inthe "district" ofCholuteca. Itappears frornthat information that before
1687 the Alcalde Mayor of San Salvador had had responsibilities in
the collection of such royal taxes and tributes in San Salvador and
San Miguel, as well as in the "district" of the jurisdiction of Choluteca
town which, as said in the document, belonged to the 'XlcaldiaMayorof

Tegucigalpa': It was the Alcalde Mayor of San Salvador himself whoasked to be relieved of the task of collecting the said taxes and tributes in
Choluteca

"since that district belongs to another jurisdiction and is more than
eighty hours' journey distantfromthe place of my official residence,
although 1have given charge to many different persons, resulting in
more expenditure than profit forthe royal treasury".

115. The 1687document referred to above also contains an attestation
of Antonio Ayala, AlcaldeMayorde Minasof Tegucigalpaand of thetown
of Cholutecaand ifsjurisdiction,delivered in connection with a petition of
RoyalTreasury officials inthe Alcaldia Mayor, in which it is said that the
villages named in that petition "are those of the aforesaid jurisdiction of
Choluteca and are at present in poor condition" and uninhabited because
of piratical incursions, listing among those villages Nacaome. The Alcalde
Mayor de Minas of Tegucigalpa adds specifically, furthermore, that the
inhabitants of the island of La Miangola "have not grouped themselves
into villagesand are scattered". The interest ofthe Royal Treasury in such
matters is evident. The Indians must pay their annual tribute, butthe col-

lection of the tribute was effected through the villages where they were
assigned by census.The disappearance of an Indian villagewas not only a
political and human problem. It was also a matter of preoccupation for
the Royal Treasury. The 1687document commented upon here is also of
interest concerning the point, made above, as to "special assignment" in
the task of collecting royal taxes and tributes. The Alcalde Mayor of
San Salvador, for example, replied to the RoyalTreasury,when requested
to collecttributes inthe villages of Tenancingo and Santo Domingo Gui-
sapa, that the latter village "is not of this province, not of the one of
San Miguel, not of Choluteca", andthat he did not know in which territo-
rialjurisdiction Guisapa was located.

116. ElSalvador hasunderlined, with aconsiderable degree of empha-

sis, the evidence provided by a document of 1667 concerning Jueces
Reformadoresde Milpas(Counter-Memorial of El Salvador, Ann. X.3).
My reading of the document does not allow meto reach the same conclu-
sion as ElSalvador. The JuecesdeMilpasconcerned, aspecialjurisdiction
for mattersrelating tothe growthof maizebythe Indians, wereatthe same
time Juecesde Milpas of the Alcaldia Mayor of San Miguel and of the
town of Choluteca and its jurisdiction (incorporated in 1580 into the
"AlcaldiaMayor of Tegucigalpa" ).These Juecestherefore exercised their
special jurisdiction within territories belonging to two different alcal-
dias mayores.
117. According to the first episode described in this document, the686 DISPUTE (ELSALVADOR/HONDU(R SEP). PTORRES BERNARDEZ)

"Superior Government" of the Provinces of Guatemala (in the plural)
decided in 1658and 1659thatthemandate of twonewlyappointed"Jueces
deMilpas"forboth San Miguel and Choluteca would not have jurisdic-
tion over the Indians of Conchagua, Teca and Miangola and of other
islands within the Gulf of Fonseca, a Real Provisionexonerating those
Indians from milpas dues having been previously adopted by the
Real Audiencia. Afew years later, a third 'Yuezde Mi1pas"wasappointed
and his letter of appointment, apparently, did notmakethe reservation in
respect of those island Indians. The principals of the villages of Concha-
gua and Teca(both on the island called at presentConchagüita)appealed

to the "Superior Government" of Guatemala. They recalled the previous
decisions denyingjurisdiction over their villages to theuecesde Milpas.
The "Superior Government" ordered the said third "Juezde Milpas",in
1662,not to intervene in the villageseb1os)ofthe island of Conchagüita
(Conchagua and Teca), because of lack ofjurisdiction. The decision also
adopted, at the request of thendians, the form of a RealProvision.In this
first episode the Indians of Miangola (Meanguera) did not participate.

118. The second episode occurred in 1666. A fourth appointeeJuez
de Milpas sent a notification to the "Superior Government" of Guate-
mala, doneat theislandofLa Conchagua (Conchagüita)a ,sking for clarifi-
cation as tohismilpasjurisdiction over the villages inthe islands, includ-
ing La Miangola situated on Meanguera island. Whilein the islandof

La Conchagua(Conchagüita) (he did not visit Meanguera island), the Juez
deMilpaswas requested by the Indian mayors of the villages of La Con-
chagua, La Teca and La Miangola tostop his actions.Theyshowedtothe
Juezde Milpasthe Real Provisionof 1662.In his notification to the "Su-
perior Government", the Juezde Milpassuggested that the reservation as
to island villages contained in the letters of appointment of otherueces
de Milpasshould not concern him, and he declared that if so ordered by
the "Superior Government" he was ready to carry out his task in the
islands, without salary,just- as heput it- to take a look at the preten-
sions of these villages to whichjustice did not reach at al1because of their
being islands and lying within thesea.

119. The notificationof the Juezde Milpaswas presented in Guatemala
at the Real Audiencia together with a petition of the Indian Mayors of

La Conchagua, La Teca and La Miangola recalling their exoneration
from Juecesde Milpasjurisdiction. Th& petition, after enumerating the
names of the Indian Mayors and their respective villages, adds "inthe
jurisdiction of the Alcaldia Mayor of the City of San Salvador, and
San Miguel". This reference is what prompted counselfor El Salvadorto
elaborate at the hearings (C4/CR 91/33, p. 54)on the so-called Juecesde
Milpasevidence. The elaboration missed, however, the fact of the geogra-
phical location of the three Indian Mayors concerned when drafting the
petition. It is obvious that they were "in"("enthe island of La Concha-gua(Conchagüita) wherethey met withthe "JuezdeMilpas".ButConcha-
güita is not an island in dispute before the Chamber. Nobody is question-
ing inthe current proceedings that Conchagüita belonged to the jurisdic-
tion of the Alcaldia Mayor ofSan Miguelatcolonial times. It is,therefore,
quite unwarranted to implythat bythequoted reference the Indian Mayor
of La Miangola villagerecognized that the island of Meanguera belonged
to the jurisdiction of the Alcaldia Mayor of San Migueland/or San Sal-
vador.In Spanish, at least,there isquite adifference between saying "enla
jurisdiccionde" and saying "delajurisdiccionde ".

120. Oncemorethe "Superior Government" confirmed the exemption
enjoyed by the Indians of La Conchagua, La Teca and Miangola and

ordered the Juezde Milpasto refrain from visitingthe islands.There isno
reference in the proceedings concerned to the territorial jurisdiction or
jurisdictions to which the islands of the villages in question belonged. It
follows from the above considerations thatthe Juecesde Milpasargument
of El Salvador is not pertinent in the present case,except as a confirma-
tion that the island of Conchagüita, an island which is not indispute, was
under the jurisdiction of the Alcaldia Mayor of San Miguel and/or of
San Salvador.

121. Much more important, 1would sayquite conclusive,foran utipossi-
detisjuris determination of the islands in dispute, as well as of the compe-
tences exercised bythe AlcaldeMayordeMinasof Tegucigalpa thereon, is
the evidence of 1684concerning the resettlement of the Ïndian sumivors
from Miangola or Meanguera island, following invasions and devasta-
tions bypirates (Memorial of Honduras, Anns. XIII.2.18 and 19,pp. 2305

and 2308).The Indians concerned applied to the "Superior Government"
of Guatemala asking tobe authorized "to go to the mainland in the vicin-
ity of the village of Coloma" in the Alcaldia Mayor de Minas of Teguci-
galpa, in a place with the status of tierrarealenga.El Salvador has argued
that the Miangola Indians did not address themselves to the Alcaldia
Mayor de Minasof Tegucigalpa,but to the authorities in Guatemala. This
argument ignores the Spanish colonial law governing such kinds of peti-
tion. Competenceforthe resettlement of a villagebelonged exclusivelyto
the "Superior Government" ofthe Captaincy-General or Kingdom ofGua-
temala. It did not belong, nor was it delegated to the inferior administra-
tive units where the petitioning village was located. Neither was resettle-
ment a matter of ejidos under the competence of the Juez Privativode
Tierras of the Real Audiencia of Guatemala.It was considered an import-
ant political executive competence of the "Superior Government".
Alcaldes mayores, alcaldes mayores de minasor corregidoreswere simply
not competent to decide that kind of matter. Furthermore,the Indians of
Miangola island had applied, in the same petition, for dispensation frompayment of arrears of royal tribute: another matter outside the compe-
tence of alcaldesmayores,alcaldesmayoresde minasor corregidores.

122. What ishighly relevant, inthe context, isthatthe Indians of Mian-
gola island expressly requested, intheirapplication to the "Superior Gov-
ernment" of the Captaincy-General of Guatemala, that this highest
authorityshould instmct the AlcaldeMayorof Tegucigalpa with respectto
the place onthe mainland nearColoma villagewheretheywould prefer to
be relocated

"while indicating the land required for the new population and the
requirements forthe crops to begrown bytheinhabitants, as also the
land granted for the population as a whole".

These Miangola island Indians of the late 17th century certainly knew
how to distinguish between the competences of the "Superior Govern-
ment" and those of the AlcaldeMayordeMinasof Tegucigalpa or,for that
matter, anyother alcaldemayor!
123. The "Superior Government" of the Kingdom or Captaincy-
General of Guatemala decided: (1)that relocation on the mainland of the
Indians of Miangola island was in order; (2)that the wells on Miangola
island should be made useless; (3)that, thereafter, the petition ofthe Indi-
ansto be transferred to the mainland couldbe granted; (4)thatthe alcalde
mayor concerned should survey the area referred to by the Indians for
their relocation;(5)that the Indians of Miangola island were dispensed
from payment of their arrears of tribute and that, in addition, they would
also be exempted from such tribute while building on the mainland their

new village and its church (two years of dispensation). Who was for the
"Superior Government" of Guatemala the alcaldemayorconcerned ?

124. The answer to this query is given in plain words by Don Enrique
Enriques de Guzman, Captain-General, Governor and President of the
Real Audiencia of Guatemala, in the document before the Chamber:
the Alcalde Mayor de Minas of Tegucigalpa, Antonio Ayala. Why so?
Because, as expressly stated in the document, the island of Santa Maria
Magdelena,calledLaMeanguera,belongedtothejurisdictionoftheAlcalde
Mayor de Minas ofTegucigalpa.Thisisnota statementmade inthe 18thor
19thcenturies, but in 1684!The Chamber knows, therefore, that, as from
1684at the latest, the Alcaldia Mayor de Minas of Tegucigalpawas the
Alcaldia Mayor of the Captaincy-General or Kingdom of Guatemala
which had territorial jurisdiction on the island of Meanguera.

125. Moreover, the above statement and recognition of Don Enrique
Enriques de Guzman was followed by execution of the instructions inthe689 DISPUTE (ELSALVADOR/HONDU(R SAESO.P. TORRESBERNARDEZ)

field. The AlcaldeMayordeMinasof Tegucigalpa surveyed the place near
Coloma and proceeded with some other administrative acts required in
compliance with the orders received from the "Superior Government".
He made the requested survey. Bearing in mind the conclusions of his
survey and the specificinstruction of Don Enrique Enriques de Guzman
to the effectthat the Indians should not, "owing to the enemy", have com-
munication with the sea, the Alcalde Mayor de Minas of Tegucigalpa,
Antonio Ayala, recommended resettlement of the Meanguera Indians in

the village of Nacaome instead of the place originally requested by the
Indians (Memorial of Honduras, Anns. XIII.2.20, p. 2310,and XIII.2.24,
p. 2315).This wasdone on 1December 1684byadecree ofAntonio Ayala,
and the Indians of Meanguera, together with Indians of Nacaome, were
relocated in the village of Nacaome "having been put in possession and
given land for sowing". Ayala likewise gave instructions, in the presence
of the mayor and elders of the village of La Meanguera, to destroy wells
and houses on Meanguera island. A commission tothat effect was deliv-
ered the same day by the Alcalde Mayor de Minas of Tegucigalpa (ibid.,
Ann. XIII.2.22, p. 2313). It was executed on the island of Meanguera
in January 1685.

126. Other documents, of about the same time, namely of 1685and
1686(Memorial of Honduras, Anns. XI11.2.24,p. 2315, and XIII.2.25,
p. 2316),confirmthenormalterritorial competence, includingcompetence
on Meanguera, exercised by the Alcalde Mayor de Minasof Tegucigalpa.
The document of 1685 contains a request addressed by the "Superior
Government" of Guatemala to the Alcalde Mayor of Tegucigalpa for
information on theneeds of the Indians of the villages under the jurisdic-
tion of the town of Choluteca. That of 1686concerns thejuicio deresiden-
ciaaddressed by Antonio Ayala, AlcaldeMayorde Minasof Tegucigalpa,
to his predecessor in the same office, Alfonso de Salvatierra.Reference is
made in this document to certain abusive and illegalburdens imposed by
Salvatierra on theIndians of the village of Meanguera. Likewise,there is

also evidence before theChamber suggesting that Indians of the villages
of La Conchagua and La Teca of Conchigüita island were relocated in
the mainland area, under the jurisdiction of the Alcaldia Mayor of San
Miguel, nearby the villages of Amapala, Las Nieves de Amapala and/or
Miangola. It was surely the successive pirate invasions which prompted
the evacuation of the Indian inhabitants of the islands of the Gulf of Fon-
seca.These invasions determined alsotheadoption bythe "Superior Gov-
ernment" in Guatemala of "preventive measures" of defence as reflected
in a document of 1685submitted by El Salvador (Reply of El Salvador,
Ann. 34) which discusses the CO-operation to that end of the alcaldes
mayoresin the area of the Gulf of Fonseca, including the Alcalde Mayorde Minas of Tegucigalpa, Antonio Ayala, "with the companies of his
jurisdiction".

127. The scant documentary elements of evidence suggesting the non-
exercise by the Alcalde Mayor de Minasof Tegucigalpa of the territorial
jurisdiction of an alcalde mayor in the relevant area does not extend,
approximately, beyond the middle of the 17thcentury. Such information
issuperseded completely byevidenceposterior intime and quite uniform.
Thus the letter of appointment of Captain Sebastian de Alcega States :

"it ismywillthat you be myAlcaldeMayorde Minasy Registrosdellas
of the Province of Honduras and that of Apacapo and Choluteca
town in the Province of Guatemala" (Memorial of Honduras,
Ann. XIII.2.6., p. 2283).

But this is a document of 1601 !This also explains why in a document of
1588,and in another undated one submitted by El Salvador, oneand the
same person appears appointed as Alcalde Mayor of San Salvador,
San Miguel and the town of La Choluteca and itsjurisdiction (Reply of
El Salvador, Anns. 29 and 30). The document of 1625 concerning an
encorniendaof Isabel Recinos "in the islands of Amapala" submitted by
El Salvador is also irrelevant. Encomiendasdid not entai1territorial juris-
diction on the part of the encomendero(Counter-Memorial of El Sal-
vador, Ann. X.2,p.3).A 1643document relating to amilitary appointment

made in consideration ofthe defence ofthe "port of Amapala", within the
jurisdiction of San Salvador, does not concern the islands in dispute
(Reply of El Salvador,Ann. 36).Afurtherdocument of 1698,a petition to
join in asingle villagethe Indians of Miangola and of Las Nieves de Ama-
pala, likewise relates to villages on the Salvadorian mainland (Reply of
Honduras, Ann. VII.12,p. 415).

128. It isalsoclear thatthearea of theGulf of Fonseca wasthe subject,
from time to time, of projects of the Crown in respect of which local
authoritiestook aposition. In adocument of 1590,the Cabildoof the town
of San Miguel, for example, petitioned the King, in connection with the
technical survey entrusted to Francisco de Valverde, Bautista Antonilli
and Diego Lopez de Quintanilla, in order to find the best way (camino)
between the Bayof Fonseca and Puerto Caballos onthe Atlantic Coast,"to
move and become neighbour in the area that Your Mercy points out for
the city and population of the Contratacidnof Peni" (Reply of El Sal-
vador, Ann. 28). On the other hand, in a further undated document,but691 DISPUTE (ELSALVADOR/HONDU(R SAEP. P.TORRES BERNARDEZ)

one certainly of the 18thcentury (reference is made therein to the "inten-
dencias'), it is the Ayuntamiento (municipal council) of Comayagua
which, in connection with the restitution to Honduras of the ports of
Omoaand Tmjillo on the Atlantic,asked thatthe territory of the Province
of Honduras be extended to thearea on the east of the Lempa River, soas
to make that river the boundary between Comayagua and San Salvador
(Reply of El Salvador,Ann. 33).There isno evidence that petitions of this
kind were ever approved by the Crown or the "Superior Government" of
the Captaincy-General of Guatemala.
129. What appears, generally, from an overall study of the evidence
submitted isthat the Crownalmost continuously maintainedthe Alcaldia
Mayor ofSan Migueland the Alcaldia Mayor de Minas ofTegucigalpaas
separate jurisdictions having both a coastline alongthe Gulf of Fonseca
and islands within the Gulf. The same applies in the 18thcentury to the
Intendencia of San Salvador and that of Honduras,each also havingjuris-

diction over different parts of the coasts and islands of the Gulf of Fon-
seca.A decisive element forthe "distribution" of territorial jurisdictions
in the area was, certainly, the establishment in 1578of the AlcaldiaMayor
de Minasof Tegucigalpa and theincorporation therein in 1580of the town
of Choluteca with itsjurisdiction.hese decisions, the subsequentadmin-
istrative evolution of thislcaldia Mayor and, finally, its incorporation
into theIntendencia ofHondurasin the 18thcentury, left matters much as
they were before theRealesCédulasof 1563and 1564.The development as
a whole is verymuch related to geographical considerations. The area of
theGulf of Fonseca and, in particular,Choluteca was far away from Gua-
temala City, while Comayagua and Tegucigalpatowns were nearer to the
area. This,together with theimportance ofthe minasand communications
between the Gulf of Fonseca and the Honduran ports on the Atlantic, did
the rest. It was considered a sound administrative policy fo progressively
join up the Alcaldia Mayor of Tegucigalpaand Choluteca, Nacaome
included, and, later on,to join these and the ProvinceofComayaguato the
Intendenciaof Honduras:there is no evidence at al1that, on the occasion

of those successivejoinings, the islands in the Gulf of Fonseca under the
jurisdiction of theAlcaldia Mayor of Tegucigalpawere detached there-
from.

130. Furthermore the initiative of this development came frequently
from central authorities in Guatemala and/or from the local authorities
in San Salvador itself. Reference has been already made to the request of
the Alcalde Mayor of San Salvador of 1687 (Memorial of Honduras,
Ann. XIII.2.7, p. 2284)to transfer his tax-collecting assignment inlu-
teca district to the Royal Treasury officials of Honduras. The same hap-
pened a few years before (1672)with the incorporation of Choluteca and
itsjurisdiction intothe Bishopric of Comayagua or Honduras. It was the
Bishop of Guatemala who took this initiative after a pastoral visit to the
area (ibid., Ann. XI11.2.8,p. 2286). The contents of the documentation
concerned make one aware of al1theimportance which geographical dis-tances had in those initiatives, and, ultimately, in the Crown's successive
decisions on territorial administration in the area of the Gulf of Fonseca.

131. What happened was as follows: the Bishop of Guatemala,
Juan de Santo Mathia,after ascertaining in his pastoral visit the spiritual
and religious situation in Choluteca (it was the firsttime for over 80years
that apastoral visithad taken place !)asked the King inJuly 1670to incor-
porate Choluteca with its benefits(namely the "dima") intothe Bishopric
of Comayagua or Honduras, since the latter Bishop could visit the area
of Choluteca "more easily". The royal decision, in December 1672,
approved the request of the Bishop of Guatemala "inasmuch as it was
fitting toorder that steps be taken to join the said parish to the town of
Choluteca inthe way proposed" (Memorial of Honduras, Ann. XIII.2.10,
p. 229 l), but not without first studying the question of the "dima"(ibid.,
Ann. XIII.2.8, p. 2287). The Real Audiencia of Guatemala as well as
the Bishops concerned were informed (ibid., Anns. XIII.2.9, p. 2288,
and XIII.2.10, p. 2291).The corresponding Papal Bull was alsorequested
by theCrown (ibid., Ann. XIII.2. I1,p. 2292).As already indicated, El Sal-

vador did not have a Bishopric of its own during the colonial period. It
belonged until 1842to the Bishopric of Guatemala.

132. The parish of Cholutecawas, therefore, transferred in 1672to the
Bishopric of Honduras. The task of analysing the evidence concerning
ecclesiastical jurisdiction is somewhat confused by the existence in the
area oftheguardania of Nacaome belonging tothe Franciscan Order, but
the issue is no less clearthan that of the civil jurisdiction. In 1675,the
Bishop of Honduras informedthe King that on "one of the canals of the
town of Jerez de la Choluteca" there was a large Franciscan guardania,
called "Nacaome", located more than 100leagues from the City of Gua-
temala, and that

"it does not seem possible that its bishop could travel so far just to
visitthis village, and whenever the Bishop of Honduras visits Cholu-
teca, al1the inhabitants and parishioners of Nacaome flock to see
him" (Memorial of Honduras, Ann. XIII.2.12, p. 2294).

He petitioned that the guardania be annexed to the Bishopric of Hondu-
ras (ibid.).The King decided, on July 1678,afterconsidering the matter in
the Council of the Indies, that

"no novelty isto be made of this aggregation and we beg and charge
you [the Bishop of Guatemala] to visit this guardianship and inform [me]of the knowledge thus gained" (Reply of El Salvador,

Ann. 31).
The question of the "dima"was very much a factor in thisepisode.
133. This decision on the Franciscan guardaniaof Nacaomehas been
invoked by El Salvador in connection with its argument that the transfer
of Choluteca and itsjurisdiction to the Bishopric of Guatemala did not
carry with it Nacaome or, by implication, the islands of the Gulf. This is,
however, an argument of little or no significance where determination of
the legal situation in 1821 of the islands in dispute is concerned. The

territorial scope of the "guardania"or "convent" of a religious order,
entrusted with the task of indoctrinatingthe Indian inhabitants, isas such
irrelevant to the 1821utipossidetisjuris.Whatmaybe ofprobative value in
regard tothe utipossidetisjuris isthe indirect evidencewhich may be con-
tained in ecclesiastical documents, including those relating to religious
orders,as to the limits or scope of the diocese and parishes of a Bishopric
and of the civil administrativejurisdictions concerned. In this respect, in
addition to the alreadynoted evidence fromthe 16thand 17thcenturies on
thejurisdiction exercised bythe AlcaldiaMayorde Minasof Tegucigalpain
the area, including its islands, one should add the further evidence con-
tained in an old document of 1590in which itissaid thatthe town of Chol-
uteca and itsjurisdiction included Nacaome among its villages. Further-
more, the same document also contains a specificentry on "The Islands",
which reads as follows :

"IslandofLa Comixagua:Ithas two villages,one ofwhich isknown
as La Teca and the other as La Comixagua. There are 110 Indians
and maize is grown. The villages are at the entrance of the port.
La Miangola:Thisislandhas avillagewhich comes withinthejuris-
dictionof Choluteca,with 20 Indians. They eat maize." (Memorial of
Honduras, Ann. XIII.2.14, p. 2299; emphasis added.)

134. The "memorial" or "account" by Francisco de Valverde, a docu-
ment authenticated by the Archivo General de Indias in Sevilla ("new
document" submitted by Honduras), contains a list of "al1the villages"
('~ueblos")in the jurisdiction of San Miguel and in the jurisdiction of
Choluteca (describedas a region or "comarca"ofthe port of Fonseca and
of the Province of Honduras). The document is, moreover, particularly
precise as to the "distances" between the various towns and villages as
well as the "number of Indians" living in each town or village. Those of
San Miguel are listed first. Then come the villages on the Camino Real
coming to ComayaguafromFonseca and its comarcaand an entry entitled
"The Islands", as well as villages of Choluteca. Last come the villages of
the "Province of Honduras" on the Camino Real. Under the heading
"The Islands" the following is stated :

"In the island of Conchagua there are two villages, theone called La Teca and La Conchagua with 110lndians who harvestmaize and
are on the mouth of the port.La Meanguera isan island with avillage
in the jurisdiction of Choluteca. They harvest maize." (Emphasis
added.)

135. The evidence that the island of Meanguera was under the civil
jurisdiction ofCholuteca and, therefore, ofthe AlcaldiaMayorde Minas of

Tegucigalpaisclear and consistent. In no part of any of the colonial docu-
mentssubmitted by either of the Parties isthere anyreference to the effect
that Meanguera was under the civiljurisdiction of San Miguel or of San
Salvador. The 1678 decision of the King concerning the administration of
the guardania of Nacaome by the Bishopric of Guatemala changed
nothing in this respect. It is furthermore necessary to bear in mind two
things :(1)thatthe "guardanias"and/or "convents" of any religious order
should notbeconfused with a"parish" ;the Dominican, Franciscan, Mer-
cedarian, etc., monks in charge were not parish priests; (2)each religious
order had its own interna1 organization, the subdivisions of which were
frequently called "provinces"; but the "provinces" of any religious order
must not be confused with the "parishes" of a "diocese" of a Bishopric or
with the "provinces" or "alcaldiasmayores';which are civiladministrative
units.

136. In his description ofthe visit he paid in 1586to thearea ofthe Gulf
of Fonseca (Counter-Memorial of Honduras, Ann. IX.3, p. 273), Fray

Alonso Ponce refers to the village of Indians in Miangola island as
dependent on the Franciscan Convent of Nacaome "in the Bishopricof
Guatemala". However at that time, Choluteca parish had not yet been
transferred to the Bishopric of Honduras, although it had already, since
1580,been incorporated from a civilpoint of viewintothe Alcaldia Mayor
de Minas of Tegucigalpa.Moreover, Fray Ponce refers also to the convent
of Santa Ana de Cholutecadescribed by him as belonging to the Custodia
of Honduras notwithstanding the above. A "custodia"was a group of con-
vents or guardanias in a given province of a religious order. These visits
tookplace after Ponce had been inthe villages of LaTeca and Conchagua
on the island of Conchagüita.The report of the trip also contains refer-
ence to islands ofthe "Province of Guatemala". My understanding of the
text isthat Fray Ponce was describing the "Province of Guatemala" ofthe
Franciscan Order. The same applies, no doubt, to a document of 1713,
qualified by counsel for El Salvador asa CédulaReal (1find no indication
in thedocumentthat itwas so named) relating to a "vacancy" with respect
to which the following description is given:

"Doctrinadelpartido de NacaomedelaprovinciadeSan Migueldela
administracion dela religiondelSeiiorSan Franciscodela Provinciadel
Santisimo Nombrede Jesus de Guatemala." (Emphasisadded.)It is clear that in this so-called 1713 Real Cédulathe "province of San
Miguel" and the "Province of the Santisimo Nombre de Jesus of Gua-
temala" referred to are not the civilian administrative units called

'2lcaldia MayorofSan MiguelUand"ProvinceofGuatemala",respectively.
The term "provinces", inthe 1713document, relatesto "provinces" of the
religiousorder concerned.
137. The Chamber alsoknows,from the 1704description ofthe Custo-
dia de Santa Catalina deHonduras by Father Vasques (Reply of Hondu-
ras, Ann. VII.lO, p. 404),that a "custodia"belonging to a given "religious
order" could have "convents" or "guardanias"under different Bishoprics,
as well as being located under territorial jurisdictions of different civil
colonial administrative units. Situations of this kind could give rise to
problems about the "benefits" (the "dima"or others), as happened in fact,
according to submitted evidence,between the parish priest of Choluteca
and the Franciscan convent in Nacaome, moved later on to Goascoran.

138. The recognition by members of the religious orders concerned
that the village of Nacaome was under the jurisdiction of the Alcaldia
Mayor deMinas ofTegucigalpais,on theotherhand, proved by otherdoc-
uments alsobefore the Chamber. See,for example, theapplication on the
"Hacienda"Nuestra Sefioradel Rosario, submitted in 1678bythe Guard-
ian Father of the Convent of San Andrésde Nacaome to Fernando de
Salvatierra, Alcalde Mayor of Tegucigalpa, concerning an act of "dona-
tion" (Counter-Memorial of Honduras, Ann. IX.4, p. 276). The same
applies with respect to the pleading indefenceof theparish priest ofChol-
uteca in proceedings instituted by a doctrineropriest of Goascoran (Reply
of Honduras, Ann. VII.9, p. 401).When a parish priest was unable to visit
hisparish(Choluteca wasan extensive parish andhad an indigenous pop-
ulation), a coajutorpriest was appointed, arole which, asindicated above,
might fallto amonk ofa religious order. Thishappened, for example, with
FatherManuel BedafiaoftheMercedarian Order ofthe Convent of Chol-
uteca, who was authorized by the parish priest of Choluteca to visit the
islands of the Gulf.
139. Moreover, and independently of the above, there isalso clear evi-

dence before the Chamber of the exercise of ecclesiastical jurisdiction by
the Bishopric of Honduras over the Nacaome area. In 1678,after the
incorporation of Choluteca and its area ofjurisdiction into the Bishopric
of Honduras, for example, the Bishop of Honduras, Vargas y Abarca,
divided the old guardania of Nacaome into two parts. Nacaome with its
villages became a "secular parish" and Goascoran became a Franciscan
guardania. The guardania as such was administered from Guatemala
City, but the area was territorially within the ecclesiasticrisdiction ofthe Bishopric ofHondurasand the civiljurisdiction of the Alcalde Mayor
de Minas of Tegucigalpa. El Salvador insisted that ecclesiastical jurisdic-
tion in the area of Nacaome, particularly in its "convents" and/or "guar-
danias",belonged to the Bishopricof Guatemalaand was administered as
from SanSalvador or San Miguel. There is,however, no proof of that, but
onlyof the administration of certain "convents" and "guardanias"asfrom
Guatemala City by the Bishopric of Guatemala and, more probably, by
the Principal ofthe religiousorder concerned resident in Guatemala City,
whocould happen to be atthe time the Bishop of Guatemala. There is,on
the other hand, no evidence originating with the local ecclesiastical
authorities of San Salvador or San Miguel mentioning that the islands in
dispute in the Gulf of Fonseca, namely Meanguera and Meanguerita,
belong tothe ecclesiasticaljurisdiction ofthe BishopricofGuatemalaand/
or to the civilian jurisdiction of the Alcaldia Mayor of San Miguelor of
San Salvador.

140. Honduras denies that the information contained in a documentof
1733recording a visitofthe Bishop ofGuatemala to Nacaome,could have

referred to a pastoral visit,ecause, since 1678,the former guardania of
Nacaome had belonged to a"secular parish" ofthe BishopricofHonduras.
Honduras considers thatthe visit wasprobablytothe Franciscan convent
of Goascoran and not to theparish of Nacaome.

141. Coming back to civilian colonial documents, ElSalvador has sub-
mitted a Relacion Geografica of the "Province of San Salvador" by
Manuel de Galvez,AlcaldeMayorof that Province, written in 1742,hence
well into the 18thcentury. The Relacioncontains two detailed lists of the
pueblos of the Alcaldia Mayor of San Salvador and that of San Miguel.
There is no reference to the islands of the Gulf of Fonseca in dispute in
either of these lists. The only statement relating to the Gulf of Fonseca
reads as follows :

"25. The one from Santiago Conchagua [village],with the same
direction of the southeast, its distance from the capital is 58leagues
(which is 14.5kms.),its population isof seventyfour indians who are
taking cureof thecanoesfor thepassage of the inlet that divides this
Provinceof the onefrom Nicaraguaand they keep continuous vigi-
lance on thisport, having the growing of corn and cotton." (Counter-
Memorial of El Salvador, Ann. X.8, p. 155,point No. 25; emphasis
added.)

142. El Salvador has also stressed that several documents concerning
appointments, such asthose ofJoséVilla(1765)and Cardinanos (1791),or
descriptions of the "Province of Honduras", such asthat of BaltasarOrtizand Letona (1743),contain no references tothe islands ofthe Gulf of Fon-
seca either. On the other hand, El Salvadordenies asrelevantevidence the
decree for the appointment of Juan de Vera (1745). Someimportance is
attached by ElSalvador to a document of 1752addressed to the President
of theRealAudienciaof Guatemalain which it issaid that the "Province of
Honduras" does not have a sea "port" in the Gulf of Fonseca. There are
not enough elements in the reference to determine whether this was
intended to mean 'ports"ingeneral or "natura1ports"o" rman-madeports"
andthe like, and the reference isto the "ProvinceofHonduras"(Comaya-
gua) and not to the "AlcaldiaMayor of Tegucigalpa'A :ll this and other
arguments of El Salvador aimed to prove that the Real Cédulaof 1791,
whereby the AlcaldiaMayor ofTegucigalpawas integrated intothe Inten-
denciaofHonduras,did not carry with itjurisdiction overthe islands ofthe
Gulf of Fonseca. But of that El Salvadorhas not been able to produce a
shred of proof capable of overcoming the clear evidence to the contrary
before the Chamber.

143. The time has now come to consider in some detail a piece of evi-
dence with which El Salvadortried to convince the Chamber of the afore-
said contention, namely the proceedings relatingto Lorenzo de Irala's
applicationfor compositionof "realenga lands"situated on an islandof
the GulJ:The date of this document is 1766(Counter-Memorial of El Sal-
vador, Ann. X.9, pp. 172ff.). El Salvador placed considerable emphasis
on this piece of evidence (as with the JuecesReformadoresde Milpas).
Contrary to the case of the said Judges of Milpas,the present one belongs
to the second part of the 18th century, though prior to the Real Cédula
of 1791.It could, therefore, be of some value in support of El Salvador's
thesis. It is also the only document before the Chamber concerning com-
position of tierra realengaon an island of the Gulf at the colonial
period, a topic familiar to theChamber because of the "land boundary
dispute". It is not, however, a document belonging to the category of

those called by El Salvador "formal title-deeds to commons". The appli-
cation was made by a private individual.

144. For reasonsexplained below, 1 consider thatthe Irala proceedings
are completelyirrelevant to thedetermination of the legal situation of the
islands in dispute. Tobegin with, they do not relate tothe islands ofn-
guera and Meanguerita. Counsel for El Salvador identified the island
concerned as Exposicion. But Exposicion is notforthe Chamber an island
"in dispute". Furthermore, the island concerned in the Irala incident was
not, in fact, Exposicion, butZacate Grande,namely an island which, for
El Salvador itself, was not "in dispute" before theChamber. It is Zacate
Grande because the documents Sayso. The original applicationof Irala
described the "island" as follows : "that in the coastline of the village andport of Conchagua facing the
lands 'or territory of Nacaome Province of Tegucigalpa, and per-
tainingapparently to the latter2, isfound and seen an island between
the onethat is called 'Cerro del Tigre',and the land named island of
'ElSacate' or 'isladel Ganado', which is desert and uninhabited ..."
(Counter-Memorial of El Salvador, Ann. X.9, p. 172, and for the
Spanish text, p. 184).

But the powers given by Irala to Francisco Chamorro Villavicencio of
Guatemala City to represent him in the proceedings before the Juez Pri-
vativode Tierras of the Real Audiencia modified the description in the
original application as follows :
"to measure and to recognize the island that is denounced, called it

'del Zacate' or'delGanado' that isin a realengocondition, desert and
uninhabited seawards" (the original Spanish says 'j,dentro de la
mur") (ibid.,p. 174,and for the Spanish text, p. 188).
It is, therefore, clear that the island to which the proceedings and, subse-
quently, the landgranted to Irala related was Zacate Grande, an island of
the Gulf excluded by El Salvador's submission from its claim in the pres-
ent "island dispute".
145. Notwithstanding the above, the document could still have some
probative value for the island dispute if it proved that the Sub-delegate

Land Judge of San Miguel exercised jurisdiction in matters concerning
composition of tierra realenga located in the islands in general or in some
islands of the Gulf which could be the subject of the present "island
dispute". The evidence provided by the documentation does not,
however, uphold this proposition. First, the Sub-delegate Land Judge of
San Miguel, Pedro del Valle,to whom Irala, aresident in San Miguel, sub-
mitted his original applicationdoubted his own competence to effect the
requested measurement ofthe landconcerned.He expressed his doubts in
the following terms :

"that in attentionthat the denounced island, it is doubtful if it corre-
sponds to this jurisdiction of San Miguel or to the one of Teguci-
galpa, for not been in a litigation of jurisdiction and for not make a
mistake in the determination, this person must concur to [the
Seïior Juez Principal del Real Derecho de Tierras],so that his be so
served to deliver his special despatch, sothat in this Province must
bring to the practice the said diligence and not binding any obstacle
by judges of other territory" (ibid., p. 173,and for the Spanish text,
p. 186).

' The term "lands" (tierras)has been substituted by me in order to follow the Spanish
original. The Salvadorian English translation uses the word "islands".
recea ésra)has been substituted by me. Atthispoint the English translation provided by
El Salvadorreads :"pertaining as appears over here". 146. Thus the Sub-delegate Land Judge of San Miguel himself asked
for a "special despatch" from the JuezPrivativoof the Real Audiencia of
Guatemala. And the JuezPrivativogavePedro del Vallethat "despatch" as
follows :
"to deliver the despatch of assignment to the Judge Subdelegate of
the jurisdiction of San Miguel, sothat can be put in practice al1the
diligencies thatcorrespond to practice inlands with a realengocondi-
tion, about the which, willbe neither obstacle nor someembarrass to
any person" (Counter-Memorial of El Salvador, Ann. X.9, p. 177,
and forthe Spanish text, p. 193).

El Salvador claims (see C4/CR 91/33, p. 50) that this decision of the
"highest judicial authority of the Real Audiencia of Guatemala" recog-
nized thejurisdiction of the Land Judge of San Miguel over the islands of
the Gulf of Fonseca, destroyingthe alleged sovereignty of Honduras over
the islands of the Gulf!
147. A few comments only on that statement: the decision of the
JuezPrivativode Tierrasof the Real Audiencia by no means embodied the
recognition alleged by El Salvador. On the contrary, he authorized by a
"despatch" the Sub-delegate Land Judge of San Miguel to proceed with
the specific matter concerned,the composition of tierrarealenga.No such
authorization would have been needed if the Judge of San Miguel had
been acting within his own territorial jurisdiction. Thereis no confirma-
tion or definition oftheterritorial jurisdiction ofthe local landjudge con-

cerned in the decision of the Juez Privativo de Tierras,but a special
assignment derogating forthe purposes of theparticular casefrom what-
ever territorial jurisdiction another sub-delegate land judge might have.
This was precisely what wasrequested bytheJudge of San Miguel,a "spe-
cial despatch" ("especialdespacho").The Juez Privativode Tierrasof the
Real Audiencia was not empowered to decide on orto modify territorial
jurisdictions, but he could always solve practical problems, as in certain
examples relating to the "land boundary dispute", bywayeitherof an alla-
namientoof the jurisdiction of a given local land judge or, as in the Irala
example, by an authorization amounting toan allanamientoin the event
that another local land judge raised territorial jurisdictional problems.
Thus the whole episode confirms, ultimately, the reverse proposition to
the one alleged by El Salvador (apart from being of no relevance to the
islands of Meanguera and Meanguerita). Further evidence before the
Chamber, concerning subsequent years, shows the regular exercise of
jurisdiction over Zacate Grande by the authorities and judges of the
AlcaldiaMayorof Tegucigalpa.Anexample isthedocumentation concern-
ingthe "succession" ofJuan Antonio Bonillain 1787(Reply of Honduras,

Ann.VII.14,p.424).This documentation alsoconfirms, conclusively,that
the land Irala acquired by compositionwassituated onthe island ofZacate
Grande, namely an island not in dispute in the present case.
*700 DISPUTE (ELSALVADOR/HONDU(R SEPS.P. TORRES BERNARDEZ)

148. The lettersof appointmentof Intendantsand/or AlcaldesMayores
of Honduras and Tegucigalpa respectively, aswellasof SanSalvador and
San Miguel, did not enumerate the islands of the Gulf of Fonseca under
their respective jurisdictions. Nevertheless, those before the Chamber
concerning Honduras and Tegucigalpa are quite specificasto a series of
villages belonging to the Province and Alcaldia Mayor in question. The
names of the villages of Nacaome, Mineral de San Martin, Goascoran,
Langue, Aramesina, Pespire, valleys of San Antonio and San Juan, etc.,

are consistently repeated in the corresponding letters of appointment.
Moreover, the "new village" (nuevapoblacion)of Zacate appears on the
list together with the other villages in documents of the 18thcentury. The
"new village" of Zacate was on the island of Zacate Grande, Le.,on the
island where Irala got his haciendafor cattle in 1766.It wasthe establish-
ment of this "new village" in the island which caused Zacate to be speci-
fically listed inthe letters of appointment. The conclusion is crystal clear.
The islands appear listed wherethey wereinhabited and villageshad been
set up thereon.
149. This does not mean, however, that the islands withoutpopulation
or villages were not placed under a given territorial jurisdiction. The
islands ofthe Gulf of Fonseca were not,during the colonial period, a kind
of noman'sland between two territorial jurisdictions or directly depen-
dent on the central government of the Captaincy-General of Guatemala.

There were some under the territorial jurisdiction of the neighbouring
AlcaldiaMayor ofTegucigalpaand some under the territorial jurisdiction
of the neighbouring AlcaldiaMayor ofSan Miguel.The general criterion
for assignment of the islands between the two Alcaldias Mayores which
prevailed appears quite clear, in the light of the evidence.
150. The island of Conchagüita and other islands off the mainland
Coastinthe Gulf of San Miguel appear tohavebeen under thejurisdiction
ofthis Alcaldia Mayor. Thus the map ofthe Curatodela Conchaguaofthe
Report ofthe Bishop CortésyLarraz of 1770(Counter-Memorial of Hon-
duras, Chap. XII, Sec. II, C, Fig. 1)shows clearly that the island of Punta
Zacate or Zacatillo belonged to the parish of San Miguel.The map iscon-
firmed by the following description in the report:

"In this baythere are a fewsmallislands and on one ofthem, which
has a good deal of soil, there is a cattle ranch belonging to this
parish [Conchagua] and bearing No. 33." (Memorial of Honduras,
Ann. XIII.2.28, p. 2319.)'

There isalso evidenceto the effectthat whenin 1706the inhabitants ofthe
village of La Teca, on the island of La Conchagua or Conchagüita, left
because of the destruction of their village by pirates, they turned to the

' It is to be noted that Cortésy Larraz did not mention in 1770as belonging, in any
respect, to the "parish of Conchagua", the lands acquiredon Zacate Grande in
1766,likewise for the purpose of "raising cattle".

353701 DISPUTE (ELSALVADOR/HONDU(R SESP. PTORRES BERNARDEZ)

authorities of San Miguel in order to acquire new land on the mainland.

The village of La Teca is expressly referred to in the document concerned
as "ofthejurisdiction ofthetownofSan Miguel"(Memofia1 of Honduras,
Ann. XIII.2.26, p. 2317).This should becontrasted with the evidenceon-
sidered above relating to the resettlement of the Indians of the village of
La Miangola, on Meanguera island, who in a similar situation asked for
and got new land in the area of Nacaome because the village of La Mian-
gola, aswas stated bytheCaptain-General of Guatemala, was "ofthejuris-
dictionof theAlcaldia Mayor of Tegucigalpa':

151. In contrast to the islands of Conchagüita and Punta Zacate or
Zacatillo and others off theainland coasts of San Miguel, the islands in
the central part oftheGulf of Fonseca,such as Meanguera,Meanguerita,
El Tigre and Zacate Grande, were under the jurisdiction of the Alcaldia

Mayor of Tegucigalpaand remained under that jurisdiction till the 1821
critical date. There is no possible doubtabout this in the light of the sub-
mitted evidence, either individually or taken as a whole. In 1821,these
islands and the mainland areas of Choluteca, Nacaome and Goascoran
were under the territorial jurisdiction of the Alcaldia Mayor of Teguci-
galpa, itself a part of the Intendencia of Honduras as decided by the
Real Cédulaof 1791 and under the ecclesiastical jurisdiction of the
Bishopric of Honduras since 1672. El Salvador's argument that the
Real Cédulaof 1818had the effect of transferring the Alcaldia Mayor of
Tegucigalpa to the old Gobernacionof Guatemala,as defined furthermore
by the CédulasRealesof 1563and 1564,is an untenableargument in itself
as well as in the light of the findings asto the effects of thisCédula
made by the King of Spain, Alfonso XIII, and the Spanish Council of
State in the already mentioned 1906Arbitration on the Honduras/Nicar-
agua Boundary. From 1786onward the overall interna1 organization of
the Captaincy-General or Kingdom of Guatemala was based upon the

"régime of the Intendencias" alien to the early Gobernacionesof the
16thcentury superseded, in any case, by the establishment in the last part
of that century andduring the 17thcentury of the '~rovincias"and"alcal-
dias mayores"asmain administrative subdivisionsof the Captaincy-Gen-
eral of Guatemala. El Salvador's argument is in contradiction with the
political and legalrealities of theSpanish colonialadministration when in
1821the Republic of El Salvador and the Republic of Honduras emanci-
pated themselves from Spain.

152. The submitteddocumentationcorresponding to the early years of
the 19thcentury confirm those political and legal administrative realitiesof 1821.The 1804Report by the Governor and Intendant of Honduras,
Ramon de Anguiano, for example (Counter-Memorial of El Salvador,
Ann. X.10,p. 195),enumerates as forming part of the IntendenciaofHon-
durasthe Tenenciaof Nacaome,with its parishes of Nacaome and Goas-
coran, and the parishes of the Tenenciaof Choluteca.The islands of the
Gulf of Fonseca are not listed in that report because they did not consti-
tute an autonomous administrative "district". This is clearly reflected, so
faras ecclesiastical jurisdiction over the islands of the Gulf is concerned,
in the brief history of the "Parish of Choluteca" by Fray Manuel Bedaiia
of 1816(Memorial of Honduras, Ann. XIII.2.13, p. 2296). El Salvador
objected to this document, allegingthat Fray Bedaiia was not an ecclesias-
tical authority and, therefore, that the document did not fulfil the second
condition asto admissibleevidencelaid down byArticle 26ofthe General
Peace Treaty. 1will simplyremark that this appeal by El Salvador to that
Article of the Peace Treaty is quite surprising in the light of that Party's
general opposition tothe applicability to the "island dispute" of the 1821

utipossidetis juris and consequently of the first sentence of Article 26 of
the Peace Treaty. It constitutes, in a way, an admission that, after all,that
nom of international law has quand mêmesomething to tell us in the
"island dispute". As tothe general question of admissible evidence in the
island dispute aspect of the case, see my observations in paragraphs 93to
95 of this opinion above.

153. In his history of the "Parish of Choluteca", Fray Manuel Bedaiia
explains that at the time of theseparation of the Parish of Choluteca from
the Bishopric of Guatemala,in order for itto be annexed to the Bishopric
of Honduras, the Bishop of Honduras, BrotherAlonso de Vargas,left the
parish in the hands of parish or secular priests and the guardaniasto reli-
gious orders. And Fray Bedaiia continues as follows :

"From the geographical point of view, the parish of Choluteca
includes the capitalofCholuteca, which hasthestatus ofcity,and the
villages Texigua, Linaca, Oroquina, Yusguare, and the valleys of

Colon Guazaule,Oropoli and the mineralesof El Corpus and al1the
islandsof theGulfofConchaguaorAmapala;theadministrationofthese
islandsand theirnativesisinthechargeof apriest and ofMercedarian
friars, who share the visits to the islands of Sacate, Amapala Mian-
guera, thelargest,wherethere arehermitages,accordingto therecords
of thefraternities whichhavebeen establishedon theirhaciendas, and
whichare administeredbothbythepriestandbytheMercedarian Order.
The Mercedarianfriars used to stay on the islands from the begin-
ning ofJanuary until March or April, dwelling atAmapalaatthe casa
dehacienda, and at Mianguera,atthe hermitage which they had been
able to build with the help of the parishioners who are al1of them
seafarers. These are boatmen who, starting from San Carlos in the
Province of San Miguel undertake transport activities to the destina-
tion of Nicaragua. During the rest of theyear, the islands are isolatedfrom theparish
because of the currentsand tempests;in the months, however,during
which the Mercedarian friars visit them, they take the opportunity to
verify their taxes and carry out a census of the numerous mestizos."
(Memorial of Honduras, Ann. XIII.2.13, p. 2296;emphasis added.)

154. The above description speaks for itself. It dispels the confusion
introduced into the otherwise clear picture through the so-called "eccle-
siastical argument" of El Salvador. The description of Bedafia also con-

firms the contentsof a prior letter, dated 20September 1803,addressed by
Fray Jacinto de la Pazto the Provincial Principal Father of the Mercedar-
ian Order. This letter, submitted as a "new document" by Honduras, has,
inter alia, the merit of referring expressly to the two islands in dispute,
namely to Meanguera and Meanguerita. The letter of Fray Jacinto
de la Paz, later elected commander of the Convent of the Mercedarian
Order in the town of San Miguel', refers to a trip to Meanguera and
Meanguerita authorized by the parish priest of Nacaome. The text reads
as follows :

"1 have, Father Superior, done myduty of relating to you thejour-
ney my companion and 1 have performed through the islandsof the
Gulfof Conchagua,as also did some members of the Guillen family,
who have a little, 35-varas-long boat with 30 oars and sails for

the carriage of goods from the port of Pedregal, jurisdiction of the
town of Comayagua, to San Carlos, jurisdiction of the town of
San Miguel, and ElViejo,jurisdiction of the town of Leon,putting in
at theislandof ElTigre,othenviseknown asAmapala,five leaguesfrom
Pedregalandfrom Amapala to Meanguera is two leagues,from San
Cristobalone league,and hava leaguefrom Mianguera to Mianguer-
ita. Wearecarryingout this visit withtheauthorization of thecurateof
Nacaome, theseislands havingalways belongedto his cure;they have
not received anyvisitsfor a long time because theyhad noinhabitants
any longer,but a whilesincethey werepeopledanew;given thedimen-
sions of the islandsand of the cure,the curatedoes not visitthem ..."

(English translation by the Registry; emphasis added.)
155. Finally, the documents concerning the presence of "insurgent
ships" in the Bayof Fonseca (Reply of Honduras, Ann. VII. 11,p.409),an
event which took place on the eve of independence in April 1819,prove

Afterwards, he asked to be discharged from the Order for reasons of health and
Choluteca. This evidenceonfirms what has already been said as to the need to avoidin
confusion between the control over "convents" or 'kuardanias"and the control by
Bishops over their "diocese".704 DISPUTE (ELSALVADOR/HONDU(R SAEP). PTORRES BERNARDEZ)

the exercise ofjurisdiction as fromTegucigalpa,including Choluteca and
Nacaome, over coasts and islands in the Gulf. Some islands in the Gulf,
i.e.,Conchagua or Conchagüita,Martin Pérez,PuntaZacate, ElTigreand
Los Farallones, are specifically referred to in the documents concerned,
but thisis not the case with Meanguera and Meanguerita.

156. The early Constitutions ofthe Republic of Honduras confirmthat
its territory reaches the Gulf of Fonseca and that there are Honduran
islands inthe Gulf.Theearly Constitutions of El Salvadormentioned that

the territory of the Republic reaches the creek (ensenada)of Conchagua.
But the expression ensenada de Conchaguais also used in further Hon-
duran Constitutions to refer to the "Gulf of Fonseca". The expression
ensenadadeConchaguais,consequently,ambiguous,as itmay refereither
to the coasts of San Miguel or to the Gulf off the coasts of San Miguel.
The "constitutional nominalist argument" is not, therefore, conclusive,
although a certainbroad interpretation ofthe 1821utipossidetisjurisis,no
doubt, ascertainablethroughthe expressions used in those early Constitu-
tions ofthe Parties in sofaras theyshow, nearthe critical date, adifferent
degree of sensitivity aboutthe Gulf of Fonseca and its islands.

157. At the end ofthe colonial period most ofthe islands oftheGulf of
Fonseca including Meanguera and Meanguerita, were sparsely popu-
lated or uninhabited. This and the existence ofother,more urgent political
tasks for newly independent States explained the relatively small atten-
tion paid, during the first years of independence, by the Governments
concerned to the islands of the Gulf. This should not of course berepre-

sented as ifthose Governments altogether ignored the islands of theGulf
or were indifferent to "sovereignty" over them. After all, as indicated,the
early Constitutions referred to the "Gulf of Fonseca"nd/or the ensenada
of Conchagua,namely to the "maritime space" within which the islands
are situated.

158. Furthermore, to speak of the Governments' silence on the islands
during the first years of independence isnot an accurate representation of
the facts. That of Hondurasadopted a series of administrative and legisla-
tive actions concerning El Tigre and other islands inthe Gulf of Fonseca.
These actions, which took place wellbefore the British intervention in the
Gulf of 1848-1849,are also part and parce1of the case-file of the "island
dispute", as recorded in theJudgmentin connection with El Tigre island.
They were actions carried out inthenormal course ofevents, not bywayof
demonstratingany "claim", and they began years before the Republic of
El Salvador began to act with respect to certain islands in the Gulf. The
policy and actions ofboth Republics wereto converge by the middle ofthe
19th century (in 1854)on a particular island of the Gulf, the island of Meanguera, which, as a result, became an island in "dispute" between
them. Butbefore thatdate therearesome pieces of evidence of post-inde-
pendence conduct of the Republic of Honduras confirmatory of the
1821utipossidetisjuris situation of Meanguera and Meanguerita resulting
from the submitted Spanish colonial documents analysed above, such as
the revealing evidenceof the Honduran project to sel1land in the islands
of the Gulf, including Meanguera,the evidence provided for by the 1852
application to the Honduran Government of Echeline, Rojas and Mora
Company, and the surveycarried out inthe island of Meanguera .There is
no evidence in the case-file of any post-independence conduct of the
Republic of El Salvador between 1821and 1854with respect to Mean-
guera. The allegations of a so-called "agreement" of 1833have not been
substantiated before the Chamber.

159. Inthe light of the above, 1conclude that, from the standpoint of
the uti possidetis juris, sovereignty over Meanguera and Meanguerita

belonged in 1821to the Republic of Honduras, which has proved this
clearly during the current proceedings on the basis of documentation
reflecting colonial effectivité. ot a single civil or ecclesiastical Spanish
document submitted to the Chamber upheld the contras. proposition.
This conclusion is confirmed by the conduct of the Parties in the years
following independence until 1854. 1 am, therefore, in total disagree-
ment with the inconclusive finding of theChamberas tothe utipossidetis
jurissituation of Meanguera and Meanguerita in 1821,recorded in para-
graph 367ofthe reasoning oftheJudgment. This finding contradicts, inter
alia, the statement made by the Captain-General of the Captaincy-
General or Kingdom of Guatemala in 1684to the effect thatthe island of
Meanguera belonged to the jurisdiction of the Alcaldia Mayor of Tegu-
cigalpa (see paras. 121-125above). It isquite surprising, indeed,that such
an important piece of uti possidetis juris evidence has not been sub-
jected to legal analysis in the reasoning of theJudgment.

(b) Fromthestandpoint of the conductof theParties subsequen tt 1854

(i) Meanguera

160. The origin of the development of conflicting views and claims of
the Parties on Meanguera island isnot unconnected with the interest that,
for a while, the islands aroused in the chancelleries of certain great
Powers,namely the United Kingdom and the United States.Thisexplains

the episode of the British and American diplomatic intervention through
consular officers as well as the short British military occupation of
El Tigre (1848-1849)as a guarantee for the reimbursement of debts byHonduras. Butthe veryfactthat ElTigrewasone ofthe islands oftheGulf
occupied by British forcesmakes it very clear that it was not the presence
or absence of State effectivitésbyoneor otherCentral American Republic
in the islands of the Gulf which furnished the raison d'êtreof the short
British occupation. El Tigre was precisely one of those islands in which
the effectivitésof the Republic of Honduras were by that time established
and manifested. But Hondurasdid not establish or manifest effectivitésso
early and so intensively with respect to the island of Meanguera. One
must, however, point outthat until 1854,namely five years after the Brit-
ishintervention, ElSalvador did not make any public claimto Meanguera
island either.

161. As already explained, El Salvador's first claim of "sovereignty"
over Meanguera was put forward in October 1854and was prompted by a
commencement of exercise by Honduras of effective State authority on
the island - which the Government of Honduras had always considered
to belong to the Republic of Honduras by virtue of the 1821utipossidetis
juris.Following the 1854Salvadorian claim, the Government of Hondu-
ras considered that Meanguera was an island "in dispute" between the
two Republics. This position of the Government of Honduras did not
change afterthe rejection by the Congress of Honduras of the unratified
1884Cruz-Letona convention which, interalia,allocated Punta Zacate,
Martin Pérez,Conchagüita and Meanguera to El Salvador and Zacate
Grande, El Tigre, Exposicion and Inglesa to Honduras.

162. During the last quarter of the 19th century, a Salvadorian pres-
ence in the island of Meanguera began to manifest itself mainly by the
granting of land, and during the first years of the 20th century that con-
duct began to find expression in Salvadorian legislation and/or state
effectivitésof El Salvador on the ground. In the current proceedings,
El Salvador has produced a witness and submitted documentary evi-
dence, mainly on: birth and death certificates; taxation; census; land
rights decisions; civiland criminal proceedings; licences;postal services;
health services; education; publicworks; military appointments and dis-
charges; appointments of local judges and the holding of elections. This
has variable probative value asto State effectivitésbut, taken al1together, 1
consider it to be a sufficient indication of State effectivitby El Salvador
in Meanguera island, particularly during the last decades. These effectiv-
itésprove, in any case, what the defacto situation isin the island of Mean-

guera, described in the title of the Salvadorian "Meanguera dossier"
submitted at the current proceedings "as the status quo" on the island of
Meanguera.

163. Thissituation - cal1itstatus quo orotherwise - iscertainly proof
of the present effective possession by ElSalvador of Meangueraisland. It
proves the very fact of present State effectivitésby El Salvador on the
island. But, in international law, these effectivitésare not in themselves707 DISPUTE (ELSALVADOR/HONDU(R SAEP. P.TORRES BERNARDEZ)

capable, in the circumstances of the present case, of conveying sover-
eignty over Meanguera to El Salvador (see paras. 103-104above). They
could do so only, if atll, through the activation of an independent norm
of international law applicable between the Parties. If cause is found to
apply such a norm, one may have to decide whether it prevails over the uti
possidetisjuris norm "as it operated in 1821". If it is held to prevail, the
"sovereignty" over Meanguera resulting from application of the latter
might be seen to have been displaced or modified in favour of El Salvador.
Otherwise the utipossidetisjuris definition of the "sovereign" of Mean-
guera must hold good, even over and despite the present existing and

proven "State effectivités"of El Salvador.

164. This appearsto me the correct approach because, in the circum-
stances of the present case, any construction according to which the exist-
ing StateeflectivitésofEl SalvadorinMeangueracould beused as ameans
of interpreting the 1821 uti possidetis juris constitutes an unwarranted
proposition. These effectivitésof El Salvador were actually established
and manifested very late indeed with respectto the 1821critical date. The
Party which first took the initiative of manifesting itself in the island as
"sovereign", pursuant to the 1821 uti possidetisjuris, was, as just men-
tioned above, Honduras and not El Salvador. The State effectivitésof
El Salvador developed, furthermore, after Meanguera became an island
"in dispute" or, in any case, long after El Salvadof's first claim - in
1854 - of "sovereignty" over Meanguera. The Parties are in disagreement
asto whenthe dispute on Meanguera definitely crystallized,but there isno

clue in the case-fileto suggest that it arose before 1854.

165. The existence at different times between 1854and 1986(the date
of the Special Agreement) of conventional status quo obligations forthe
Parties and, at times, even conventional obligations on peaceful settle-
ment proceedings add to the present situation elements of appreciation
that cannot be altogether ignored when establishing the originalinterpre-
tation ofthe 1821utipossidetisjuris by the Parties. Concerningcertain very
belated State effectivitésof El Salvador, the obligation assumed by the
Parties under Article 37 of the 1980General Peace Treaty has also to be
implemented. Moreover, the rule that mightconceivably be applied on the
basis of the effectivirconcerned is not the conventional norm of a treaty
between the Parties, as in thelater Argentine-Chilean arbitrations, but a
customary nom of international law. In the light of al1these circum-

stances,1 consider thatthe State effectivitésofEl Salvador cannot betaken
as a means of interpreting the 1821 uti possidetisjuris. They cannot be
made an expression of the 1821 uti possidetisjuris through "interpreta-
tion". Hence an independent norm of international law is required in
order to reach the conclusion that the said State effectivitésdo result in a
change of "sovereignty" over Meanguera.

166. "Peacefulness" and "continuity" in the exercise of a State'sauthority are not the only elements involved here. "Good faith" is also
partand parce1ofthe picture. One may question, as ElSalvador does, that
the dispute started in 1854,but it is undoubtedly clear that a dispute on
sovereignty over Meanguera existed by the time of the 1884Cruz-Letona
negotiations, and the proven State effectivitésofElSalvador begin far later
than 1854and even,for al1practical purposes, 1884.Moreover,there isthe
difficultyrepresented bythe basic legal status of Meanguera. None ofthe
Parties claim that Meanguera was in 1821, 1854, 1884,or at any moment

thereafter, terra nullius.In the circumstances of the case,what appears in
fact and lawto be the decisive factor isnot the characterization of El Sal-
vador's effectivitésinMeanguera assuch butthe evaluation of Honduras's
conduct with respect to them and to their gradua1development.

167. According to the evidencebefore the Chamber, theactualconduct
of Honduras subsequent to 1854up to the middle of the 20th century does
not show that intensity of opposition to El Salvador's presence in Mean-
guera which wouldbe expected for an island which had been "in dispute"
since 1854.Honduras should, for example, have reacted more strongly on
the occasion of El Salvador's survey of land on Meanguera island in
1878-1879,or in connection with the capture of General Saenz in Mean-
guera in 1894,or with respect to the 1893 Salvadorian legislation con-
cerning the creation of aschool for girlsin Meanguera, and, in particular,
on the establishment in 1916by El Salvador through legislation of the
communeof "Meanguera del Golfo". Neither do the Cruz-Letona nego-
tiations ortheunratified 1884convention, orcertain matters quotedin the
1917Judgement oftheCentral American Court ofJustice, not to mention
other events, show overa considerable number of years that vigilant con-
duct on the part of Honduras with a vie~ to protecting its utipossidetis
jurisrights in Meanguera, in the face ofthe presence and actions of El Sal-

vador in the island, which could have been expected under international
law.
168. Itfollowsfrom the above,onthe basis ofthe evidencecontained in
the case-file as a whole, that the Honduran past conduct, at the relevant
period, together with the development of the State effectivitéof El Sal-
vador in Meanguera, modified at a certain momentthe legal situation in
Meanguera in favour of El Salvador's claim on that island. 1therefore
broadly concur with the Judgment when appreciating the effects of the
State effectivitéof ElSalvador in Meanguera and the conduct of Hondu-
ras related thereto. But itsthrough theinterplayof the twoelementsthat a
new legal situation arises in the relations between the Parties with respect
to Meanguera, which does not correspond to the one resulting from the
application of the 1821 uti possidetisjuris mentioned in paragraph 159
above, and not merely because in 1854El Salvador asserted a claim to the
island and, years later, took effective possession and control of Mean-
guera. In this respect the conclusion of the Chamber as drafted in para-
graph 367of its reasoning is certainly defective, because Meanguera wasan island avec maîtreandthat maîtrehad since 1821been the Republic of

Honduras. Thus itcannot be said that the past conduct of Honduras, atthe
relevant period, made "definitive" the sovereignty of El Salvador over
Meanguera. El Salvador's sovereignty over that island remained non-
existent right up to the very moment when the acquiescence of Honduras
could be deemed as established under international law and exists onlyas
from that point intime.

(ii) Meanguerita

169. The 1821utipossidetisjuris, onthe other hand, must needs prevail
in the case of Meanguerita. In this second island in dispute, there are
neither "State effectivitéof El Salvador nor anyevidence of acquiescence
or consent by conduct on the part of Honduras. Thus there is no nom
of international law applicable to Meanguerita capable of conveying
sovereign territorial rights otherhan the utipossidetisjuris of Honduras.

170. El Salvadorhasnot proved any physical or material State effectiv-
itésin Meanguerita or performed any forma1 act of "sovereignty" with
respect to Meanguerita. Neither isthere any evidence of El Salvador hav-
ing assumedany administrative responsibility with respect toor inMean-
guerita. Thus a determination of the legal situation of Meangueritafrom

the standpoint of the "State effectivités"of El Salvador and related past
conduct of Honduras leads nowhere. Some informationcontainedinthe
evidence submitted on the "maritime spaces dispute" refers to "navy
patrols" in waters near Meanguerita,but by both Parties and,to state the
obvious, these activities did not take place on Meangueritabut on the sea,
however near the island.

171. No attempthasbeen made by either of the Parties to prove "State
effectivitésconcerning the island of Meanguerita. Those attempts would
in any case have been, to Saythe least,venturesome, simply because there
have been no post- 1821"State effectivités" on Meanguerita. The dispute
between the Parties as to the "sovereignty" over Meanguerita has, there-
fore, a legal dimension of its own.It is a case of attribution of sovereignty
over an island which is, by definition, an island avec maître and with
respect to which no post-independence "State effectivités"of one Party
and related consent by conduct of the other Party has taken place. El Sal-
vador has not created any status quo or defacto situation concerning
Meanguerita, asit has inthe case ofthe island of Meanguera. No Salvado-
rian physical or forma1acts of apprehension of "sovereignty" over Mean-
guerita have been reported to the Chamber. In these circumstances,
"sovereignty" over Meanguerita must needs continue to be governed
exclusively by the 1821 utipossidetisjuris of Honduras.
172. Meanguerita is,certainly,a much smallerisland than Meanguera.
Butthereare many stillsmallerislands within the GulfofFonseca, such asLos Farallones, which are placed under different "sovereigns". Mean-
guerita is indeed located next to Meanguera,but this is incasuno reason
to avoid determining "sovereignty" over Meanguerita on its own merits.
The concepts of "distance" and/or "proximity" assuch are irrelevantinde-
termining sovereignty over Meanguerita in the circumstances of the case.
Furthermore, a mere glance at any political map of the world suffices to
make one appreciate that "sovereignty" overislands isnot subject to such
broad concepts as "distance" or "proximity". There ishere no dispute on
"maritime delimitations" but a "land dispute" concerning islands. This
dispute, on the other hand, is not defined by the Special Agreement by
reference to "archipelagoes", "groups of islands" or "maritime zones"
within the Gulf of Fonseca.

173. The "island dispute" before the Chamber was a dispute over two
individual islandswithin the Gulf.It is the legal situation of each of those
islands on its own meritsand not the "archipelago" formed by them that
should have been the subject of the Chamber's determination.The men-
tion, for example, that "occupation" of a 'brincipalisland"must also be
deemed to include therein smallislands, isletsand rocks ofthe same archi-
pelago, oraround the said "principal island", is quite beside the point in
the light of the factual and legal circumstances of the present case. The
"appendage" thesis relied on by El Salvador, whatever its legal signifi-
cance in certain situations, isof no operative value in the present one, any
more than "distance" or "proximity", except - and onlyexcept - within
an application of the 1821utipossidetisjuris, in that it is a matter of com-
mon sense that, if Spanish authorities placed Meanguera under the juris-

dictions of the Alcaldia Mayor of Tegucigalpa and the Bishopric of
Comayagua (Honduras), the very geographical location of Meanguerita
provides a strong clue as to the civil and ecclesiastical jurisdiction to
which itwas assignedby the said authorities, as proved on the other hand
by the evidence indicated in paragraph 154above.

174. The principles and rules of international law applicable to the
present "island dispute" are not those concerning acquisition of sover-
eignty through "occupation" of terra nulliusislands, principal or other-
wise, followed by effective administration. Not at all. They are the uti
possidetis jurisand, eventually, the "State effectivités"of one Party and
related conduct of the other Party. Such effectivitésand conduct are
simply missing in the case of Meanguerita. The fact that the "appen-
dage" thesis could operate in certain situations pursuant to a given prin-

ciple or nom does not at al1allow one to conclude that it must also
operate in determinationsmade in accordance with other legal principles
or noms.

175. Moreover, the geographical location, physical features and condi-
tions for human habitation afforded by Meanguerita do not warrant adetermination in casubased upon the "appendage" thesis. There is natu-
ralvegetation onMeanguerita.The island isat present uninhabited. There
is,therefore, no human argument to be pondered. Onthe other hand, the
Chamber knows that the island is not uninhabitable. Ithas been said that

there isaproblem concerning the availability of a source of fresh water on
the island, but this circumstance, if verified, could be remedied in these
present-day times. In any case, "sovereignty" over an island with vegeta-
tion and the possibility ofsustainingnormal lifeisnot conditional ininter-
national law on the existence or non-existence of fresh water, or of a
particular kind offresh water, on the islandconcerned. Thereare certainly
better conditions for the sustenance of human life to be found in Mean-
guerita than in other islands of the Gulf.
176. The application ofthe "appendage" thesis to an island like Mean-
guerita would have been open to challenge even in cases attracting the
application of the rules governing acquisition of terra nullius.To attempt
to apply it in a different internationalaw environment, namely in a case
where the island concerned is aterritory avecmaître and does not present
any abnormality from thestandpoint of itsgeographical location, its phy-
sical features and/or its conditionsfor sustaining human life is,sofaras 1
can see, totally unprecedented. Yet the Judgment does just that, on three
grounds, namely (a)inconclusiveness as to the utipossidetisjuris position

of Meanguera in 1821 on the basis of colonial titles and effectivités;
(b)characterization of Meanguerita as a "dependency" of Meanguera in
the sense ofthe relevantjurisprudence of the Minquiersand Ecrehoscase;
and (c)impossibility of consideringthatthe legalposition of Meanguerita
could have been other than identical with that of Meanguera (para-
graph 367of the reasoning of the Judgment). 1reject as unfounded these
three propositions. Consequently 1have voted against the corresponding
operative subparagraph, which 1cannot uphold in the circumstances of
the present case and of the law applicable to it. El Salvador did not assert
any claim to Meanguerita in 1854,neither has itsince taken effectivepos-
session and control of that island. That being so, it is an impossibility for
Honduras to have acquiesced inthe exerciseofsovereigntyby ElSalvador
on the island of Meanguerita.

D. OverallConclusion

177. In the light of the above, my overall conclusion on the two islands
in dispute between the Parties, namely Meanguera and Meanguerita, is
that the sovereignty over Meanguera belongs atpresenttothe Republic of
El Salvador on the basis of its "State effectivités"in the island and the
related past conduct of Honduras at the relevant period. A modification
of the rights of Honduras derived from its 1821 uti possidetisjuris on
Meanguera has,therefore,been effected bytheoperation of other rules of
international lawwhich are also applicable inthe present case byvirtue of
Article 5 of the Special Agreement. Such a modification has not takenplace, however, conceming the 1821 utipossidetisjuris of Honduras on
Meanguerita. Consequently, today, as in 1821,sovereignty over Mean-
guerita belongs, in my opinion, tothe Republic of Honduras.

III. THEMARITIMD EISPUTE

A. TheRégime of the Gulfof Fonsecaand Its "HistorieWaters".
Entitlementto Maritime SpacesinthePacijïicOceanSeaward

ofthe Closing-Line of theGulfof Fonseca

178. 1have no observations to make on paragraphs 381to 420 of the
reasoning of theJudgment. 1 acceptthem intotoand have voted infavour
of operative paragraph 432,subparagraphs 1and 3.TheGulf of Fonseca
is a "historic bay" to which the Republic of Honduras, the Republic of
El Salvador and the Republic of Nicaragua succeeded in 1821on the
occasion of their separation from Spain and their constitution as inde-

pendent sovereign nations. The waters of the Gulf are "historic waters",
their "historic" status being in existence when the "successorial event"
took place '.This means thatthe sovereign rightsof each and everyone of
the three Republics inthe waters oftheGulfcannot be subject to question
by any foreign Power. But at the moment when the succession occurred
the predecessor State had not - administratively speaking - divided the
waters of the historic bay of Fonseca between theterritorial jurisdictions

of the colonial provinces, or units thereof, which in 1821formed respec-
tively one or another of the three States of the Gulf. It follows therefore
that the waters of the Gulf which had not been divided by Honduras,
El Salvador and Nicaragua subsequently to 1821remain held in sover-
eignty by the three Republics jointly, pendingtheir delimitation.

' As stated in the 1917Judgement of the Central American Court of Just:ce
"The historic origin of the right of exclusive ownership that has been exercised
over the waters of the Gulfring the course of nearly four hundred years isincon-
trovertible, first, under the Spanish domi-ifrom 1522,when itwasdiscovered
and incorporated into the royal patrimony of the Crown of Castile, down to the
year 1821 ..."(AmericanJournal of International Law, 1917,Vol. 11,p. 700.)
This statementreflects correctly the legal situation of the waters of theGulfof Fonseca
in 1821.The waters of the Gulf wereen under the exclusivesovereignty orjurisdiction
of Spain. Asdescribed in the presentJudgment, the Gulf was discovered by the Spanish
navigatorAndrésNiÏio in 1522,whonamedtheGulf after Juan Rodnguez de Fonseca,
Bishop of Burgos(appointed President ofthe Consejode Indiasby the King in 1524),the
patron of his expedition, which had beenorganized bytain Gil Gonzalez Davila. By
namingthe Gulf as he did,AndrésNiÏio complied with the provisions in the Spanish
Laws for the Indies which ordered the naming of newly discovered places (see, for
lcontinuedonnexrpage)7 13 DISPUTE (ELSALVADOR/HONDU(R SESPO. PTORRES BERNARDEZ)

179. The "joint sovereignty" status of the undivided "historic waters"
of the Gulf of Fonseca has, therefore, a "successorial origin" as stated in

the Judgment. It is a "joint sovereignty", pending delimitation, which
results fromtheoperation of the principles and rules of international law
governingsuccession to territory, the "historic waters" of the Gulf of Fon-
seca entailing, likeanyother historic waters, "territorial rights" belonging

to the three States of the Gulf. These three States, on the other hand, have
themselvesaccepted freely the condition of "successor States". The pres-
ent Judgment limits itself to declaring the legal situation of the waters of
the Gulf of Fonseca resulting from the above and subsequent related

developments, i.e., to declaring the existing "particular régime" ofthe

iconrinufrom previouspage)

example, Law 8,Book IV,Title 1of the Recopilacion).The naming of newly discovered
places was also at that period viewed by the law of nations asa symbolicact of posses-
sion. Naming was but one of the accepted forms of symbolic acts of possession. The
performance of such acts was restricted by no means to mainland areas or places.They
were also accepted and performed with respect torivers, islands and maritime spaces.
For example, as is well known, when in 1513Nufiez de Balboa crossed the isthmus of
Panama and reached for thefirst time,comingfrom the West,the Pacific Ocean, he took
possession of the sea,that he namedMar delsur, on behalf of the Crown of Castile, by
performing symbolic acts of possession.AndrésNino discovered the Gulf of Fonseca
only a fewyears later (1522),coming,precisely,from Panama by navigating throughthe
said Mardel Suralong the coasts of Central America in a general north-westerly direc-
tion. The Spanish Lawsforthe Indies leftatthe discretion ofthediscovererthe choice of
the particular form of the act of symbolicpossession to be performed. They wereup-
posed to perform "losactosqueconvinieran,losqualestraiganenpublicaforma, y manera,
que haganfee" (Law 11,Book IV, Title II of the Recopilacion).The acts of symbolic
possession described were effected in application of the overall international title
bestowed upon the Crown of Castile as expressed in the Law enacted by the Emperor
Charles 1on 14September 1519(namely three yearsbefore the discovery of the Gulf of
Fonseca) entitled "De el Dominio y Jurisdiccion Real de Indias", and whose opening
words read as follows:

"Pordonacionde la Santa Sede Apostolica,y otrosjustos y Iegitimostitulos,somos
Sefiorde las Indias Occidentales,Islasy TierraFirme delMar Oceano.descubiertasy
por descubrir.y estan incorporadasen Nuestra Real Coronade Castil.. ."(Law 1,
Book III, Titleof the Recopilacion.)

before 1821of the "dominioyjurisdiccion"of the Crown of Castile over the Gulf. Theations

deaIndias reports on the situation in the areas of their respective territorial jurisdiction.
This was alsodone with respect to the Gulf of Fonseca. The exclusivejurisdiction ofthe
Spanish Crown overthe Gulf of Fonseca islikewiserecorded clearly in Spanish colonial
general legislation as, formple, in the CédulasRealesof 1563and 1564referred to in
connection with the "island dispute". This exclusivejurisdictiois confirmed by the
cartography of the times- for example, by a map of1601 entitled "Descripcion de la
Audiencia de Guatemala" of the Cronista v Cartb~rafo Oficial for the Indies.
Antonio de Herrera y Tordesillas, submitted tothe ~rbytrt~lrkunal in the ond duras
Borders(Guatemala/Honduras) ina9s9-1933.Herrera v Tordesillas isthe author of
the work entitledistoria Generaldelos Hechos~astellanos~nlasIslasy TierraFirmedel
Mar Oceanopublished in Madrid in 1601.

366Gulf of Fonseca as a "historic bay" in terms of contemporary intema-
tional law but without adding elements of any kind to that "particular
régime"as it exists at present '.

180. The individual elementscomposing at present the said "particular
régime" ofFonseca as a "historic bay" certainly Varyin nature. Some
result from the succession exclusively,othersfromsubsequent agreement
or concurrentconduct (impliedconsent) ofthethreenations ofthe Gulf as
independent States.The Judgment isdeclaring al1ofthem asthey stand at
this moment, account having been taken of evidence and argument sub-
mitted by the Parties and the intervening State. The decision of the Judg-
mentis not,therefore,a piece ofjudicial legislation and should notbe read

that wayat all. TheJudgment declares "the legal situation ofthe watersof
the Gulf of Fonseca" established at present with its successorial and con-
sensual elementswithout modifying them inany respect. Due accounthas
been taken by the Chamber of the 1917Judgement of the Central Arneri-
can Court of Justice in the process of ascertaining the present legal situa-
tion of the waters ofthe Gulf, butthe present Judgment is not, and should
not betaken as,ajudgment onthe interpretation and/or application ofthe
said 1917Judgement. Conversely, the 1917Judgement is not an element
for the interpretation or application of the present Judgment, which
stands on its own feet.

181. By declaringthe "particular régime" ofthe historic bay of Fon-
seca in terms oftheinternational law in force, and not of the international

law of 1917or before, the Judgment clarifies a certain number of legal
issues that,because they were describedin the 1917Judgement by refer-
ence to the old law, have been at the bottom of misunderstandings, per-
plexities and quite a lot of confusion. The Judgment does that with
respect, for example, to the "intemal" character of the waters within the
Gulf,the meaning of the "one marine league" belt of exclusive jurisdic-
tion, the "baseline" character ofthe closing-line oftheGulf, and the deter-
mination of those States which participate as equal partners in the "joint
sovereignty" over the undivided waters of the Gulf. Passages in the
1917 Judgement conceming directly or indirectly those or other legal
issues are not, therefore, supposed to interfere with the application

' Theconceptof "historicwaters"and theconceptof "historicbay" arenotsynony-
mousinasmuchas "historicwaters"may exist without the atersconcerned belonging
to a "historic bay". Howeveri,t is not in myopinion correctto hold, conversely,that
"historicbay"are "historicwaters"a,sinthecaseoftheGulfof Fonseca.Thisiscorrob-
oratedbythe title givenby theFirstUnited NationsConferenceon the Lawof the Sea
and bythe General Assemblyto the topic ("Historic waters, including hibays")
referred by thelattertothe InternationalLawCommission forcodification.and/or interpretation of the conclusions and decisions of the present
Judgment.
182. The "maritime belt" of exclusive jurisdiction or sovereignty of
"one marine league" isconsidered bythe Judgment asforming part ofthe
"particular régime" ofFonseca as a "historic bay", but the present Judg-
ment is not a judgment dealing with - or effecting - delimitations of
"maritime belts" as at present established.The "maritime belt" of exclu-
sivejurisdiction or sovereignty is one of those elements of the "particular
régime" ofFonseca which possess a "consensual" origin. It does not pro-
ceed fromthe objective lawon succession.The scope ofthe States'present
consent to the "maritime belt" has notbeen pleaded inthe case.Anyprob-
lem which might arise concerning entitlements to and delimitations of

"maritime belts", their location, etc.,isa matter to be solved by agreement
among the riparian States. The "one marine league" of maritime belt
agreed upon by the concurrent conduct of the three States would, in the
light of evidence and argument submitted, appear established as the
accepted breadth in respect of their mainland coasts on the Gulf, but
whether they have agreed to apply it unconditionally, generally and
uniformly to theirnon-mainland coasts within the Gulf is a matter which
has not been pleaded before the Chamber. Still less has any submission
been filed thereon. Yet within the Gulf there are not only "islands" in the
proper sense but also "islets", "rocks", etc., and two of the "islands"
(Meanguera and Meanguerita) have been in dispute in the present case.
Moreover, the "historic" as well as the "internal" generalcharacter of the
waters inthe Gulf, as recognized in theJudgment, precludes the possibil-

ity of settling that kind of matter by invoking the mere operation of the
general law of the sea. Thus, here too, agreement amongthe States of the
Gulf offers the obvious solution.

183. The rights of Hondurasas a Stateparticipating, on a basis of per-
fect equality with the other two States of the Gulf, in the "particular
régime" ofthe Gulf of Fonseca are fully recognized by the present Judg-
ment and this is, for me, a ground of particular satisfaction in the light of
some argument at the current proceedings aimed at occluding Honduras
atthe back oftheGulf. Consequently, Honduras holds sovereigntyjointly
with El Salvador and Nicaragua over al1the waters of the Gulf subject to
"joint sovereignty", wherever they may be located, including the central

portion - as defined by theJudgment - of the Gulf s closing-line, these
waters of the Gulf held by thethree States in "joint sovereignty" being of
course susceptible of division through delimitation. A second reason for
satisfaction isthatthe statusof Honduras asa Pacific Ocean coastal State
is also fully confirmed by the Judgment, which recognizes Honduras's
entitlement to a territorial sea, a continental shelf and an exclusive eco-
nomiczoneseawards of the said central portion of the closing-line of the
Gulf in the open waters of the Pacific Ocean, as well as correspondingentitlements of El Salvador and Nicaragua, delimitation having to be
effected in those maritime spaces by agreement on thebasisof internatio-
nallaw.

B. ne Question of the Cornpetence of theChamber to Effect Maritime
"Delimitations':iShePlea of Non-CompetenceSubmitted by El Salvador.
"Mootness"of theIssue

184. Having found, as indicated above, that the waters of the Gulf
of Fonseca are held in sovereignty by the Republic of El Salvador, the
Republic of Honduras and the Republic of Nicaragua jointly (subject
to defined exceptions) and that entitlements to territorial sea,continental
shelf and exclusive economic zone in the Pacific Ocean seawards of the
central portion ofthe closing-line ofthe Gulf of Fonseca appertains to the

said three Republics, the Chamber cannot,in my opinion, proceed to any
"delimitation" of the maritime spaces concerned, within or outside the
Gulf,forthe simplereason that thiswould amount to delimitingmaritime
spaces in which the Judgment has recognized the existence of rights and
entitlements of the Republic of Nicaragua. Although granted by the
Chamber alimitedintervention inthe case,the Republic of Nicaragua has
not, by virtue of this authorization, become a "party" to the casebecause,
interalia,the Parties to the casedid not givetheir consent forthe Republic
of Nicaragua to participate inthe proceedings as a "party". Furthermore,
following the Chamber's granting it a non-party intervention under Arti-
cle62ofthe Statute ofthe Court, the Republic of Nicaragua declaredthat,
in the light of the conditionsattached to its participation in the proceed-
ings as an intervening State, the Judgment would not have for it the
resjudicata force provided for in the case of parties by Article 59 of the
Statute. Giventhissituation, the question ofthe competence of the Cham-
ber to effect delimitations inthe maritime spacesconcerned inthe present

case - an issue which has divided the Parties so much at the current pro-
ceedings - has become a "moot" issue. It issobecause, independently of
the competence vested in the Chamber by the Parties under their Special
Agreement, the Chamber isnot now entitled to delimitmaritime spaces in
which rights and entitlements of the Republic of Nicaragua have been
recognized by the Judgment.

185. This supervening "mootness" is consequent upon decisions
reached by the Chamber itself. Procedurally, however, the consequences
are identical to those in casesof "mootness" resultingfrom circumstances
external to the proceedings. A perusal of operative clauses of judgments
and orders of the Court reveals that when submissions or claims made by
the parties or a party become "moot" the fact that the cause of such
"mootness" isinterna1or external to the proceedings isirrelevant. In both
hypotheses, the Court has held consistently that itisno longercalled upon
to give a judicial decision on the submission or claim concerned, therationale behind this being that the said submission or claim is as from
that moment without object and, therefore, pointless. Pronouncements of
the Court in that sense may be found,for example, in the following cases :
Monetary Gold Removed from Rome in 1943 (I.C.J. Reports 1954,
pp. 32-34); Interhandel (I.C.J. Reports 1959,p. 26); Northern Cameroons
(I.C.J. Reports 1963,pp. 36-38); FisheriesJurisdiction (United Kingdomv.
Iceland),Merits(I.C.J. Reports 1974,pp. 19-20) ;Nuclear Tests(Australiav.

France)and (NewZealandv. France)(I.C.J. Reports 1974,pp. 270-272and
pp. 476-477);Applicationfor Revisionand Interpretation oftheJudgment of
24 February 1982in the Case concerningthe Continental Shelf (Tunisia/
Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) (I.C.J.
Reports 1985,pp. 221and 230).
186. This is the course of action that, in my opinion, should also have
been followed bythe Chamber inthe present instance inresponding to the
plea of El Salvadorthat the Special Agreement had not vested the Cham-
ber with jurisdiction to effect "delimitations" in the maritime spaces
either inside or outside the Gulf of Fonseca. For reasons of its own, how-
ever,the Judgment, followinga different path, has made ajudicial deter-
mination on the issue in subparagraph 2 of its operative paragraph 432.
This determination leavesme nooptionbut to explain below mydisagree-
ment with the merits of a finding which, in any case, concerns, as indi-
cated above, an issue which, asthe result of theChamber's determination
of other points of law, hasbecome "moot".
187. The non-competence plea of ElSalvadorreferred to inthe preced-
ing paragraph being in contradiction with the submissions of Honduras,
an interpretative disputearose between the Parties concerning the mean-
ing of the expression "determinar la situacionjuridica ... de los espacios
maritimos"contained in Article 2,paragraph 2,ofthe Special Agreement.
Thedispute revolved verymuch on the verb "determinar"("to determine")

and on the words "lasituacionjuridica "("the legalsituation"). Did the use
of this verb and these words barthe Chamber fromjurisdiction to delimit
the "maritime spaces" concerned? The Chamber was, of course, fully
empowered to decide the issue pursuant to Article 36, paragraph 6, of
the Statute ofthe Court,and neither ofthe Partieschallenged itspowersto
do so.
188. The lawonthe basisof which the above interpretative dispute falls
to be decided comprises the rules governing the interpretation of treaties
which have been codified by the 1969Vienna Convention on the Law of
Treaties (Arts. 31 and 32). It is generally recognized that these Articles of
the Vienna Convention reflect the customary law in the matter. The Judg-
ment of the Court of 12November 1991on the ArbitralAward of 31July
1989 (Guinea-Bissau v. Senegal) contains a statement inspired by that
proposition (I.C.J. Reports 1991,p. 69,para. 48).It may alsobe added that
the corresponding draft articles were prepared by the International Law
Commission as codification of existing law in the light of the relevant
jurisprudence ofthe present Court and of the Permanent Court,and they
were unanimously adoptedat the plenary by the United Nations Confer-718 DISPUTE (ELSALVADOR/HONDU(R SEPS.)P. TORRESBERNARDEZ)

ence on the Lawof Treaties,following rejection atthe committee level,by
quite large majorities, of someamendments initially submitted. 1concur,
therefore, with the reference made intheJudgment to the "general rule on
interpretation" (Art.31)and to the rule on "supplementary means ofinter-
pretation" (Art. 32) of the Vienna Convention. At this point, however,
unfortunately, 1part Companywith the Judgment as to the matter under
consideration, for reasons of principle as well as on account of the appli-
cation made incasuoftreaty interpretation rules. 1can sharein this respect
neitherthe reasoning northe decision of theJudgment which 1,of course,
respect.
189. The reasoning of the Judgment begins by recalling that no refer-
ence is made in Article 2, paragraph 2, of the Special Agreement to any

"delimitation" bythe Chamber of the maritime spacesreferred to therein
andthat forthe Chamberto havetheauthority to delimitmaritime bound-
aries, whether inside or outside the Gulf of Fonseca, it must have been
given a mandate to do so either in express words or "according to thetrue
interpretation ofthe Special Agreement" (paragraph 373of the reasoning
of the Judgment). This is, of course, absolutely correct. But the problems
lieelsewhere,namely in howto reach a"true interpretation" of the Special
Agreement under present rules on treaty interpretation. In this respect, 1
consider thatthe firstproposition tobe borne in mind isthat the said rules
oftreaty interpretation disregard any intentions ofthe parties to thetreaty
as a subjective element distinct from the text of the treaty. Subjective
intentions alien to the text of the treaty,particularly aposteriorisubjective
intentions, should play no role in the interpretation. This does not at al1

mean, however, that existing interpretation rules endorse literalismas the
object and purpose of treaty interpretation. What constitutes the object
and purpose of the intrepretation process today is the elucidation of the
intentionsoftheparties as expressedinthetextofthetreaty,presumed to be
the authentic expression of the intention of the parties. In this objective
environment, the object and purpose of the interpretation is not the
"words" but the "intentions" ofthe parties asreflected inthe termsused in
the text of the treaty. It is in this sense, and in this sense only, that the
prevailing rules of treaty interpretation are based upon the textual
approach. The whole exercise is concerned, therefore, with ascertaining
the intentions of El Salvador and of Honduras as reflected in the text of
the Special Agreement through an applicationof rulesof treaty interpreta-
tionnow prevailing and not with ascertaining the meaning of individual
words or expressions used in the Special Agreement.

190. Todetermine objectively the intentions of the Parties as reflected
in the Special Agreement, one must certainly start as provided for in the
Vienna Convention, namely from the "ordinary meaning" of the terms
used in the provision of the Special Agreement which isthe subject of the
interpretation, that is,paragraph 2 of Article 2in the instant case. But not
in isolation. For treaty interpretation rulesthere isno "ordinary meaning"
inthe absolute orinthe abstract. That iswhyArticle 31ofthe Vienna Con-vention refersto "good faith" and totheordinarymeaning"to begiven"to
the terms of the treaty "in their context and in the light of its object and
purpose". It is,therefore, a fully qualified "ordinary meaning". In addi-
tion tothe said "good faith", "context" and "object and purpose", account
may be taken, together with the "context", of the other interpretative
elements mentioned in Article 31, including "subsequent practice" of
the parties to the treaty and the "rules of international law" applicable
between them. Furthermore, recourse to "supplementary means of inter-
pretation" (preparatory work; circumstances ofconclusion) isallowed for
the purposes defined inArticle 32.The elucidation ofthe "ordinary mean-
ing" of terms used in the treaty to be interpreted requires, therefore, that
due account be taken of those various interpretative principles and

elements, and not only of words or expressions used in the interpreted
provision taken in isolation.

191. If1say that, it is not because the "ordinary meaning" of the verb
"determinar"or of the words "legalsituation"creates any problem in
Spanish. But 1intend to remainfaithful to the rulesgoverningtreatyinter-
pretation as codified in the Vienna Convention, whose essential charac-
teristic is that al1 its interpretative principles and elements form "an
integrated whole", including the "ordinary meaning" element. As Sir
Humphrey Waldock, Expert Consultant at the Conference and former
Special Rapporteur of the International Law Commission, stated at the
United Nations Conference on the Lawof Treaties just before voting:

"As far as Article 27 [311is concerned, the intention has been to
place on thesamefooting al1the elements of interpretation therein
mentioned." (United Nations Publication, Sales Number :E.68.V.7,
p. 184,para. 72; emphasis added.)

In such asuccinctmanner,SirHumpheyWaldocksummarized the illumi-
nating explanation contained in this respect in the commentary of the
International Law Commission on the draft articles which became Ar-
ticles 31 and 32 of the Vienna Convention (United Nations Publication,
Sales Number: E.70.V.5,p. 39, para. 8). The application of the rule of
interpretation mentioned in Article 31 of the Vienna Convention is a
single combined operation. As the International Law Commission said:

"Al1the various elements, as they were present in any given case,
would be thrown intothe crucible, and theirinteractionwouldgivethe
legallyrelevant interpretation."(Zbid;emphasis added.)

One is indeed very far away,not only from "literalism" but also from the
"ordinary meaning" ofterms in the abstract or in isolation. Asto the rela-tionship between the "general rule of interpretation" (Art. 31) and the
"supplementary means of interpretation" (Art. 32),it isalso clear thatthe
fact that they are presented as two different Articlesoes not at al1mean
that there are two interpretative processes. Theinterpretative process isa
singleoneand, the interpreter isfreeat anymoment totum hisattention to
the supplementary means ofinterpretation concemed without waitingfor
completion of the application of the general mle of Article 31.

192. But let us begin with the question of the "ordinary meaning",
because the Judgment finds it difficult to see how one can equate "deter-
mination of a legal situation" with "delimitation of the maritime spaces"
concemed,the context suggesting,according tothe reasoning ofthe Judg-
ment, a negative response. In the words of the Judgment, the question

must be "why", ifdelimitation of the sea was intended, did the Special
Agreement use the wording "to delimit theboundary line" regarding the
land frontier, while confining the task of theChamber as it relates to the
islands and maritime spaces to "determin[ing their] legal situation? The
Parties were very much divided as to the "ordinary meaning" of the verb
determinar ("to determine"). In El Salvador's view determinar would
exclude delimitar,whileinthat of Honduras delimitarwas not excluded by
the verb determinar,used in Article 2, paragraph 2, of the Special Agree-
ment. This first aspect of the interpretative dispute has been decided by
the Judgment in favour of the Honduran contention. As stated in para-
graph 373of the reasoning, the word determinar("to determine") can be
used to convey the idea of "setting limits". 1fully agree with this initial
finding of the Judgment. In Spanish, the original language ofthe Special
Agreement, determinar does not in any way exclude delimitar.One may
determinarby several means and one of these means may be delimitar. In
Spanish dictionaries '%jarlostérminos O loslimitesde una cosanisbut one

of the ordinary meanings of determinar. Delimitaris,therefore, one of the
ordinary meanings of determinar.It followsthatthe verb determinarused
in the Spanish text of Article 2, paragraph 2, of the Special Agreement
does not exclude as such delimitar, or to effect a delimitation,from the
standpoint ofthe "ordinary meaning" element ofthe general rule govern-
ingtreaty interpretation. But,immediately afterreachingthis correct con-
clusion on the sense of detenninar, the reasoning ofthe Judgment negates
its effects for the interpretation owing to the fact that in Article 2, para-
graph 2,ofthe SpecialAgreement "the object ofthe verb'determine'isnot
the maritime spaces themselves,but the legalsituation of these spaces" -
and the Judgment concludes, on the basis of this grammatical construc-
tion,that "no indication ofacommonintention to obtain adelimitation by
the Chamber can therefore be derived from this text as it stands". 1am
unable to follow the majority of the Chamber in this respect. To accept
such a reasoning one must be ready to admit that "determination"
through "delimitation" can never be a "determination" of a "legal situa-
tion". 1cannot seehow,once itisadmitted that determinarmay conveythe
idea of setting limits, a "delimitation" of spaceswould not be a"determi-nation ofthe legalsituation" of the spaces concerned. In Spanish one may
determinarthrough delimitaror otherwise al1kinds of things, including
spaces and lines,and forthe mostvarious purposes, including findings on
legalsituations. For example, the Spanish text ofArticle3 ofthe Montego
BayConvention on the Lawof theSea uses the expression "determinadas
de conformidadcon esta Convencion"with reference to the "baselines"
from which the breadth of the territorial sea is measured. Now, if a State
pursuant to such an Article of the Montego Bay Convention establishes
such a "baseline", could it be said that by doing so the State concerned is
not determining the "legal situation" ofthemaritimespaces on oneor the
other sideofthe "baseline"? Certainly, the tracing ofthe "baseline" deter-
minesthe legalsituation ofthe maritime spacesconcerned. Thus delimita-
tion through a line or lines of a space, maritime or otherwise, is not an
operation which ought to be excluded from the ordinary meaning of the
expression "to determine the legal situation" used in Article 2, para-

graph 2, ofthe SpecialAgreement. The reasoning ofthe Judgment would
appearto assumethat toeffectdelimitationofaspaceisan operation which
cannot be equated from the standpoint of the "ordinary meaning" ele-
ment of interpretation with a determinationof the legalsituationof the
spaceconcerned and, ultimately, that todeterminea delimitationcan never
be deemed to be todeterminea legalsituation.1reject this assumption on
the basis of the ordinary meaning of the terms used in Article 2, para-
graph 2,ofthe Special Agreement,interpreted in their tme context and in
the light oftheobject and purpose of the Special Agreement. A delimita-
tion of a givenspace isalways aclear-cut determination ofthe legalsitua-
tion of the areas situated on both sides of the delimitation line. The
Judgment would have the ordinary meaning of "to determine the legal
situation ofthe maritime spaces" include "régime"and "entitlement" but
exclude "delimitation". For mypart, 1do not seehowthis canbetme from
the standpoint of the "ordinary meaning" element, ascertained through
an application of the rules governing treaty interpretation, even if the
expression isgrammatically construed as in theJudgment.

193. To delimit themaritime spaces concerned being one ofthe "ordi-
nary meanings" of "to determine the legal situation of the maritime
spaces", the proposition that in Article 2, paragraph 2, of the Special
Agreement that expression excludes a delimitation can only be tme if it
happens to havebeen used inthat provision witha"special meaning". But
to establish that this was the intention of the Parties expressed inthe text
ofthe SpecialAgreementthe onus would be on El Salvador'ssideand not,
as stated in the Judgment, on Honduras's side (Art. 31, para. 4, of the
ViennaConvention). However, ElSalvadorhasnotpleaded itscaseonthe
basis ofany "special meaning" of determinarorof anyother word used in
Article 2, paragraph 2, of the Special Agreement. In fact, counsel for
El Salvador "expressly" invited the Chamber to take the "words" in
Article 2 of the Special Agreement, al1the "words", in their "ordinary722 DISPUTE (ELSALVADOR/HONDU(R SEPS.) PTORRES BERNARDEZ)

meaning", as the Judgment also does in its own way. Important as the
dichotomy between "ordinary meaning" and "special meaning" is for
interpretation,the question itself appears to meinthe present case to be of
rather an ancillary character in the reasoning of the Judgment. The basis
of the conviction reflected in the Judgment's reasoning lies elsewhere.
194. It isto be found, not inthe meaning of thetermsused inthe "text"
of Article 2, paragraph 2, of the Special Agreement as such but in their
context.The Chamber hasproceeded,in fact, to an interpretation by con-
text.Butitisan interpretation bycontext inwhich "context" isconfined to
its minimumminimommexpression, represented only by Article 2 of the
SpecialAgreement. It is Article 2 as "context" which provides the ration-
alebehind the reasoning of theJudgment.It isthe contrast in Article 2 of
the Special Agreement between the expression "to delimit the boundary
line" in paragraph 1and the expression "to determine the legal situation"
in paragraph 2 which appears to be the main controlling factor of the

interpretation givenbytheJudgment. However,there isno legaljustifica-
tion, under the prevailing treaty interpretation rules, for narrowing "con-
text" down to a single article or a single line in an article of the Special
Agreement in any case, and particularly when the tasks to be performed
bythe Chamber under the first and secondparagraphs of Article 2are not
identical tasks;those under paragraph 2being wider innature and scope
than the delimitation task of paragraph 1.1therefore find the relevant
passages in the reasoning of theJudgment quite unpersuasive. The use of
different expressions ineach of theparagraphs of Article 2isquite neces-
sary and fully justified bearing in mind the subject of the litigation as a
whole. The various tasks requested ofthe Chamber under Article 2,para-
graph 2, cannot be covered by the "ordinary meaning" of the expression
"to delimit the boundary line". This expression refers to a single task,
while the expression "to determinethe legal situation" embraces or may
embrace several tasks of various kinds,including effecting a delimitation
of the maritime spaces concerned.

195. If1concurred in the interpretative method followed by the Judg-
ment, 1 would stop my observations here but, as indicated above, 1intend
to remain faithful to the rules of treaty interpretation codified with the
unanimous support of States. 1do not consider that under such rules a
"true" interpretation isprovided by applyingeach ofthe recognized inter-
pretative principles and elements independently of each other or in a
selective way. The "integrated whole" criterion referred to above ispara-
mount and should prevail in the interpretation. To use Article 2 of the
SpecialAgreement as "context" for ascertaining the meaning of the verb
"to determine" or the expression "to determine the legal situation of the
maritime spaces" in itsparagraph 2is,of course,admissible providingthat
one does not forgetthe remaining parts of "context" and other principles
and elements incorporated in the general mle of treaty interpretation.
"Context" comprises, interalia, the wholetext of the treaty, including its
preamble,as well as any agreementrelatingto the treaty whichwas made723 DISPUTE (ELSALVADOR/HONDU(R SAEPS.P. TORRES BERNARDEZ)

betweenal1theparties inconnectionwith the conclusionofthetreaty(Art.31,
para. 2, of the Vienna Convention) without necessarily considering these
agreements to be an integral part ofthe treaty subject to interpretation. As
was pointed out bythe International LawCommission, forthe purpose of
interpreting atreaty,the documents recording the said agreements should
not be treated as mere evidence to which recourse may be had for resolv-
ing an ambiguity or obscurity, but aspart andparcel of the contextfor the
purpose of arriving to the ordinary meaning of the terms of the treaty
(United Nations Publication, Sales Number: E.70.V.5,p. 41, para. 13).
Then come other elements of interpretation "to be taken into account,
together with the context" and, amongthem, "subsequent practice in the
application of the treaty which establishes the agreement of the parties
regarding its interpretation" and "any relevant rules of international law

applicable in the relations between the parties" (Art. 31,para. 3, of the
Vienna Convention).

196. "Context" is,therefore, in the firstplace the wholeof the text of the
treatyto be interpreted, preambleincluded. Now the text of the 1986Spe-
cial Agreementmakes an express reference to Articles 16,19,3 1and 34of
the 1980General Treaty of Peace concluded between the Parties, as well
as a renvoito the Peace Treaty as a whole in connection with the law to be
applied by the Chamber tothe case "when delivering itsjudgment". This
relationship between the Special Agreement and the Peace Treaty results,
therefore, from the verytext of the Special Agreement. One does not need
to look outside the Special Agreement to find the Peace Treaty. The

Preamble and Articles 1, 2 and 5 of the Special Agreement are the pro-
visions which establish that legal nexus for an interpretation. The
1980Peace Treaty is,therefore, "context" for the purpose of interpreting
the Special Agreement byvirtue of the verytext of the Special Agreement
itself. Onedoes not need to go further - for example, to the agreements
referred to in paragraph 2 (a)of Article 31of the Vienna Convention - to
reach such a conclusion. On the basis of the Special Agreement and the
general rules of treaty interpretation 1 take it, therefore, that the
Peace Treaty is "context" forthe purpose of an interpretation of the said
SpecialAgreement.
197. The Peace Treaty,as part and parce1of the "context", ismoreover
an element of the greatest relevance to defining the object andpurposeof
theSpecialAgreement,namely to defining a further interpretative element
requisite forthe ascertainment of theordinary meaning of the termsused

in the Special Agreement, because the meaning of such terms has also to
be established "in the light of' that "object and purpose". Now the Pre-
amble ofthe SpecialAgreementprovidesthat the latter wasconcluded con-
sidering that within the period of time envisaged by Articles 19and 31of
the Peace Treaty no direct agreement had been reached regarding thedg-
ferences(in the plural) relating to the existing boundaries in respect to the724 DISPUTE (ELSALVADOR/HONDU (SAPS.)PTORRES BERNARDEZ)

remaining land areas in dispute and relating to thejuridical status of the
islandsand maritime spaces. It follows that the 1986Special Agreement
between the Republic of ElSalvador and theRepublic of Honduras isnot

a special agreement which stands alone like those mentioned in para-
graph 380of the reasoning ofthe Judgment. The 1986Special Agreement
isinfact and in lawan instrument in execution ofaprevious bindingjuris-
dictional conventional undertakingin force,embodied in Article31ofthe
Peace Treaty, which reads as follows:

"If, upon theexpiring oftheperiod offiveyearslaid down in Arti-
cle 19of this Treaty [the Peace Treaty], total agreement hasnot been
reached on frontier disputes concerning the areas subject to con-
troversy [the land boundary areas in dispute] or concerning thelegal
situation in the islands or maritime areas, or if the agreements pro-
vided for in Articles 27and 28ofthisTreatyhave not been achieved,
the Parties agreethat, withinthefollowing six months,they shallpro-
ceed to negotiate and sign a special agreement to submitjointly any
existingcontroversyorcontroversiesto thedecisionoftheInternational
CourtofJustice."(Emphasis added.)

Articles32and 33ofthe PeaceTreaty could not be more precise as to the
disputes that the Parties undertook to submit tothe Court or ahamber of
the Court eitherby notifyingaspecialagreement or,afterthe expiration of
a given deadline, through a unilateral application.These Articles of the
Peace Treaty read as follows :

'ilrticle32

The Special Agreement referred to in the preceding Article shall
include :
(a) the submission of the Parties to the jurisdiction of the Interna-
tional Court ofJustice sothat itrnaysettlethe controversy oron-
troversies referred to inthe preceding Article;
(b) the time-limitsforthe presentation of documents and the nurnber
ofsuchdocuments;

(c) the determination of any other question of a procedural nature
that maybepertinent.
Both Governments shall agree upon the datefor thejoint notifica-
tion of the Special Agreement to the International Court of Justice
but, in the absence ofsuch an agreement, any one of thern may pro-
ceed withthe notification, after having previously informedtheother
Party by the diplomaticchannel.

Article33
If,within theperiod of sixmonths laid down in Article 31,the Par-
tieshave notbeen able to reach agreement on the termsof the Special

Agreement, any one of them may submit, in the form of a unilateral application, the existing controversy or controversies tothe decision

of the International Court of Justice, after having previously
informed theother Party by the diplomatic channel."

198. The 1986Special Agreement is supposed, therefore, according to
the Peace Treaty, to be a special agreement submitting to the Court or to
one chamber of the Court "anyexisting controversyor controversies"con-
cerningtheboundaryinthe disputed land sectors and thelegalsituation in
the islandsand maritimespacesat the timeof theexpiryof theperiod offive
years laid downinArticle 19of the PeaceTreaty.What were, at that date,
and indeed during the present proceedings, the "existing controversies"
between the Parties concerning the determination of the legalsituation in
the maritime spaces? The reply to this question is provided by the evi-
dence in the case-file. It appears from that evidence that the Republic of
El Salvador and the Republic of Honduras understood the expression "to
determine the legal situation of the islands and maritime areas" of Ar-
ticle 18of the Peace Treaty (an expression similar to the one in Article 2,
paragraph 2,of the Special Agreement) when defining the "functions" of

the Joint Frontier Commission, established on 1May 1980,as including
"delimitation" ofthe maritime spacesconcerned. Delimitationproposals
were in factsubmitted to the consideration oftheJoint Frontier Commis-
sion and discussed, as well as directly at the highest level ofepresenta-
tion. There cannot be anyreasonable doubt thereon inthe lightofthe said
evidence, the so-described "conciliatory" proposal of President Duarte
being particularly revealing in this respect.

199. Neither isthereroom to question, ascounsel for ElSalvador didat
the hearings, that there exists any dispute between the Parties as to the
delimitation ofwaters ofthe Gulf of Fonseca, onthe basis ofthe argument
thatsuch waterswerein condominiumasdefinedin the 1917Judgement of
the Central American Court ofJustice inthe controversy between El Sal-
vador and Nicaraguaconcerning the Bryan-Chamorro Treaty. Howcould
it be so, so far as the present case between El Salvador and Honduras is
concerned, inthe lightofthe pleadings and submissions ofthe Parties and
their previous application and interpretation of their 1980Peace Treaty ?

The veryobject ofthe dispute before the Chamber asto the legalsituation
of the maritime spaces within the Gulf of Fonseca revolves on the ques-
tion ofcondominium withoutdelimitation(El Salvador'sthesis) or commu-
nityof interestswithdelimitation(Honduras's thesis)! This is preciselythe
subject of the controversy on the Gulf of Fonseca before the Chamber.
The Judgment has now settled the matter by declaring the existence of
"joint sovereignty" ofthethree States ofthe Gulf overitsundivided waters
but without excluding thereby thepossibility of delimitatinf thewatersof
theGulf: There isnot,therefore,anyinherent legalincompatibility, forthe
dispute between the Parties when concluding the SpecialAgreementcom-
prised, as to the Gulf, both a dispute on the condominium issue and a
dispute on the delimitation issue. This is borne out by events. Al1along,the history of the relations between the Parties, involved "delimitation" of
the maritime spaces in dispute; from the conclusion of the unratified
1884Cruz-Letona convention, which embodied a delimitation within the

Gulf of Fonseca, down to the present proceedings, not forgetting, as
already said, the Joint Frontier Commission(May 1980-December 1985).
200. Thatthedispute between the Partiesconcerning the legalsituation
of the maritime spaces within theGulf of Fonseca, as also in the maritime
spaces in the Pacific Ocean seaward of the closing-line of the Gulf,
included a "delimitation" aspect cannot reasonably be questioned, and a
true interpretation of Article 2, paragraph 2, of the Special Agreement
proves that that disputeand no other was the dispute referred by the Par-
ties to the Chamber for adjudication. The contrary proposition would
amount to admitting that when negotiating and concluding the Special
Agreement the Parties reformulated the subject of the dispute existing
between them sincethe beginning of the present century in the case of the
Gulf of Fonseca, andas from about 1974inthe case ofthe maritimespaces
outside theGulf.There isnot the slightest proof ofany such reformulation
in the evidence submitted by the Parties to the Chamber, neither does it
emerge from any interpretation of the Special Agreement performed in
accordance with the prevailing rules of treaty interpretation.
201. In fact, the practice of the Parties subsequent to the 1986Special
Agreement confirmed thatthe scope oftheirdispute on the legalsituation
of the maritime spacesremained the same asbefore. The pleadings,argu-
ment and submission of Honduras speak forthemselves inthat respect. In

the eyes of Honduras, Article 2, paragraph 2, of the Special Agreement
empowers the Chamber to effect "delimitations" in the maritime spaces
without excluding other determinations. And, in fact, the same results
from the very conduct of El Salvador itself at the current proceedings,
notwithstanding its rejection of the interpretation of Honduras, based
inter aliaupon "constitutional" considerations. If the conduct of El Sal-
vador at the present proceedings is analysed closely, one sees that the
denial of "delimitation" is not confirmed by some of its arguments and
submissions. Albeit with caveats and restraint, El Salvador also has
pleaded to, and made submissions on "delimitation" aspects of themari-
time dispute, inside the Gulf of Fonseca in particular. What El Salvador
refused to do was to discuss in detail the delimitation lines proposed by
Honduras, covering itself with the plea of "non-competence". This is, in
final analysis, a procedural situation contemplated in Article 53 of the
Statute of theCourt, whose provisions apply not only to non-appearance
situationsbut also to situations when a party fails to defend its case. One
of El Salvador's forma1submissions, for example, requests the Chamber
to adjudge and declare that the legal situation of the maritime spaces
within the Gulf of Fonseca corresponds to the legal position established
by the 1917Judgement of theCentral Arnerican Court of Justice. Now, in
that Judgement, to which Honduras isnot party, itisaquestion notonly of
condominium but also of maritime delimitations within the Gulf (the
one marine league littoral zone; the inspection zones; and the 1900Hon-duradNicaragua delimitation). Moreover, the condominiumsubmission
itself implies ex hypothesithe existence of a line distinguishing the mari-
time spaces within theGulf from those outside the Gulf. El Salvadoreven
referred in the current proceedings to a new line of its own making,
namely to aline dividing the so-calledinner and outer sectors of the Gulf.

Littoral zones of islands, including islands "in dispute", have also been
very much present in Salvadorian arguments. El Salvador has, therefore,
like Honduras, pleaded to delimitation matters and lines.This subsequent
conduct of the Parties, as reflected in the current proceedings, isno doubt
also relevant to theinterpretation of Article 2,paragraph 2,of the Special
Agreement. Itcannot be put aside by the Chamber wheninterpreting that
provision. El Salvador did not exclude "delimitation" under the Special
Agreement, but only "certain delimitation matters" or "delimitation in
certain maritime areas".

202. The affidavit of the former Foreign Minister of El Salvador sub-
mitted in order to prove the lack of consent on the part of El Salvador,
when concluding the Special Agreement, to the conferment upon the
Chamber of jurisdiction to effect "maritime delimitations" cannot be

admitted as an element of interpretation of Article 2,paragraph 2, of the
SpecialAgreement under existingmles oftreatyinterpretation. Itwas not,
when the SpecialAgreement was concluded, accepted by Hondurasas a
document related to that Agreement. To justify attaching to it the inter-
pretative value sought by El Salvador, the affidavit should have been
embodiedin adocument or instrument (i.e.,aplenipotentiary instrument)
at the time of that conclusion, and communicated to and accepted by
Honduras. Nothing ofthiskind has been reported tothe Chamber. Inthis
connection, and with al1due respect, 1am obliged also to recall here the
latestjurispmdence of the Court on affidavits of Ministers of parties to a
case (I.C.J. Reports 1986,p.43, para. 70).

203. 1 must confess that 1 have difficulty following the conclusion
drawn in the Judgment from the explanation given by Honduras for the
Parties having chosen the formula used in Article 2, paragraph 2, of the
Special Agreement, which follows closelyEl Salvador'sownexplanation.
For an interpretation of the provisions in question, the only relevant thing

to be extracted from that explanation isthat theformula wastaken almost
word for word from the 1980Peace Treaty, under which the existing con-
troversy between the Parties asto the "maritime spaces" embraced "deli-
mitation", aswellasother determinations, and nothing else.Whatmatters
for the purpose of deciding the interpretationdispute between the Parties
is exclusivelythe scope of their consent to jurisdiction as expressedinAr-
ticle2,paragraph2,oftheSpecialAgreement.The motivations for choosing
the formula are alien to the interpretation except as a possible "supple-
mentary means" linked to the circumstances of its adoption. They are, inany case, subjective elements distinct from the actual text of the Special
Agreement. The method followed in this respect by the Judgment would
seem to be based upon reasonings of the Court concerning determina-

tions of the scope of consent to jurisdiction deriving from declarations
made pursuant to Article 36,paragraph 2,ofthe Statute. Butthe Chamber
is not supposed to determine in the instant case the area of coincidence
of consents given by parties in separate unilateral instmments. It must
simply interpret a provision of a treaty, namely the Special Agreement.
This does not allow it to consider separately the consent given by each
Party to the Special Agreement, or to set up the consent of one Party
against the consent of theother;both consents, as reflected in the text of
the Special Agreement, constitute a single unity for the purpose of inter-
pretation. It isthis meeting of minds which isthe onlything that counts in
the present instance. If through the interpretation process such an
expressed meeting ofminds isunclear or leadsto unreasonable results(for
example, the total exclusion of a main tenet of the position of one of the
Parties), there remains recourse to the "supplementary means" of treaty
interpretation which, in the present case,would mean examining the cir-
cumstances leading to the conclusion of the Special Agreement and, con-
sequently, to Articles 31 and 32of the Peace Treaty. Aposterioriexplana-

tionscannot formasubstitute forthe intentions ofthe Parties asexpressed
in the text of the Special Agreement at the time of conclusion in 1986.1
have already said thatthe "controversy" existing atthat moment involved
"delimitation" of the maritime spaces and that the expression "to deter-
mine the legal situation of the maritime spaces" in itself, as well as inthe
context ofthe SpecialAgreement and inthe lightofitsobject and purpose,
does not exclude the Chamber's effecting a delimitation of the maritime
spaces concerned.

204. In this connection it is also worth recalling that the fact that the
treaty to be interpreted is inthe present case a "special agreement" (com-
promis) does not change by one iotatheinterpretation niles to be applied,
which remain the same as in the case of any other kind of treaty. It was
agreed at the United Nations Conference on the Law of Treaties that,for
interpretation purposes, no distinctions should be made on the basis of
the various possibleclassifications of treaties, withthe singleexception of
the additional rules for "multilingual treaties" (Art. 33of the Vienna Con-
vention). Special agreements (compromis)are no exception, as the Court
recently confirmed in its Judgment of 12November 1991on the Arbitral

Award of 31 July 1989 (Guinea Bissau v. Senegal) (I.C.J. Reports 1991,
pp. 69-70,para. 48).Old theories about the so-called "restrictive" interpre-
tation of conventional instmments providing forthe jurisdiction of inter-
national courts and tribunals do not correspond to present mles oftreaty
interpretation. They were consciously left out of those rules when the
latter werecodified bythe Vienna Convention. No longer does restrictive-
ness intreaty interpretation govern apriori inanywaythe actoftreaty inter-
pretation of such kinds of conventional instmment. The subject-matter729 DISPUTE (ELSALVADOR/HONDU(R SEPS.) TORRES BERNARDEZ)

of the treaty as such isnot an element of the general mle on interpretation
of treaties.1see no reason therefore to try to establish any relationship
whatsoever between the operation of interpreting Article 2, paragraph 2,
of the Special Agreement and theprinciple of the consensualjurisdiction
of the Court. This latter principleis not supposed to be thrown into the
crucible in order to arrive at the legallyrelevant interpretation ofthat pro-
vision of the SpecialAgreement. To do otherwise, asthe reasoning of the
Judgment does,begs in fact the interpretative question at issue. It does not
provide an answer to it. In fact, the Judgment quite unwarrantedly,in my
opinion, equates the efforts of the Parties to find a "neutralfonnu1a"in

order to overcome constitutional problems with the different matter of
their intentions, or their commonintention, in adopting such a formulain
Article 2, paragraph 2, of the Special Agreement, the meaning of which
should be ascertainedthrough an interpretation performed in accordance
with the rules of treaty interpretation now prevailing.

205. 1point out the foregoing, interalia,because theJudgment rejects a
contention by Honduras based upon the principle of effectiveness (effet
utile)apparently because in interpreting a text of this kind(a reference
presumably to the SpecialAgreement) the Chamber must primarily con-
sider not evidence astothe general intentions of the Parties in relation to
the dispute,butthecommon consent expressed inthe "words" ofthe Spe-
cial Agreement. We have already explained the meaning of the expres-
sions used in Article 2of the Special Agreement. It suffices,therefore, to

recall here that the maxim ut resmagis valeat quampereat, in sofaras it
reflects a true general rule of interpretation, is embodied, as explained by
the International Law Commission, in Article 31, paragraph 1, of the
Vienna Convention, which requires that a treaty be interpreted in good
faith in accordance with the ordinary meaning to be givento the terms of
the treaty in their context and in the light of its object and purpose
(United Nations Publication, Sales Number: E.70.V.5, p. 39, para. 6).
Within these limits, the contention of Honduras is a perfectly valid legal
argument where goodfaithinterpretation of Article 2,paragraph 2,ofthe
Special Agreement is concerned, particularly when no evidence has been
submitted to the Chamber to the effectthat the "object" ofthe controversy
between the Parties existingbefore 24May 1986wasaltered bythe Special
Agreement and no such evidence emerges either from its text, itscontext,
or its object and purpose.

206. It is really difficult to understand the scant attention paid by the
Judgment, in dealing with this interpretationdispute, tothe whole text of
the Special Agreement and to the Peace Treaty as part of its "context".
Context is by no means Article 2of the SpecialAgreementalone. The flat
statementinparagraph 374ofthe reasoning of the Judgment to the effect
thattheinterpretation givenby the majority of the members of the Cham-
ber ofthe expression "to determinethe legalsituation" isalsoconfirmed if
the phrase is considered in the "wider context", firstof the Specialee-mentasa whole, and then ofthe 1980General Treaty of Peaceto whichthe
Special Agreement refers, is certainly no substitute for a reasoned expla-
nation. Stilllesswhen theJudgment itself seeks support for its own inter-
pretation by referring to termsgenerally or commonlyused to conveythe
idea that "delimitation" is intended. In treaty practice one may find al1
kinds of terms, and the present interpretation, as indicated above, is not
one dependent on any "special meaning" of the terms used in Article 2,
paragraph 2, of the Special Agreement, since the "ordinary meaning" of
"to determine the legal situation of the maritime spaces" also conveys "to
effect adelimitation ofthe maritime spaces concerned". The same applies
mutatis mutandisto the Judgment's neglect ofthe "object and purpose" of
the Special Agreement, which is an instrument drawn up in execution of
Article 32 of the Peace Treaty. An interpretation which puts aside, for al1
practical purposes, the "object and purpose" ofthe instrument containing
the terms or expressions to be interpreted is notan interpretationmade in
accordance with the prevailing general rule of treaty interpretation

(Art. 31of the ViennaConvention).

207. In the light of the above, 1reject the submission of El Salvador to
the effectthatthe formulaused in the text of the Special Agreement ("que
determinelasituacionjuridicadelosespacios maritimos'~barsthe Chamber
from having jurisdiction to effect "delimitacion"in the maritime spaces
referred to it. TheChamber is empowered to do so under Article 2,para-
graph 2,ofthe SpecialAgreement in sofar asthe scopeof itsjurisdiction is
concerned. It should not, however, exercise its jurisdiction to delimit
because, as indicated in paragraphs 184to 186above, this interpretation
dispute has become a "moot" issue as a result of the judicial decisionsof
the Chamber recorded in subparagraphs 1 and 3 of operative para-
graph 432ofthe Judgment. 1most regretfully disagree,therefore, with the
decision of the majority of the Chamber on the non-competence sub-
mission of El Salvador, as well as with the procedural treatment of the
matter in the Judgment.

C. TheQuestionoftheEffectsof theJudgment
for theInterveningStare

208. 1agree withthe finding oftheJudgmentthat "inthe circumstances
of the present case,this Judgment isnot resjudicatafor Nicaragua" (para-
graph 424of the reasoning). There remains, however, the question of the
effects of the Judgment other than that of resjudicata (Art. 59 of the Sta-
tute) on a non-party State inte~ening under Article 62 of the Statute. In
this respect,1concur with the statement contained in the declaration of
Vice-President Oda appended to the Judgment. My position is based
upon the fact that 1cannot, as a general proposition, conceive of rights
without obligations aswellas upon the generaleconomy ofthe institution
of intervention as embodied in Articles 62 and 63 of the Statute of the
Court. Interventions under Article 63, for example, are non-party inter-731 DISPUTE(ELSALVADOR/HONDU (SEAS.P. TORRESBERNARDEZ)

ventions and nevertheless the interveningState isunder the obligation set
forth in that Article. Mutatis mutandis,an obligation of that kind also
exists, in my opinion, for a non-party State intervening Article 62,
notwithstandingthe fact thatthat Article does not say so in plain words.
Myreading of the travauxpréparatoireosf the 1920Statute of the Perma-
nent Court of International Justice as well as of the observations of the
British Government signed by the British Agent, Cecil J. B. Hurst,
concerning the original Application of the Government of Poland for
S.S. "Wimbledon" case under Article 62
permission to intervene in the
(P.C.Z.J.,SeriesC,No.3,Vol.1,pp. 105-log),confirms rather than negates
theabove conclusion.

(Signed) Santiago TORRESBERNARDEZ.