Summary of the Judgment of 11 September 1992

Summaries of Judgments, AdNot an official documentrs of the Internationa
l Court of Justice

CASE CONCERNING LAND,ISLAND ANDMARITIME FRONTIER DISPUTE

(EL SALVADOIUHONDURAS:NICARAGUA INTERVENING)

Judgment of 11 September1992

The Chamber constituted by the Court in the case con-land sections between El Salvador and Honduras. It then
cerning the Land, Island and Maritime Frontier Disputebruled on the legal status of the islands of the Gulf of Fon-
tween El Salvador and Honduras, Nicaragua intervening, seca, as well as .on the legal situation of the maritime
first adoptedthe courseofthe boundary line in the dispuspaces within and outsidethe closing line of that Gulf.

Continued onnext page The Chamber was composedas follows: Judge Sette- annexed; coordinates: 14'21'08"N, 89'08'54" W), and
Camara, President of the Chamber; President Sir Robert fromthere in a straightline to the hill knownasEl Burro
Jennings; Vice-President Oda; Judges ad hoc Valticos, or Piedra Rajada (point C on Map No. I1 annexed;
Toms Bernhrdez. coordinates: 14'22'46''N, 89'07'32'' W); from there
the boundary runs in a straight line to the head of the
quebrada Copantillo, and follows the middle of the
quebradaCopantillo downstreamto its confluence with
the river Sumpul (point D on Map No. I1 annexed;
coordinates: 14'24'12" N, 89'06'07" W), and then fol-
The full text of the operative part ofthe Judgment is as lows the middle of the river Sumpul downstream toits
follows: confluence with thequebradaChiquitaor Oscura(pointE
"425. Forthe reasons setoutinthe present Judgment,
in particular paragraphs 68 to 103thereof, on Map No. I1 annexed; coordinates: 14'20'25''N,
89'04'57''W); for the purposes of illustration, theline
THECHAMBER, is indicated on Map No. I1annexed.
Unanimously, 427. Forthe reasons setout in the present Judgment,
Decides that the boundary line between the Republic in particular paragraphs 128to 185thereof,
of El Salvador and the Republic of Honduras in the THECHAMBER,
first sector of theirommon frontier not clescribedin Unanimously,
article 16of the General Treaty of Peace signed bythe
Parties on 30 October 1980is as follows: Decides that the boundary line between the Republic
of El Salvador and the Republic of Honduras in the
From the international tripoint known as El Trifinio third sector of their common frontier not describedin
onthe summitofthe CerroMontecristo (point A on Map article 16of the General Treaty of Peace signed bythe
No. I annexed;coordinates:14'25'10"N, 89"21'20"W), Parties on30 October 1980 isas follows:
the boundary runsin agenerally easterlydirectionalong From the Pacacio boundary marker (point A on Map
the watershed between the rivers Frio or St:secapaand No.111 annexed;coordinates:14'06'28"N, 88'49'18"W)
Del Rosarioas far as thejunction ofthis watershed with along the rio Pacacio upstreamto a point (point B on
the watershed of the basin of the qttebrada de Pomola Map No. 111annexed; coordinates: 14'06'38" N,
(pointBonMapNo.Iannexed;coordinates:14'25'05"N, 88'48'47''W) west of the Cerro Tecolate or Los Teco-
89'20'41" W); thereafter in a north-easterly direction lates; fromthere upthequebradatothe crestofthe Cerro
along the watershed of the basin of the quebrada de Tecolate or Los Tecolates (point C on Map No. 111
Pomola until the junction of this watershed with the annexed; coordinates: 14'06'33" N, 88'48'18" W),and
watershed between the quebrada de Cipresales and the alongthe watershedofthis hill as far as a ridge approxi-
quebrada del Cedrbn, Peiia Dorada and Pornolaproper mately 1kilometre to the north-east (point D on Map
(pointConMapNo.Iannexed;coordinates:14'25'09"N,
89'20'30" W); from that point, alongthe last-named No.111 annexed;coordinates:14'06'48"N,88'47'52"W);
watershed as far as the intersection of the centre-lines from there in an easterly direction to the neighbouring
of the quebradas of Ci~presalesand Pomola (point D hill abovethe sourceof the Torrente La Puerta (pointE
on Map No. I annexed; coordinates: 14"24'42" N, on Map No. 111annexed; coordinates: 14'06'48" N,
89"18'19" W);thereafter, downstreamalongthe centre- 88'47'31" W) and down that streamto where it meets
line of the quebrada de Pomola, untilthe point on that the river Gualsinga (point F on Map No. 111annexed;
centre-line which is closest to the boundary marker of coordinates: 14'06'19"N, 88'47'01" W); fromtherethe
Pomola at El Talquezalar; and from that point in a boundary runs along the middle of the river Gualsinga
straight line as far as that marker (pointEon Map No.I downstream to its confluence with the river Sazalapa
annexed; coordinates: 14"24'51" N, 89"17'54" W); (point G on Map No. 111 annexed; coordinates:
fromthere in a straight line in a south-easterlydirection 14'06'12"N, 88'46'58" W), and thence upstreamalong
to the boundary marker of the Ceno Pied.raMenuda the middleof the river Sazalapato the confluenceofthe
quebradaLlano Negrowith that river (pointH on Map
(pointFon MapNo.Iannexed; coordinates:14'24'02''N, No.111 annexed;coordinates:14'07'11"N,88'4421" W);
89'16'40" W),andthence ina straight linetothe bound- from there south-eastwardsto the top of the hill (pointI
ary marker of theCeno Zapotal (pointG on:Map No. I on Map No. 111annexed; coordinates: 14'07'01" N,
annexed; coordinates: 14'23'26" N, 89'14'43" W); for 88'44'07" W), and thence south-eastwardsto the crest
the purposes of illustra.tion, the line is indicated on of the hill marked on the map as a spot height of
Map No. I annexed. 1,017 metres (pointJ on Map No. 111annexed; coordi-
426. Forthe reasons setoutin the present Judgment,
in particular paragraphs 104to 127thereof, nates: 14'06'45" N, 88'43'45" W); from there the
'THE CHAMBER, boundary, inclining still moreto the south,runs through
the triangulation point known as La Caiiada (pointK
'Unanimously, on Map No. 111annexed; coordinates: 14'06'00" N,
Decides that the boundary line between the Republic 88'43'52" W)to the ridgejoining the hills indicatedon
of El Salvador and the Republic of Honduras in the the mapas Ceno ElCaracoland Cerro El Sapo (through
second sectorof their commonfrontier not described in pointLon MapNo.111 annexed;coordinates:14'05'23"N,
article 16 ofthe General Treatyof Peace signedby the 88'43'47" W) and from thereto the feature marked on
Parties on 30 October 1980is as follows: the mapas the Portillo El ChupaMiel (point M on Map
From the Peiia de Cayaguanca (point A on Map No. 111annexed;coordinates:14'04'35"N, 88'44'10"W);
No. I1annexed;coordinates:14'21'54"N, 89c'10'11" W), from there, followingthe ridge, to the Cerro El Cajete
the boundary runs in a straight linemewt~atsouth of (point N on Map No. 111 annexed; coordinates:
eastto the Lomade Los Encinos (pointB on MapNo. I1 14'03'55" N, 88'44'20" W), and thence to the pointwhere the present-day road from Arcataoto Nombre de article 16of the General Treaty of Peace signed bythe
Jestispasses betweenthe CerroElOcotilloandthe Cerro Parties on30 October 1980is as follows:
Lagunetas (point 0 on Map No. I11annexed; coordi- From the confluence with the river Torola of the
nates: 14'03'18" N, 88'44'16" W); from there south- stream identified in the General Treatyof Peace as the
eastwards to the crest of a hill marked on the map as a quebrada de Mansupucagua (point A on Map No. V
spot height of 848 metres (point P on Map No. 111 annexed; coordinates: 13'53'59" N, 87'54'30" W), the
annexed; coordinates: 14'02'58" N, 88'43'56" W); boundary runs upstream along the middle of the river
fromthere slightlysouth ofeastwardsto a quebradaand Torola as far as its confluence with a stream knownas
down the bed of the quebrada to its junction with the theqr~ebrada delArena1orquebradadeAceituno(pointB
Gualcuquin river (point Q on Map No. I11annexed; on Map No. V annexed; coordinates: 13'53'50'' N,
coordinates: 14'02'42" N, 88'42'34" W); the boundary 87'50'40" W);thence upthe courseof that streamas far
then follows the middle of the Gualcuquin river down- as a jpointat or near its source (point C on Map No. V
stream to the Poza del Cajon (pointR on Map No. I11 annexed; coordinates: 13'54'30" N, 87'50'20" W), and
annexed; coordinates: 14'01'28" N, 88'4 1'10" W); thence in a straight line somewhatnorth of east to a hill
forpurposes of illustration, this line is shown on Map some:1,100metreshigh (point DonMapNo.Vannexed;
No. I11annexed.
428. Forthe reasons setout inthe present Judgment, coortlinates: 13'55'03''N, 87'49'50" W); thence in a
in particularparagraphs 186to 267 thereof, straightlinetoahill near theriverUnire (pointEon Map
No. \/annexed;coordinates:13'55'16" N, 87'48'20"W),
THECHAMBER, and thenceto the nearest point onthe river Unire; down-
By four votes to one, stream along the middle ofthat river to the point known
Decides that the boundary line between the Republic as the Paso de Unire (point F on Map No. V annexed;
of El Salvador and the Republic of Honduras in the coortlinates: 13'52'07" N, 87'46'01" W); for the pur-
fourth sector of their common frontier not described in poses of illustration, the line is indicated on Map No. V
article 16of the General Treatyof Peace signed bythe annexed.
Parties on 30 October 1980is as follows: 430. Forthe reasons setoutin the present Judgment,
in particular paragraphs 306to 322thereof,
From thesource ofthe Orilla stream (pointA on Map
No.IVannexed;coordinates:13'53'46"N,88'20'36"W),
the boundary runs through the pass of El Jobo to the Unanimously,
source of the Cueva Hedionda stream (pointB on Map Decides that the boundary line between the Republic
No. IV; coordinates: 13'53'39" N, 88'20'20" W), and of El Salvador and the Republic of Honduras in the
thence downthe middle of that stream to its confluence sixth sector of their common frontier not described in
with the river Las Caiias (point C on Map No. IV article 16of the General Treaty of Peace signed bythe
annexed; coordinates: 13'53'19" N, 88'19'00"W), and Parties on30 October 1980is as follows:
thence followingthe middle of the river upstreamas far
as apoint (pointD onMapNo. IV annexed; coordinates: From the point on the river Goascorin known as
13'56'14" N, 88'15'33" W) near the settlement of Los Amates (pointA on Map No. VI annexed; coordi-
Las Piletas;fromthere eastwardsovera col indicatedas nates: 13'26'28" N, 87'43'25" W), the boundary fol-
pointEonMapNo.IVannexed(coordinates:13'56'19"N, lows the course of the river downstream, inthe middle
88'14'12" W), to a hill indicated as point F on Map of the bed, to the point where it emerges inthe watersof
the Bahia La Uni6n, Gulf of Fonseca, passing to the
No.IVannexed(coordinates:13'56'11"N,88'13'40"W), north-westofthe Islas Ramaditas,the coordinatesofthe
and then north-eastwards to a point on the river Negro end-point in the bay being 13'24'26" N, 87'49'05" W;
or Pichigual (marked G on Map No. IV annexed; coor- for the purposes of illustration, the line is indicated on
dinates: 13057'12"N, 88'13'11" W); downstreamalong Map No. VI annexed.
the middle of the river Negro or Pichigual to its conflu- 431. Forthe reasonssetout inthe present Judgment,
ence with the river Negro-Quiagara (point H on Map in particular paragraphs 323 to 368thereof,
No. IV; coordinates: 13'59'37" N, 88'14'18" W); then
upstream along the middle of the river Negro-Quiagara
as far as the Las Pilas boundary marker (pointI on Map 1. By four votes to one,
No. IV; coordinates: 14'00'02" N, 88'06'29" W), and
fromthere in a straight line to the Malpaso de Similat6n Decides that the Parties, by requesting the Chamber,
(point J on Map No. IV; coordinates: 13'59'28" N, in article 2, paragraph 2, of the Special Agreement of
88'04'22" W); for the purposes of illustration, the line 24 May 1986, 'to determinethe legal situation of the
is indicated onMap No. IV annexed. islands.. .',have conferred uponthe Chamberjurisdic-
tion to determine, as between the Parties,the legal situ-
IN FAVOUR: Judge Sette-Camara, President of the ation of all the islands of the Gulf of Fonseca; butthat
Chamber; PresidentSirRobertJennings;Vice-President suchjurisdiction should only be exercised in respectof
Oda; Judge ad hoc Torres Bernirdez; those islands which have been shownto be the subject
AGAINSTJ:udge ad hoc Valticos. of a dispute;
429. Forthe reasonssetout inthe present Judgment, IN FAVOUR: Judge Sette-Camara, President of the
in particular paragraphs 268 to 305 thereof, Chamber;PresidentSirRobert Jennings; Vice-President
Oda; Judge ad hoc Valticos;
THECHAMBER, AGAINSTJ:udge ad hoc Torres Bernirdez;
Unanimously,
Decides that the boundary line between the Republic 2. Decides that the islands shown to be in dispute
of El Salvador and the Republic of Honduras in the betweenthe Parties are:
fifth sector of their common frontier not described in (i) by four votes to one, EITigre; IN FAVOUR:Judge Sette-Camara, President of the constitutes the baseline of the territorial sea; the territo-
Chamber; President S-irRobert Jennings; Vice-President rial sea, continental shelf and exclusive economic zone
Oda; Judge ad hoc Valticos; of El Salvador and those of Nicaragua off the coasts of
AGAINSTJ:udge ad'hoc Torres Bernhrtlez; those two States are also to be measured outwards from
a sectionof the closing line extending 3 miles (1 marine
(ii) unanimously, Meangrlera and Meanguerita; league) along that line from Punta Amapala (in El Sal-
3. Unanimously, vador) and 3 miles (1 marine league) from Punta
Decides that the island of El Tigre is part of the Cosigiiina (in Nicaragua) respectively; but entitlement
sovereign territory of the Republic of Ho-nduras; to territorial sea, continental shelf and exclusive eco-
4. Unanimously, nomic zone seaward of the central portion of the closing
line appertains to the three States of the Gulf, El Salva-
Decides that the island of Meanguera is part of the dor, Honduras and Nicaragua; and that any delimitation
sovereign territory of the Republic of El Salvador; of the relevant maritime areas is to be effected by agree-
5. By four votes to one, ment on the basis of international law.
Decides that the island of Meanguerite~is part of the
sovereign territory of the Republic of El !Salvador. IN FAVOUR: Judge Sette-Camara, President of the
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Judge ad hoc
Chamber; President SirRobert Jennings; Vicc-President Valticos; Judge ad hoc Torres Bernhrdez;
Oda; Judge ad hoc Va.lticos; AGAINSTV : ice-President Oda."

AGAINSTJ:udge ad hoc Torres Bcrnhrclez.
432. Forthe reasons set out inthe present Judgment,
in particular paragrapl~s369 to 420 thereof,

1. By four votes to one, Vice-President Oda appended a declaration to the Judg-
ment; Judges ad hoc Valticos and Torres Bernhrdez
Decides that the legal situation of the waters of the appended separate opinions; Vice-President Oda appended
Gulf of Fonseca is as .Follows:the Gulf of Fonseca is an a dissenting opinion.
historic bay the waters whereof, having previously to
1821 been under the single control of Spain, and from
1821to 1839of the Federal Rcpublicof Central America,
were thereafter succeeded to and held in sovereignty by
-theRepublic of El Salvador, the Republic of I-londuras,
and the Rcpublic of Nicaragua, jointly, and continue to
be so held, as defined in the present Judgment, but I. Qualitis
excluding a belt, as a.tpresent established, extending (paras. 1-26)
3miles (1 marine league) from the littoral of each of the
three States, such belt being under the exclusive sover- The Chamber recapitulates the successive phases of
eignty ofthe coastal State,andsubjecttothe delimitation the proceedings, namely: notification to the Registrar, on
between Honduras and Nicaragua effected in June 1900, 11December 1986, of the Special Agreement signed on
andto the existing rights of innocent passage through the 24 May 1986 (in force on 1October 1986)for the submis-
:3-milebelt and the waters held in sovert:igntyjointly;
thewaters atthe central portion ofthe closing line ofthe sion to a Chamber of the Court of a dispute between the
Gulf, that is to say, between a point on that line 3 miles two States; formation by the Court, on 8 May 1987, of
(1 marinc league) from Punta Amapala and a point on the Chamber to deal with the case; filing by Nicaragua, on
;iresubject to the joint entitlement of all three States of 17 November 1989, of an Application for permission to
intervene in the case; Order by the Court, of 28 February
maritime area be effected;la delimitation of the relevant 1990,on the question whether Nicaragua's Applicationfor
permission to intervene was a matter within the compe-
IN FAVOUR:Judge Sette-Camara, President of the tence of the full Court or of the Chamber; Judgment of the
Chamber; President Sir Robert Jennings; Judge ad hoc Chamber of 13 September 1990 acceding to Nicaragua's
'Valticos;Judge ad hocTorres Bernhrdez; applicationfor permissionto intervene (but solelyin respect
AGAINSTV : ice-president Oda; of the question of the status of the waters of the Gulf of
2. By four votes to one, Fonseca); and holding of oral proceedings.
Decides that the Parties, by requesting the Chamber,
in article 2, paragraph 2, of the Special Agreement Article 2 of the Special Agreement, which defines the
of 24 May 1986, 'to detcrmine the legal situation of subject of the dispute, reads, in an agreed English trans-
lation:
the . . maritime spaces', have not conferred upon the
Chamberjurisdiction to effect any delimitation of those "The Parties request the Chamber:
maritime spaces, whether within or outside the Gulf; 1. Todelimit the frontier line inthe areasor sections
IN FAVOURJ :udge Sette-Camara, President of the not described in article 16 of the General Peace Treaty
Chamber; President Sii:Robert Jennings; Vice-President of 30 October 1980.
Oda; Judge ad hoc Vallticos;
AGAINSTJ:udge ad hocTorres Bernhrdaz; 2. Todeterminethe legal situation ofthe islandsand
3. By four votes to one, maritime spaces."
The Judgment then quotes the submissions of the Par-
~ecides that the legal situation of the waters outside
the Gulf is that, the Gulf of Fonseca being an historic ties, and the "conclusions" of the intervening State, as
bay with three coastal !states,the closing line ofthe Gulf formulated at the various stages of the proceedings.11. General introduction The Parties have indicatedto which colonialadministra-
(paras. 27-39) tive clivisions(provinces) they claim to have succeeded.
The problem is to identify the areas, and the boundaries,
The dispute before the Chamberhas three elements: a which corresponded to these provinces, which in 1821
dispute over the land boundary;a dispute over the legal became respectively El Salvador and Honduras.No legis-
situation ofislands (in the Gulf of Fonseca);and a dispute lativeorsimilarmaterialindicatingthis hasbeenproduced,
overthe legal situation of maritime spaces (withinand out- butthe partieshavesubmitted,interalia, documents
side the Gulf of Fonseca). to collectively as "titles" (titulos), concerninggrants of
The two Parties (and the intervening State) cameinto land 'bythe Spanish Crown in the disputed areas, from
being with the break-upof the Spanish Empirein Central which, it is claimed, the provincial boundaries can be

America; their territories correspondto administrative sub- deduced.
divisions of that Empire. It was from the outset accepted The chamber then analysesthe variousmeanings of the
that thenewinternational boundaries should, in accordance term -title-. lt concludes that, reserving, for the present,
with the principle generallyappliedin SpanishAmerica of the special status El Salvador attributes to "formal title
the utipossidetisjuris, follow the colonial administrative deeds to commons^^, none of the titles producedrecording
boundaries. grants;of land to individuals or Indian communities can be
After the independence of Central America from Spain consideredas "titles" in the same sense as,for example, a
was proclaimed on 15 September 1821, Honduras and Spanish Royal Decree attributing certain areasto a particu-
El Salvador first made up, together with Costa Rica, Gua- lar aclministrative unit; they are rather comparable to
temala and Nicaragua, the Federal Republicof Central "colonial effectivitks" as defined in a previous case,i.e.,
America, correspondingto the former Captaincy-General "the conduct of the administrative authoritiesas proof of
of Guatemala or Kingdom of Guatemala. On the disinte- the effective exerciseof territorialjurisdiction inthe region
gration of that Republicin 1839,El Salvador and Hondu- during the colonial period" (1.C.J.Reports 1986, p. 586,
ras, along withthe other component States, became sepa- para.63). In some cases the grant of a title was not per-

rate States. fected.,but the record, particularlyof a survey, remainsa
~h~ Chamberoutlines the developmentof the three ele- ''~olonialeffectivitk" which may serve as evidence of the
ments of the dispute, beginning with the genesis of the position a provincial
island disputein 1854andof the landdisputein 1861.Bor- Refemng to the seven sectorsof the boundary agreedin
der incidents led to tensionandsubsequentlyto armed con- the General Treatyof Peace,the Chamber assumes thatthe
flict in 1969,but in 1972El Salvador and Honduras were agreeti boundary was amved at applying principles and
able to agree on the major part of their land boundary, processes similarto those urged upon the Chamberfor the
which had not yet been delimited, leaving, however, six non-agreed sectors. Observing the predominanceo .f local
sectors to be settled. A mediation process begun in 1978 features, particularly rivers, in the definitionof the agreed
led to a General Treaty of Peace, signed and ratifiedin sectors, the Chamber has taken some account ofthe suit-
1980by the two Parties, which defined the agreed sections abilityof certain topographical featuresto provide aniden-
of the boundary. tifiable and convenient boundary. The Chamber is here
appealing not so much to any concept of "natural fron-
The Treaty further provided that a Joint Frontier Corn- tiers":,but rather to a presumption underlyingthe bound-
mission should delimit the frontier in the remaining six aries on which the utipossidetisjuris Operates.
sectors and "determine the legal situation of the islands
and the maritime spaces". It provided that if within five Under article 5 of the Special Agreement, the Chamber
years total agreement wasnot reached, the Parties would, is to take into account therules of internationallaw appli-
within six months, negotiate and concludea special agree- cable between the Parties, "including, where pertinent, the
ment to submit any existing controversyto the Interna- provisions of' the Treaty. This presumably means that the
tional Court of Justice. Chamber should also apply, where pertinent, even those
the Commission did not accomplish its task within articles which inthe Treaty are addressed specificallyto
the time fixed, the Parties negotiated and concluded on the Joint FrontierC~mmi~~i~nO . ne of these is article 26
24 May 1986the Special Agreement mentioned above. of the Treaty,to the effect that the Commission shalltake
as a basis for delimitation the documents issued bythe
Spanish Crownor any other Spanish authority, secularor
111. Theland boundary: introduction ecclesiastical, during the colonial period, and indicating
(paras. 40-67) the jurisdictions or limits of territories or settlements, as
The Parties agree that the fundamental principlefor de- well as other evidence and argumentsof a legal, historical,

termining the land frontieris the utipossidetis juris. The human or any other kind, brought before itby the Parties
Chamber notes that the essenceof the agreed principleis and aclmittedunder international law.
its primary aim of securing respect for the territorial Drawingattention to the differencebetweenits task and
boundariesat the time of independence,and its application that of the ~ ~ ~ ~ i ~ ~ w~hi,ch had merely to propose a
has resulted in colonial administrative boundaries being frontierline,the chamber observesthat article26 is notan
transformed into international frontiers. applicable law clause, but rathera provision about evi-
In Spanish Central America there were administrative dence. In this light,the Chambercomments on one particu-
boundaries of different kindsor degrees, andthe jurisdic- lar class of titles, referred to as the "formal title-deeds to
tions of general administrative bodiesdid not necessarily commons", for which El Salvador has claimeda particular
coincide territorially with thoseof bodies possessing par- status in Spanish coloniallaw, that of acts of the Spanish
ticular or special jurisdiction. In additionto the various Crown directly determining the extent of the territorial
civiljurisdictions there were ecclesiastical ones, whichthe jurisdiction of an administrative division. These titles,the

main administrative unitshad to follow in principle. so-calledtitulosejidales, are, accordingto El Salvador,the
20blestpossible evidenceIn relationto the applicationof the the principle ofutipossidetisjuris could be adjusted sub-

u,ripossidetisjzrris principle. sequently (exceptby agreement) onthe groundof unequal
The Chamberdoes not accept any interpretationof arti- population density.TheChamber will not losesightof this
cle 26 as signifyingthanthe Parties haveby treaty adopted dimensionof the matter, which is, however, without direct
a special ruleor method of determinationof the zrtipos- legal incidence.
sidetisjuris boundaries, on the basis of divisionsbetween El Salvador also relieson the alleged occupationof dis-
Irrdianpoblaciones. It was the administrative boundaries puted areas by Salvadorians,their ownership of land in
between Spanish colo~lialadministrative units, not the those areas, the supplyby it of public servicesthere andits
boundaries between Indian settlementsas such, that were exercise in the areas of government powers, and claims,
transformedinto international boundaries in 1821. interalia, that the practiceof effective administrative con-
El Salvador contends that the commons whose formal trol has demonstrated an"animus" to possess the territo-
title-deeds it relies on were not privatemperties but be- ries. Honduras rejects any argumeno t feffectivecontrol",
longed to the municipal councils of the corresponding suggesting thatthe concept refers onlyto administrative
poblaciones.Controloverthosecommunal landsbeingex.- control prior to independence. It considers that, at least
ercised by the municipal authorities, andover and above since 1884,no actsof sovereigntyinthe disputed areascan
be relied onin view of the duty to respect thestatus quo
them bythose of the colonial provinceto which the com in a disputed area. It has, however, presented considerable
mons had been declaredto belong, El Salvador maintains materialto show that Honduras can also relyon arguments
that if such agrant of commons to a community in onc:
province extendedto landssituated withina.nother,the ad.. of a humankind.
ministrative controlof the provinceto which the commu- The Chamberconsidersthat it may have regard, in certain
nity belonged was determinativefor the applicationof the: instances,to documentaryevidence of post-independence
utipossidetis juris, i.e., that, on independence, thewhole: effectivitb affording indicationsof the 1821utipossidetis
areaof the commons appertainedto the State within which1 jurisboundary, provided a relationshipexists betweenthe
the community was situated.TheChamber, whichis facedl effectivitksand the determination ofthat boundary.
with a situationofthis kindinthreeof six disputed sectors,. El Salvador drew attentionto difficulties in collecting
has,however, been ableto resolve the issue withouthaving: evidence in certain areas owingto interference with gov-
to determine this particular questionof Spanish colonial ernmental activities dueto acts of violence. The Chamber,
law, and thereforesees ]noreason to attempt to do so.
In the absenceof legislative instruments formally defin- while appreciatingthese difficulties, cannot apply a pre-
ing provincial boundaries,not only land grants to Indian sumption that evidence which is unavailable would, if pro-
communities butalso grants to private individuals afford duced, have supported a particular Party's case, still less a
someevidenceasto the llocationof boundaries. There must presumption of the existence of evidence not produced.In
be a presumption thatsuch grants would normally avoid viewofthese difficulties,El Salvador requestedthe Cham-
straddling a boundary between different administrative ber to consider exercisingits functions under Article66 of
authorities, and where the provincialboundary location the Rulesof Court to obtain evidencein situ. The Parties
were, however, informed that the Chamberdid not con-
wasdoubtful thecommonboundariesoftwo grantsby dif- sider it necessaryto exercise the functionsin question,nor
ferent provincialauthorities could well have become the to exercise its power, under Article50 of the Statute, to
provincial boundary.The Chamber therefore considers the arrange for an inquiry or expert opinion in the case, as
evidence of each of thes,egrants on its merits and in rela- El Salvadorhad also requested itto do.
tion to other arguments,but without treating themas nec-
esriarilyconclusive.
With regardto the land thathad not been the subjectof
grants of various kinds by the Spanish Crown, referredto
as crown lands, tierras iealengbs, the Parties agree that The Chamber will examine, in respect of each disputed
such landwas not unattributed butappertaiiiedto the one sector, the evidence of post~colon~aleffctivitiss. Even
province or the other and accordingly passed, on in&- when claims of effectivit6are given their due weight, it
pemdence,into the sovereigntyoftheoneSta~:e orthe other.
Withregardto post-independencegrantsortitles,the so- may occur in some areas that, following the delimitation
called "republicantitles", the Chamber considers that they of the disputed sector, nationalsof one Party will find
malYwell provide some evidence of the ~o!;itionin 1821 themselvesin the-territory of the other. The Chamberhas
and both Parties have offered themas such. every confidence thatthenecessary measures totakeaccount
of this will be taken by the Parties.
El Salvador, whileadmittingthat the utipossidetisjuris 1, connectionwiththe conceptofthe date", the
is primary eltXnentfor determiningthe land boundary, Chamber observes that there seems to be no reason why
alsoputsforward,inreliance onthesecondpalt ofarticle26, acquiescenceorrecognitionshouldnotoperatewhere there
arE:umentsreferred to a:seither "arguments of a human is sufficientevidenceto showthatthe Partieshaveineffect
nature" or arguments based oneffectivitks.Ilonduras also accepteda variation or an interpretationof the uti
recognizes a certainconifirmatoryrole for ejyectivitis and possidetisjuris position.
has;submitted evidenceof actsof administrationof its own
for that purpose.
131Salvador has first advanced argumentsand material IV. First sector of theland boundary
relating to demographic -pressuresinEl Salvador creating (paras. 68-103)
a need for territory, a!r compared with l.he relatively The first disputedsectorof the land boundaryruns from
sparsely populated Honduras, andto the superior natural the agreedtripoint wherethe frontiersofEl Salvador, Guate-
resources saidto be enjoyed by Honduras. El Salvador, malaand Hondurasconverge (CerroMontecristo)tothesum-
mit of the Cerro Zapotal(see sketch-map A on page 35).
however,does not appearto claim that afrontierbasedon
21 Both Parties recognize that most of the area between the municipality. El Salvador also relies on a report by a Hon-
lines they put forward corresponds to the land that was the duran Ambassador stating that the lands of the disputed
subject of a titlrloejidal over the mountain of Tepangiiisir, area belonged to inhabitants of the municipality of Citala
granted in 1776to the Indian community of San Francisco in El Salvador. The Chamber, however, does not regard
de Citala, which was situated in, and under thejurisdiction this as sufficient since to constitute aneffectiviti relevant
of, the province of San Salvador. El Salvador contends to the delimitation of the frontier at least some recognition
that on independence the lands so granted became part of or evidence was required of the effective administration of
El Salvador, so that in 1821the boundary of the two prov- the municipality of Citala in the area, which, it notes, has
inces was defined by the north-eastern boundary of the not been proved.
Citala ejido. Honduras, on the other hand, points out that El Salvador also contends that ownership of landby Sal-
when the 1776title was granted, those lands included in it vadorians in the disputed area less than 40 kilometres from
were specifically stated to be in the Honduran province of the line:Honduras claims as the frontier showsthat the area
Gracias a Dios, so that the lands became on independence was not part of Honduras, as under the Constitution of
part of Honduras. Honduras land within 40 kilometres of the frontier may
The Chamber considers that it is not required to resolve only be acquired or possessed by native Hondurans. The
this question. All negotiations prior to 1972 over the dis- Chamber rejects this contention since at the very least
pute as to the location of the frontier in this sector were some rc:cognitionby Honduras of the ownership of land by
conducted on the basis, accepted by both sides, that it was Salvadorians would have to be shown, which is not the

the boundary between the ejidos of Citali and Ocotepeque case.
that defined the frontier. The frontier corresponding to The Chamber observesthat in thecourseofthe 1934-1935
Honduras's current interpretation of the legal effectof the negotiations agreement was reached on aparticular frontier
1776 Citala title was first put forward in negotiations held line in this area. The agreement by the representatives of
in 1972. Moreover, a title granted by Honduras in 1914, El Salvador was only ad rejkrendum, but the Chamber
and the position taken by Honduras in the course of tripar- notes that while the Government of El Salvador did not
tite negotiations held between El Salvador, Guatemala and ratify the terms agreed upon ad referendum, neither did it
Honduras in 1934-1935,confirmed the agreement between denounce them; nor did Honduras retract its consent.
the Parties that the boundary between Citali and The Chamber considers that it can adopt the 1935 line,
Ocotepeque defined the frontier between them. After re- primarily since for the most part itfollows the watersheds,
calling that the effect of the uti possidetis juris principle which provide a clear and unambiguous boundary; it re-
was not tofreeze for alltime the provincial boundaries, the iterates its view that the suitability of topographical fea-
Chamber finds that Honduras's conduct from 1881to 1972 tures to provide a readily identifiable and convenient
may be regarded as acquiescence in a boundary corre- boundary.is the material aspect where no conclusion un-
sponding to that between the Tepangiiisir lands of Citala
and those of Ocotepeque. ambiguously pointing to another boundary emerges from
The Chamber then turns to the question of a triangular the docmmentarymaterial.
area where, according to Honduras, the 1818 title of As regards material put forward by Honduras concern-
Ocotepeque penetrated the north-eastern boundary of ing the settlement of Hondurans in the disputed areas and
Citala, and to the disagreement between the Parties as to the exercise there of government functions by Honduras,
the interpretation of the Citala survey as regards the north- the Chamber finds this material insufficient to affect the
western area. decision by way of effectivitis.
The Chamber's conclusion regarding the first disputed
With regard to the triangular area, the Chamber does not sector of the land frontier is as follows:'
consider that such an overlapping would have been con- "It begins at the tripoint with Guatemala, the 'point
sciously made, and that it should only be concluded that known as El Trifinio on the summit of the Cerro
an overlap came about by mistake if there is no doubt that Montecristo' ... From this point, the frontier between
the two titles are not compatible. The identification of the
various relevant geographical locations cannot, however, direction, following the direct line of watersheds, in
be achieved with sufficient certainty to demonstrate an
overlap. accordance with the agreement reached in 1935, and
With respect to the disagreement on the boundary ofthe acceptedad referendumbytherepresentativesofElSalva-
Citali title, the Chamber concludes that on this point the frontier runs 'along the watershed between the rivers,the
Honduran interpretation of the relevant survey record is to Frio or Sesecapa and Del Rosario as far as the junction
be preferred. of this watershed with the watershed of the basin of the
quehrada de Pomola' . ..;'thereafter in a north-easterly
The Chamber then turns to the part of the disputed area direction along the watershed of the basin of the que-
lying between the lands comprised in the Citala title and brada de Pomola until the junction of this watershed
the international tripoint. Honduras contends that since, with the watershed between the quebrada de Cipresales
according to the survey, the land in this area was crown and the quebrada del Cedrbn, Peiia Dorada and Pomola
land (tierras realengas), and the survey was being effected proper' . . . ; 'from that point, along the last-named
in the province of Gracias a Dios, these must have been watershed asfar asthe intersection of the centre-lines
tierras realengas of that province and hence are now part
of Honduras. 'thereafter, downstream along the centre-line of the;
El Salvador, however, claims this area on the basis of
effectivitis, and points to a number of villages or hamlets --
belonging to the municipality of Citala withinthe area. The 'see sketch-map A on page 35; forthe identificationlettersand
Chamber notes, however, the absence of evidence that the coo,dinatesof the definedpoints, see the operativeclause
area or its inhabitants were under the administration of that for inspectionin the Registry. andthe 1:50,000mapsavailable quebrada de Pomola, until the point on that centre-line pendence. The Chamber examines in detail the Parties'
which is closest to the boundary markel-of Pomola at conflicting interpretation of the title; it does not accept
El Talquezalar; and from that point in a straight line El Salvador's interpretation whereby it would extendas far
as far as that marker'... From the bountlary marker of west as the Peiia de Cayaguanca, and as coterminous with
El Talquezalar, the frontier continues in a straight line the land surveyed in 1742 for the Jupula title, and con-
in a south-easterly direction to the boundary marker of cludes that there was an intervening area not covered by
the Cerro Piedra Menuda ..., and thence in a straight either title. On this basis the Chamber determines the
line to the boundary rnarker of the Cerro Zapotal .. ." course of the north-western boundary of the title of Dulce
Nombre de la Palma; the eastern boundary, as recognized
V. Second sector of the land boundaty by both Parties, is the river Sumpul.
(paras. 104-127)
The Chamber then examines three Honduran republican
The second disputed sector of the land boundary lies titles in the disputed area, concluding that they do not con-
between the Peiia de Cayaguanca, and the confluence of' flict with the Dulce Nombre de la Palmatitle so asto throw
the streamof Chiquita or Oscurawith the rivar Sumpul(see doubt on its interpretation.
sketch-mapB on page 36). Honduras basesits claim chiefly
on the 1742 title of Jul)ula, issued in the context of the The Chamber goes onto examinethe effectivitksclaimed
lomg-standingdispute between the Indians of Ocotepeque, by each Party to ascertain whether they support the con-
in the province of Gracias a Dios, and those of Citalh, in clusion based on the latter title. The Chamber concludes
the province of San Salvador. The principal outcome was that there is no reason to alter its findings as to the position
the confirmation and agreement of the boundaries of the of the boundary in this region.
lands of Jupula, over which the Indians of Ocotepeque The Chamber next turns to the claim by El Salvador to
claimcd to have rights and which were attributed to the a triangular strip along and outside the north-west bound-
Indiansof Citala. Itwas, however, recordedthat the inhabi- ary of the Dulce Nombre de la Palma title, which El Sal-
tants of Ocotepcque, having recognized the entitlement of'
the inhabitants of Citala to the land surveyed, also re- vador claims to be totally occupied by Salvadorians and
quested,"that there be left free for them a mountain called administered by Salvadorian authorities. No evidence to
Cayaguanca which is a.bove the Jupula river, which is that effect has, however, been laid before the Chamber.
crown land", and this request was acceded ::o. Nor does it consider that a passage in the Reply of Hondu-
ras regarded by El Salvador as an admission of the exist-
The Chamberfinds that the Jupulatitle was evidence that ence of Salvadorian effectivitks in this area can be so read.
in 1742the mountain of Cayaguancawas tiel~rasrealengas There being no other evidence to support El Salvador's
and since the community of Ocotepeque, in the province claim to the strip in question, the Chamber holds that it
of Gracias a Dios, was to cultivate it, it concludes that the appertains to Honduras, having formed part of the "moun-
mountain was tierras re~!lengasof that province, for which tain of Cayaguanca" attributed to the community of
reason the mountain must on independence have formed Ocotepeque in 1742.
part of Honduras on the basis of the utipossidetis juris. The Chamber turns finally to the part of the boundary
The Chamber then turns to the location and extent of between the Peiiade Cayaguancaandthe westernboundary
the mountain, which, according to Hondcras, extended
over the whole of the disputed area in this sector, a claim of the area covered by the Dulce Nombre de la Palma title.
disputed by El Salvador. In addition to arguments based It finds that El Salvador has not made good any claim to
on the wording of the 1742title, El Salvadclrrefers to the any area further west than the Loma de 10s Encinos or
1818 title of Ocotepeque, issued to the community of "Santa Rosa hillock", the most westerly point of the Dulce
Nombre de la Palma title. Noting that Honduras has only
Ocotepeque to re-establish the boundary rnarkers of its asserted a claim, on the basis of the rights of Ocotepeque
necessarily have been included in that title if it had truly to the "mountain of Cayaguanca", sofar south asa straight
line joining the Peiia de Cayaguanca to the beginning of
bccn awarded to the inhabitants of 0cotep:que in 1742. the next agreed sector, the Chamber considers that neither
The Chamber does not accept this argument; it finds that the principle ne ultra petita, nor any suggested acquies-
in 1821 the Indians of Ocotepeque, in the province of cence by Honduras in the boundary asserted by it, debars
Gracias a Dios, were entitled to the land resurveyed in the Chamber from enquiring whether the "mountain of
1818, and also to rights of usage over the mountain of Cayaguanca" might have extended further south, so as to
Cayaguanca somewhere to the east, and that the area sub- be coterminous with the eastern boundary of the Jupula
ject to these rights, being tierras realengas of the province title. In view of the reference in the latter to Cayaguanca
of Gracias a Dios, becanie Honduran upon independence. as lying east of the most easterly landmark of Jupula, the
'Theproblem remains, however, of determining the ex- Chamber considers that the area between the Jupula and
tent of the mountain of Cayaguanca. The Chamber sees no the la Palma lands belongs to Honduras, and that in the
evidence of its boundaries, and in particular none to sup- absence of any other criteria for determining the south-
port the Honduranclaim thatthe area soreferred to in 1742 ward extent of that area, the boundary between the Pefiade
extended as far east as the river Sumpul, as claimed by Cayaguanca and the Loma de 10s Encinos should be a
Honduras. straight line.

'TheChamber next considers what light might be thrown The Chamber's conclusion regarding the course of the
on the matter by the republican title invoked by El Salva- frontier in the second disputed sector is asfollow^:^
dor, referred to as that of Dulce Nombre de la Palma,
granted in 1833 to the community of La Palma in El Sal- *see sketch-mapB on page 36;fortheidentificationlettersand
vador. The Chamber considers this title significant in that coordinatesof the variousdefinedpoints,see theoperativeclause
it showcd how the utipossidetis juris position was under- of the Judgment,set out above,andthe 1:50,000mapsavailable
stood when it was granted, i.e., very shortly after inde- for inspectionin the Registry. "From .. .the Peiiade Cayaguanca, thefrontierruns in
a straight line somewhat south of east to the Loma de the proviinceof Gracias a Dios and that of San Salvadorin
Los Encinos ... , and from there in a straight line on a the area under considerationand thus the irtipossidetisjuris
bearing of N 48' E, to the hill shown on the map pro- line, which the Chamber describes.
duced by El Salvador as El Burro (and on the Honduran With regard to the third part of the sector, the Chamber
maps and the United States Defense Mapping Agency considers that on the basis of the reconstructed 1742title
maps as Piedra Rajada) ... The frontier then takes the of Nombre de Jesus and the 1766and 1786surveysof San
shortest course to the head of the quebrada del Copan- Juan de Arcatao, it is established that the uti possidetis
tillo, and follows the qzrebrada del Copantillo down- juris line correspondedto the boundary between thosetwo
stream to its confluence with the river Sumpul ... ,and properties, which line the Chamber describes.In order to
follows the river Sumpul in turn downstream until its define the line more precisely the Chamber considers it
confluence with the quebrada Chiquita or Oscura ... " legitimateto have regard to the republicantitles granted by
Honduras in the region, the line found by the Chamber
VI. Thirdsector of the land boundary being consistent with what it regards as the correct geo-
(paras. 128-185) graphical location of those titles.
Having completed its survey of the utipossidetis juris
The third sector of the land boundary in dispute lies position, the Chamber examines the claims made in the
between the boundary markerof the Pacacio, on the river whole of the third sector on the basis of effectivitks.
of that name, andthe boundary markerPoza del Cajbn, on Regarding the claims made by El Salvador on such
the river known as El Amatillo or Gualcuquin (see sketch- grounds, the Chamber is unable to regard the relevant
map C on page 37). material as sufficient to affect its conclusion as to the
In terms of the grounds asserted for the claims of the position of the boundary. The Chamber reaches the same
Parties the Chamber divides the disputed area into three conclusionas regardsthe evidence of effectivitkssubmitted
parts. by Honduras.

In the first part, the north-westem area, Honduras in- The Chamber's conclusion regarding the course of the
vokes the utipossidetis juris of 1821on the basis of land boundary in the third sector is as follows:3
titles granted between 1719and 1779.El Salvador, onthe "Frorn the Pacacio boundary marker . . along the rio
contrary, claims the major part of the area on the basis of Pacacio upstream to a point . . .west Of the Cerro
post-independence effeectivitis or arguments of a human TecO1ate Or Tecolates; from there the quebrada
nature. It does, however, claima portion of the area as part to the crest of the Cerro Tecolate or Los Tecolates ... ,
of the lands of the 1724title of Arcatao. and along the watershed of this hill as far as a ridge
In the second part, the essential question isthe validity, approximately 1 kilometre to the north-east ... ; from
extent and relationship to each other of the Arcatao title there in an easterly direction to the neighbouring hill
reliedonbyElSalvadorand eighteenth-century titlesinvoked above the sourceofthe Torrente La Puerta . ..and down
by Honduras. that stream to where it meets the river Gualsinga .. .;
In the third part, the south-east section, thereis a similar from there the runs the the
conflict between the A~~~~~~ title and a lost title, that of river (iualsinga downstream to its confluence with the
Nombre de Jesus in the province of Sari Salvador, on the Sazala~a .. and thence upstream the of
one hand, and the Hondurantitles of San Juan de Arcatao, the river Sazalapa to the confluence with the river
the Honduran ofLaVirtud south-eastwards to the hill indicated .,and thence to
and San Sebastihn del Palo Verde. El Salvador claims a
further area, outside the asserted limitsof the Arcatao and the ofthe hillmarkedonmapsasbeing anelevation
Nombre de Jesus titles, on the basis of effectivitks and of ,017metres ..; from therethe boundary,incliningstill
human arguments. more to the south, runs through the triangulation point
known as La Caiiada . ..to the ridge joining the hills
The Chamber first surveys the utipossidetis juris posi- indicated on the El Salvador map as Cerro El Caracol
tion on the basis of the various titles produced. marked on the maps as the POrtil10 therChu~aMielfeat... ;
With regard to the first part of the third sector, the
Chamber upholds Honduras's contention in principle that and thence to the point where the present-day road from.
the position of the pre-independence provincial boundary Arcatao to Nombre de Jesus passes between the Cerro
is definedby two eighteenth-century Hondurantitles. After El Ocotillo and the Lagunetas . ; from there
first reserving the question of precisely where theirsouth- south-eastwards, to the top of the hill...marked onthe
em limits lay, since if the Chamber found in favour of maps with a spot height of 848 metres; from there
El Salvador's claim basedoneffectivitis, it would not have slightly south of east to a small quebrada; eastwards
to be considered, the Chamber ultimately determinesthe down the bed of the que~rada to its junction with the
boundary in this area on the basis of these titles. river Amatillo or Gualcuquin .. .; the boundary then
As for the second part of the third sector, the Chamber follows the middle of the Gualcuquinriver downstream
considers it impossible to reconcile all the landmarks, dis- tothe Pozadel Caj6n. ..,thepoint wherethe nextagreed
tances and directions given in the various eighteenth- sector of boundary begins."
century surveys: the most that can be achieved is a line
which harmonizes with such features as are identifiable
with a high degreeof probability, corresponds moreor less
to the recorded distances and does not leave any major dis- -
crepancy The Chamber considers that three 3~eesketch-map C on page 37;fortheidentificationletterasnd
features are identifiable and that these three reference coordinatcsof thevarious defined pointss,e theoperative clause
points makeit possibleto reconstructthe boundarybetween for inspectionnstheRegistry.,andthe 1:50,000mapsavailable

24VII. Fourthsector of the land boundary by doubts each Party casts on the regularity or relevance
(paras. 186-267) of titles invoked by the other.
After listing chronologically the titles and documents
The fourth, and longest, disputed sector of the land claimed by the one side or the other to be relevant, the
boundary, also involvi~~g the largest area in dispute, lies
between the source of the Orilla stream and the Malpaso Chamber assesses five of these documents to which the
de Similat6n boundary marker (see sketch-map D on Parties took objectionon various grounds.
page 38). The Chamber goes on to determine, on the basis of an
examination of the titles and an assessment of the argu-
The principal issue in this sector, at least as regards the ments advanced by the Parties by reference to them, the
sizeofthe area concerned, is whether the bclundaryfollows line of theutipossidetis juris in the sub-sector under con-
the river Negro-Quiagara, as Honduras contends, or a linle sideration. Having established that the inter-provincial
contended for by El Salvador, some 8 kiilometresto the boundary was, in one area, the river Las Caiias,the Cham-
north. Intermsofthe utipossidetis juris prii~ciple,theissue ber relies on a presumption that sucha boundary is likely
is whether or not the province of San Miguel, which on to follow the river so long as its course is in the same gen-
independence became part of El Salvador, extendedto the eral direction.
north of that river or whether onthe contrary the latterwas
in 1821 the boundary between that province and the The Chamber then turns to the final section of the
province of Comayagua, which became pa:rtof Honduras. boundary between the river Las Caiiasand the source of
El Salvador relies on a title issued in 1745to the commu- the Orilla stream (end-point of the sector). With respect
nities of Arambala and Perquin in the pi-ovinceof San to this section, the Chamber accepts the line claimed by
Miguel; the lands so granted extended non:hand south of Honduras on the basisof a title of 1653.
th~eriverNegro-Quiagara,but Hondurascontendsthat, north The Chamber next addresses the claim of El Salvador,
ofthat river, the lands were in the province of Comayagua. based uponthe utipossidetis juris in relationto the concept
of tierras realengas (crown land), to areas to the west and
The Chamber first sets out the relevant events, in par- south-westof the land comprisedin the ejidos of Arambala
ticulara disputebetween.the Indian communityof Arambala
aridPerquin, in the province of San Miguel, and an Indian Perquin, lying on each side of the river Negro-Quiagara,
community established iinJocoraor Jocoara in the province bounded on the west by the river Negro-Pichigual. The
of Comayagua. The position of the boundary betweenthe Chamber finds in favour of part of El Salvador's claim,
province of San Miguel and that of Comayagua was on(: south of the river Negro-Pichigual, but is unableto accept
of the main issues inthe dispute between thetwo commu- the remainder.
nities, which gave rise to a judicial decision of 1773. In The Chamber has finallyto deal with the eastern partof
11315 a decision was issued by the Real Audiencia of the boundary line, that between the river Negro-Quiagara
Guatemala confirming the rightsof the Indiansof Arambala- and Malpaso de Similat6n. An initial problem is that the
Parquin. The Parties made extensive reference to these de- Parties do not agree on the position of the Malpaso de
cisions in support ofthe:ircontentions as to the locationoiF Similatbn, although this point defines one of the agreed
the boundary; the Chamber is, however, reluctantto base: sectors of the boundary as recorded in article 16 of the
a conclusion, one way or the other, on the 1773 decision 1980 Peace Treaty, thetwo locations contended for being
2,500 metres apart. The Chamber therefore concludesthat
and does not regard the 1815one as wholly conclusive in there is a dispute betweenthe Parties on thispoint, which
respect of the location of the provincial boundary.
The Chamber then cclnsidersa contentio:nby Honduras it has to resolve.
that El Salvador had in 1861 admitted that the Arambala-. The Chamber notesthatthis dispute ispart of a disagree-
Perquin ejidos extended across the provincial boundary, ment as to the course of the boundary beyond the Mal~aso
ltrefers to a note of 14 May 1861 in which the Minister de Sirnilaton, in the sector which is deemed to have been
for Foreign Relations of ~1 Salvador suggested negotia-. agreed. While it does not consider that it has jurisdiction
tions to settle a long-standing dispute between the inhabi- to settle disputed questions in an "agreed" sector, neither
tants of the villages of ,\rambala and Perquin, on the one: does it consider that the existenceof such a disagreement
hsmd,and the village of Jocoara, on the otlier, and to the affects itsjurisdiction to determine the boundaryup to and
report of surveyors appointed to resolve the inter-village including the Malpaso de Similat6n-
dispute. It considers this note to be significznt not only as,
Noting that neither side has offered any evidence what-
in effect, a recognition that the lands of the Arambala- ever as to the line of thetipossidetis juris in this region,
Pe:rquincommunity had, prior to independence, straddled the Chamber, being satisfied that this line is impossible
the provincial boundary, but also as recognition that, as a to determine in this area, considers it right to fall back on
result, they straddled the international frontier. equity infra legem, in conjunction with an unratified de-
~h~ chamber then turns to the south-western part of. limitation of 1869. The Chamber considers that it canin
th,e disputed boundary, to as the sub-sector of this case resort to the line then proposed in negotiations,
~ ~ , l ~ ~ ~ ~ ~~h~~prob.lem here is, in broad terms, the as a reasonable and fair solution in all the circumstances,
determination of the extent of the lands of C:olomoncagua, particularly since there is nothing in the records of the
province of Comayagua (Honduras),to the \;vest,and those negotiations to suggest any fundamental disagreement
ofthe communitiesof Arambala-Perquinand Torola,prov- between the Parties On that line-
The Chamber then considers the questionof the effec-
ince of San Miguel (El Salvador), to the east and south-
east. Both Parties rely ontitles and other d01:umentsof the tivitks El Salvador claims in the area north of the river
colonial period;El Salvador hasalso submitteda remeasure- Negro-Quiagara, which the Chamber has found to fallon
merit and renewed title of 1844.The Chamber notes that the Honduran side of the line ofthe utipossidetisjuris, as
apart from the difficulties of identifying landmarks and well as the areas outside those lands. After reviewing the
reconciling the various surveys, the matter i.scomplicated evidencepresentedby El Salvador, the Chamberfindsthat,
25to the extent that it can relate various place-names to the it as part of the lands of Cacaoterique, a village in the
disputed areas and to the utipossidetis juris boundary, it jurisdiction of Comayagua.
cannot regard this material as sufficient evidence of any
kind of eflectivitbswhich could be takeninto account in Noting that the title of Poloros was grantedby the
authorities of the province of San Miguel,the Chamber
determiningthe boundary. considers;that itmust be presumed that the lands comprised
Turning to the eflectivitbs claimed by Honduras, the in the survey were all within the jurisdiction ofSan
Chamber does not see here sufficient evidence of Hon- Miguel, a presumption which, the Chamber notesi,s sup-
duran effectivitbs to an area clearly shown to be on the ported by the text.
El Salvador side of the boundary lineto justify doubting After examiningthe available materialas to the exist-
that that boundary representsthe utipossidetisjuris line. ence, location and extentof the villageof San Miguelde
The Chamber's conclusion regarding the course of the Sapigre,the Chamber concludes thatthe claim of Honduras
boundary in the fourth disputedsector is as follow^:^ through that extinct villageis not supported by sufficient
"from the source of the Orilla stream . .. the boundary evidence;it does not thereforehaveto go into the question
runs through the pass of El Jobo to the source of the of the effectof the inclusion in anejido of onejurisdiction
CuevaHediondastream ... ,andthencedownthemiddleof of tierras realengasof another.It concludes that theejido
that streamto itsconfluencewith the riveL r asCaiias..., granted in 1760to the village of Polor6s, in the province
and thence following the middle of the river upstream of San Miguel, was wholly situated in that province and
as far as a point ... near the settlement of Las Piletas; that accclrdinglythe provincial boundary lay beyond the
fromthere eastwardsoveracol ...to ahill..., and then northern limit of that ejido or coincided with it. There
north-eastwards to a point on the river Negro or being equallyno evidence of any change in the situation
Pichigual ...;downstreamalongthe middleofthe river between 1760 and 1821,the utipossidetis juris line may
Negro or Pichigual to its confluence with the river be taken to have beenin the same position.
Negro-Quiagara ... ;then upstreamalongthe middleof
the river Negro-Quiagaraas far as the Las Pilas bound- he Chamberthen examines the claim of Hondurasthat,
ary marker . .., and from there in a straight line to the whateverthe 1821position,ElSalvadorhad,byitsconduct
Malpasode Sirnilatonas identified by Honduras". between 1821and 1897,acquiesced in the river Torolaas
boundary.The conduct in question wasthe grantingby the
VIII. Fifthsector of the landboundary Governnientof El Salvador,in 1842,of a title to an estate
(paras. 268-305) that both Parties claim was carved out of the ejidos of
Polor6s and El Salvador's reaction,or lack of reaction,to
The fifth disputedsectorextends from"the point onthe the granting of two titles over lands north of the river
north bank of the river Torola where itis joined by the Torola by Honduras in 1856and 1879.Froman examina-
Manzupucagua stream"to the Paso de Unire in the Unire tion of these events, the Chamberdoesnot findit possible
river (see sketch-mapE on page 39). to uphold Honduras's claim thaE t l Salvador acquiesced in
ElSalvador'sclaimisbasedessentially onthe thlo ejidal the river Torolaas the boundary inthe relevant area.
grantedto the village of Polor6s,provinceof San Miguel, TheChambergoeson tointerprettheextentofthe Poloros
in 1760,followinga survey; the boundary lineEl Salvador ejido as surveyed in 1760, on the faceof the text andin
claims is what it considersto be the northern boundaryof the lightof developments after 1821. Followinga lengthy
the landscomprised in that title, savefor a narrowstripon and detailedanalysisof the Polor6stitle, the Chambercon-
the western side, claimedon the basis of "human argu- cludesthat neitherofthe interpretationsof it by the Parties
ments". can be reconciled withthe relevant landmarks and dis-
tances; the inconsistency crystallized during the negotia-
Honduras, while disputing El Salvador's geographic tions thatled up to the unratified Cruz-Letona Convention
interpretationofthe Polor6stitle,concedesthat it extended in 1884.In the lightof certain republican titles, the Cham-
across partof the river Torola, but nevertheless claims that ber arrivesat an interpretationof the Polor6stitle which,
the frontiertoday should follow that river. It contends that if not perfectlyin harmony with all the relevant data, pro-
the northern partof the ejidos granted to Polor6s in 1760, ducesa better fit thaneitherof the Parties' interpretations.
includingall the landsnorthofthe river andalsoextending Asto neighbouring titles, the Chamber takes the view that,
south of it, had formerly beenthe land of San Miguelde on the material available, no totally consistent mappingof
Sapigre,a village whichhad disappearedowing to an epi- the Polorbs title and the survey of Cacaoterique can be
demic some time after 1734,andthat the village had been achieved.
inthejurisdictionofComayagua, sothatthose lands,although Inthe eastern partof the sector, the Chamber notes that
granted to Polor6s, remained within that jurisdiction. It the Parties agree thatthe river Unire constitutesthe bound-
follows, accordingto Honduras,thatthe utipossidetisjuris
line ran along the boundary between those landsand the ary of their territories for some distance upstreamof the
other Polorbslands; but Hondurasconcedesthat as aresult "Paso de Unire", but disagree as to which of two tribu-
of eventsin 1854it acquiesced ina boundary further north, taries is to be regarded as the headwaters of the Unire.
formed by the Torola. Alternatively, Honduras claims the Honduras claims that between the Unire and the head-
Polorbslandsnorthofthe river on the basisthat ElSalvador waters of the Torola the boundaryis a straight line corre-
acquiesced, inthe nineteenth century, in the Torolaasfron- spondingto the south-western limitofthe landscomprised
tier. Thewestern partofthe disputed area, which Honduras in the 1'738Hondurantitle of San Antoniode Padua. After
considers to fall outside the Polor6s title, is claimed by analysingthe Polor6s title and 1682 and 1738 surveysof
San Antonio, the Chamberfindsthat itis not convinced by
4~eesketch-mapD on page38;for the identificatiolettersand the ~ondurah argument that the San Antonio landsex-
coordinatesof thevariousdefined points,seetheoperativeclause tendedweswards across the river Unire and holds that it
of theJudgment,set outabove,andthe 1:50,000mapsavailable Wasthe river which was the uti ~ossidetisjuris line, as
for inspection intheRegistry. claimed by El Salvador. 'Tothe west of the Polor6s lands, since El Salvador's The Chamber observes thatEl Salvador's argumentof
claimto landnorthof theriveris basedsolely on the Polods law,onthe basisthat the formerbedofthe river Goascorin
title (savefor the strip on the west claimed on the basisof forms the uti possidetis juris boundary, is that wherea
"human arguments"), the river Torola forms the boundary boundary isformedbythe courseof a river and the stream
between the Polor6slands andthestartingpoiritofthe sector. suddenly formsa newbed,this process of "avulsion" does
Wi.thregardto the stripof land claimed byEl Salvador on not bring abouta changein the boundary, which continues
the west, the Chamber considers that, for lack of evidence, along the old channel. No record of an abrupt chango ef
this claim cannotbe sustained. course having occurred has been brought to the Chamber's
attention, but were the Chamber satisfied that the course
'Turningfinally to the evidenceof eflectivitis submitted was earlier so radically different from its present one, then
by Honduras with respectto all six sectors, the Chamber an avulsion might reasonably be inferred. The Chamber
coilcludesthat this is insufficient to justify re-examining notes that thereis no scientific evidence that the previous
its conclusionas to theboundaryline. course was such that the river debouched in the Estero
'TheChamber's concl~isionregarding the course ofthe La Cutlirather than in anyof the otherneighbouring inlets
boundaryin thefifth disputedsector is as follows:5
in the coastline.
stream identified in the General Treatyo01'Peace as the El Salvador's case appearsto bethat if the changeinthe
quebrada de Mansupucagua .. . the boundary runs river's course occurred after 1821,the river wasthe bound-
upstream along the middle of the river Torolaas far as ary which under the utipossidetis juris had become the
its confluence witha stream knownasthe quebradadel international frontier,and would have been maintainedas
Arenal or quebrada d.eAceituno ... ;thence up the it was by virtue ofa ruleof international law;if the course
middleofthe courseofthat streamasfaras [a]point,ator changedbefore1821andnofurther changetook place after
nearitssource, ...,andthenceina straightI!inesomewhat 1821,El Salvador'sclaimto the "old" courseasthe mod-
northofeastto ahill some1,100metreshigh. .. ;thence ern boundarywouldbebasedona rule concerning avulsion
inastraightlinetoahill nearthe riverUnire...,andthence which wouldbeonenotof internationallaw butof Spanish
tothenearest point ontheriverUnire;dow~lstream along colonial law. El Salvador has not committed itself to an
that river to the point knownas thePaso d.eUnire ..." opinion on the position of the river in 1812, butdoes con-
tend that a rule on avulsion supporting its claim was part
IX. Sixthsector of the land boundaty of Spanish colonial law.
(paras. 306-322) In the Chamber's view, however, any claim by El Sal-
vador that the boundary followsan old course of the river
The sixth and final disputed sectorof the land boundary abandonedat some time before 1821 must be rejected. It
is that betweena point on the river Goasco:dnknown as ,is a claim that was first madein 1972 and is inconsistent
Lo:;Amates, and the waters of the Gulf of Fonseca (see with the previous history of the dispute.
sketch-mapF on page40').Honduras contends that in 1821
the riverGoascorin constituted the boundary between the The Chamber then turnsto the evidence concerning the
collonialunitsto which thetwo States havesucceeded,that courseof theGoascorin in 1821.El Salvador relies on cer-
there has beenno materialchangein thecour:seofthe river tain titles to private lands, beginning witha 1695 survey.
since 1821, and that the boundary therefon: follows the Honduras produces landtitles dating from the seventeenth
present stream flowingintothe Gulf north-westofthe Islas and nineteenth centuriesas well as a map or chart of the
Ramaditasin the Bay of La Uni6n. El Salvatlor, however, Gulf of Fonseca prepared by an expedition in 1794-1796,
claims that it is a previous course followed by the river and a map of 1804.
which defines the boundary and thatthis course can be Thechamber considers that the reportof the expedition
traced and reaches theGulf at EsteroLa Cutli. that ledto the preparationof the 1796map, andthe map
itself, leave littleroomfodoubt thatin 1821 the Goascorin
The Chamber begins by examining an argumenE t l Sal- was already flowingin its present-day course.It empha-
vadlorbases on history. The Parties agree that during the sizes that the 1796map is not one which purports to indi-
colonial perioda river called theGoascorin constitutedthe cate frontiersor political divisions, but the visual repre-
boundary between the province of San Miguel and the sentation of what was recordedin the contemporary report.
Alcaldia Mayorde Minas of Tegucigalpa, and thatEl Sal- The Chamber sees no difficultyin basing a conclusion on
vad.orsucceeded on inde:pendenceto the territory of the the expedition report combined with the map.
province; butEl Salvador denies thatHondurasacquired TheChamberaddsthat similar weightmaybe attachedto
any.rights over the former territoryof the Alcaldia Mayor the conductofthe Partiesinnegotiationsin 1880and1884.
of Tegucigalpa, which according toEl Salvador did not in In 1884 it was agreed that theGoascorin river was tobe
182: belongto the provinceof Hondurasbut wasan inde- regarded as the boundary between the two Republics,
pendent entity.The Chamber, however, obsarves that on "fromitsmouth intheGulfof Fonseca ... upstreamasfaras
the basisof the utipossidetis juris, El Salvatlorand Hon- the confluence with the Guajiiliquilor Pescadoriver. .. ",
duras succeeded to all the relevant colonial territories,
leaving no terra nullius, and that the fonner Alcaldia and the I880 record refersto the boundary following the
Mtiyorwas at no timeafter 1821an independent state addi- river fromits mouth "upstream in a north-easterly direc-
tionalto them.Itsterritory hadto pass either toEl Salvador tion", i.e., the direction taken by the present course, not
or to Honduras and the Chamber understandsit to have the hypotheticalold courseof the river. The Chamber also
passed to Honduras. observes that an interpretation of these texasreferring to
-- the old courseof the river is untenable in viewof the car-
%eesketch-mapE onpage39; fortheidentificarion lettersand tographic materialof the period, presumably availableto
coordinatesof the variousdefined points,see the operclause the delegates,which pointed ovemhelmingly to the river
of the Judgment,set outabove,and the1:50,000mapsavailable being then in its present and the interns-
forinspectionin theRegistry. tional boundary. Referring to a suggestionby El Salvador that the river Honduras contends,however,that, since the 1980Gen-
Goascorin would have returnedto its old coursehadit not eral Treaty of Peace uses the same terms as article 2,
been prevented from so doing by a wall or dike built by
paragraph2, of the SpecialAgreement,thejurisdiction of
Honduras in 1916,the Chamber does not consider thatthis the Chamber must be limited to the islands in disputeat
allegation, evenif proved, would affect its decision. the time the Treaty was concluded,i.e., Meanguera and
At its mouth in the Bay of La Uni6n the river divides Meangnerita, the Salvadorian claim to El Tigre having
into several branches, separated by islands and islets. been m:adeonlyin 1985.The Chamber, however, observes
Hondurashas indicated thatits claimed boundarypassesto that the question whether a given islandis in dispute is
the north-west of these islands, thus leaving them all in relevant,not tothequestion ofthe existenceofjurisdiction,
Honduranterritory.El Salvador, contendingas it does that but to that of its exercise. Honduras also claims that there
the boundary does not follow the present course of the is noreal dispute overElTigre, which has since 1854been
Goascoran at all,has not expressed a view on whether a recognized by El Salvadoras belonging to Honduras, but
line followingthat course shouldpass north-westor south- that El:Salvadorhasmade a belatedclaimto it asa political
east of the islands or between them. The area at stake is or tacticalmove.The Chamber notes thatfor it to find that
verysmall and theislets involveddo not seem to be inhab- there is no dispute would require it first to determine that
ited or habitable. The Chamber considers,however,that it El Salvador's claimis wholly unfounded, andto do so can
would not completeits task of delimitingthe sixth sector hardly be viewed as anything but the determinationof a
were itto leave unsettled the questionof the choiceof one dispute. The Chamber therefore concludes that it should
of the present mouthsof the Goascorin as the situationof determine whether Hondurasor El Salvador has jurisdic-
the boundary line. Itnotes atthe sametime thatthe material tion over eachof the islands of El Tigre, Meanguera and
Meanguerita.
OF which to found a decisionis scanty. After describing
the position taken by Honduras since negotiations held in Honduras contends thatby virtue of article 26 of the
1972,as well as its position duringthe work of the Joint General Treaty of Peacethe law applicableto the dispute
Frontier Commission and inits submissions,the Chamber is solelythe utipossidetisjuris of 1821,while El Salvador
considers that it may uphold the relevant Honduran sub- maintains that the Chamber hasto apply the modem law
missionsin the terms in which they were presented. onacquisitionofterritoryandlookatthe effectiveexercise
The Chamber's conclusion regarding the sixth disputed or display of State sovereigntyover the islands as well as
sector is as follow^:^ historical titles.
"From thepoint knownasLosAmates ...theboundary TheChamberhas nodoubtthat thedeterminationof sov-
follows the middle of the bed of the river Goascorin ereignty overthe islands must start with theutipossidetis
to the point where it emerges inthe waters of the Bahia juris.In 1821,none of the islands ofthe Gulf, which had
La Unibn,Gulf of Fonseca,passingto the north-westof
the Islas Ramaditas." been under the sovereignty of the Spanish Crown, were
terranullius.Sovereigntyover them couldthereforenotbe
X. Legalsituationof theislands acquirtzdby occupationand the matterwas thus one of the
(paras. 323-368) successionof the newly independent Statesto the islands.
The Chamber will therefore consider whether the appurte-
The major islandsin the Gulf are indicated on sketch- nance in 1821of each disputed islandto one or the other
map G on page 41. El Salvadorasks the Chamber to de- of the various administrative unitsof the Spanishcolonial
clare that it has sovereignty over allthe islands withinthe structurecan be established, regard beinghad not only to
Gulf except Zacate Grande and the Farallones; Honduras legislative and administrative textsof the colonial period,
asks it to declare that only Meanguera and Meanguerita but also to "colonial effectivitks".The Chamber observes
islandsarein disputebetweenthe Parties and that Honduras that in the caseof the islandsthe legal and administrative
has sovereigntyover them. texts are confused and conflicting, and that itis possible
that Spanishcolonial law gaveno clear anddefinite answer
Inthe viewofthe Chamber,the provisionof the Special asto the appurtenanceof someareas.Itthereforeconsiders
Agreementthatitdetermine"lasituacidnjuridica insular" it particularly appropriateto examine the conduct of the
confers upon it jurisdiction in respectof all the islands of new States during the period immediately after 1821.
the Gulf. A judicial determination,however, is only re- Claimsthen made,and the reaction--or lackof reaction-
quired in respect of such islandsas are in dispute between to thernmay throw lighton the contemporaryappreciation
the Parties; this excludes,interalia, the Farallones, which of whatthe situationin 1821had been,or should be taken
are recognizedby both Partiesas belonging toNicaragua. to havebeen.
The Chamber considers that prima faciethe existenceof
a dispute over an island can be deduced from the factof The Chamber notes that El Salvador claims all the
its beingthe subjectof specific and argued claims. Noting islands in the Gulf (except Zacate Grande) on the basis
that El Salvador has pressedits claim to El Tigre island that during the colonial period they were withinthejuris-
with argumentsin support andthat Hondurashasadvanced diction of the township of San Miguel in the colonial
counter-arguments,though withthe object of showing that provirlce of San Salvador, which was in turn within the
there is no dispute over El Tigre, the Chamber considers jurisdiction oftheRealAudienciaof Guatemala.Honduras
that, either since 1985or at least since issuewasjoined in asserts that the islands formed part of the bishopric and
these proceedings, the islands in disputeare El Tigre, provinceof Honduras, thatthe Spanish Crownhad attrib-
Meanguera and Meanguerita. uted Meanguera and Meanguerita to that province and
that ecclesiasticaljurisdictionover the islands appertained
to the parishof Choluteca andthe Guardaniaof Nacaome,
%eesketch-mapF onpage40; fortheidentificationletterasnd assigned to the bishopric of Comayagua. Honduras has
of theJudgment,set outabove,andthein1:50,000mapsavailablee also presentedan array of incidents and events byway of
for inspection intheRegistry. colonial effectivitks. The fact that the ecclesiastical jurisdicrtion has been The Chamberdeals first withEl Tigre, and reviewsthe
relied on as evidence of "colonial effectii~itbs"presents, historicalevents concerningit from 1833 onward. Noting
difficulties, as the presence of the church onthe islands, that Honduras has remainedin effective occupationof the
wlhichwere sparsely populated, was not permanent. island since 1849,the Chamber concludes that the conduct
The Chamber'stask usmade more difficult by thefact of the Partiesin the years .followingthe dissolutionof the
that many of the historical events relied on canbe, and Federal Republicof Central America was consistent with
ha.vebeen, interpreted in differentways and thus used to the assumption that El Tigre appertainedto Honduras.
supportthe argumentsof either Party. Giventhe attachmentofthe Central American Statesto the
principleof utipossidetisjuris, the Chamber considersthat
TheChamber considersit unnecessaryto analysein fur- that contemporary assumptionalso implied belief that
ther detailthe argument!;each Partyadvancesto show that Honduras was entitled to the island by succession from
it acquired sovereigntyloversome or all of the islands by Spain,or, at least, that such successionby Honduras was
thleapplication of the uti possidetis juris principle, the not contradicted by any known colonial title. Although
miaterialavailable beingtoo fragmentaryandambiguousto Hondurashas not formally requested a findingof its sov-
admitof any firm conc1u:sionT. heChambermusttherefore ereignty over El Tigre, the Chamber considers thatit
consider the post-independence conductof the Parties,as shoulddefineitslegal situationbyholding that sovereignty
indicativeof what must have beenthe 1821position.This over El Tigre belongsto Honduras.
milybe supplemented by considerations independeno tfthe
utipossidetisjuris principle, in particular the possiblesig- Regarding Meangueraand Meanguerita, the Chamber
nilkcanceof the conduct:of the Parties as constitutingac- observesthat throughouttheargumentthetwoislandswere
quiescence. The Chamb~za rlso notes that under article 26 treated by both Partiesas constituting a single insular
of the General Treaty of'Peace, it may consider al"lother unity. The smallnessof Meanguerita,its contiguityto the
larger island,and the fact that itis uninhabited allowits
evidence and arguments;of a legal, historical,human or characterizationas a "dependency" of Meanguera. That
other kind, brought beforeit by the Parties and admitted Meangueritais "capable of appropriation" is undoubted:
under internationallaw"'. althoughwithout freshwater it,isnotalow-tideelevationand
The lawof acquisitionof territory, invoked byEl Salva- iscov&d byvegetation. hePartieshavetreated itascapable
dor, is in principle clearly establishedand buttressed by of appropriation,since they claim sovereignty overit.
arbitral and judicial decisions. The difficulty withits ap- The Chamber notes that the initial formal manifestation
plication here is thatit was developed primarilyto deal ofthe dispute occurred in 1854w, henacircular letter made
withthe acquisitionof sovereigntyoverterrtznullius.Both
Parties, however, assert a title of succession from the widely knownEl Salvador's claimto the island. Further-
Spanish Crown,so that the question ariseswhetherthe ex- more, in 1856and 1879El Salvador's official journal car-
ercise or'displayof sovereigntyby the one Party,particu- ried reports,concerning administrativeacts relating to it.
larly whencoupledwith lackof protest by the other, could The Chamberhas seen no recordof reactionsor protest by
indicate the presence of an utipossidetis juris title in the Hondurasover these publications.
The Chamberobservesthat from the late nineteenth cen-
foimer Party, wheretheevidencebasedontitlesorcolonial turythe presenceof El Salvador on Meanguera intensified,
eflectivitis is ambiguous. The Chamber notes that in the still without objectionor protest from Honduras, and that
Minquiers and Ecrehos case in 1953 the Court did not it has received considerable documentary evidence on the
sin~plydisregard the ancienttitles and decideon the basis administrationof Meangueraby El Salvador. Throughout
of more recent displaysof sovereignty. theperiod coveredbythat documentation thereisno record
IInthe view of the Chamber, wherethe relevant admin- of any protest by Honduras, with the exception of one re-
istrative boundary in the colonial periodwas ill-definedor cent event, described later. Furthermor, lSalvadorcalled
its position disputed,the behaviourof the two Statesin the a witness, a Salvadorianresidentof the island,andhis tes-
yeiits following independence mayserve ;IS a guide to timony, not challenged by Hondurass ,howsthat El Salva-
wh~ere the boundary was,,eitherin their shared view,or in dor has exercised Statepower over Meanguera.
the:view actedon by one and acquiesced in by the other.
According to the material before the Chamber,it was
Being uninhabitedor sparsely inhabited,the islandsdid only in January 1991 that the Governmentof Honduras
not arouse any interestor dispute untilthe years nearing made proteststo the Governmentof El Salvador concern-
the:mid-nineteenth century.Whatthen occurred appearsto ing Meanguera, which were rejectedby the latter Govern-
be highly material. The islands were not terra nulliusand ment. The Chamber considers that the Honduran protest
in legal theory each island already appertained to one of was made too lateto affect the presumption of acquies-
theGulf Statesasheirtotheappropriate partofthe Spanish cence on the part of Honduras.The conduct of Honduras
colonial possession, which precluded acquisition by occu- vis-a-vis earliereffectivitbsreveals some formoftacit con-
pation; but effectivepost;essionby one of the Statesof an sent to the situation.
islandcouldconstitute a post-colonial effectivitb,throwing The Chamber's conclusionis thus the following.In re-
liglhton the contempora~ry appreciationof the legal situ- lationto the islands,the "documents which were issued by
ation. Possession backed by the exerciseof sovereignty the Spanish Crown or by any other Spanish authority,
may confirm the uti possidetis juris title. The Chamber whether secularor ecclesiastical",do not appear sufficient
does not find it necessaryto decide whether such posses- to "indicatethejurisdictionsor limitsof territoriesor settle-

sion could be recognizecleven in contradictionof such a ments" interms ofarticle26 ofthat Treaty,sothat no firm
title, but in the case of Itheislands, where :thehistorical conclusion can be baseduponsuch material, taken inisola-
materialof colonialtimesis confused and contradictory and tion, fordecidingbetweenthetwoclaimsto anutipossidetis
independencewasnot immediatelyfollowedbyunambigu- juristitle. Underthe final sentenceofarticle26,the Cham-
ous;acts of sovereignty,this is practicallythe only wayin beris, however, entitledto consider boththe effective inter-
whichthe utipossidetisjrtris could findformillexpression. pretation of the uti possidetis juris by the Parties,in theyears following independence, as throwing light on the corpus of disputes. In the Chamber's view, however, in
application of the principle, and the evidenceof effective interpreting a text of this kind, regard must be had to the
possession and control of an island by one Party without common intention as it is expressed. In effect, what Hon-
protest by the other as pointing to acquiescence. The evi- duras is proposing is recourse to the "circumstances" of

dence as to possession and control, and the display and the conclusion of the Special Agreement, which constitute
exercise of sovereignty, by Honduras overEl Tigre and by no more than a supplementary meansof interpretation.
El Salvador over Meanguera (to which Meanguerita is an To explain the absence of any specific reference to de-
appendage), coupled in each case with the attitude of the limitation in the Special Agreement, Honduras pointsto a
otherpart~~clearl~ showsthatHonduraswastreatedas provisionintheConstitutionofElSalvadorsuchthatits
having succeeded to Spanish sovereignty over El Tigre, representatives could never have intended to signa special
and El Salvador to Spanish sovereignty over Meanguera zgreement contemplating any delimitationof the waters of
and Meanguerita. the Gulf: Honduras contendsthat it was for this reasonthat
the expression "determine the legalsituation" was chosen,
XI. Legal situation of the maritime spaces intendeclas a neutral term which would not prejudicethe
(paras. 369-420) positionof eitherParty.TheChamberisunableto acceptthis
contention, which amountsto a recognition that the Parties
The chamber first recalls that Nicaragua had been
authorized to intervene in the proceedings, but solely on diction to delimit the waters of the Gulf. It concludes that
the question of the legal regime of the waters of the Gulf the agreement between the Parties, expressedin article 2,
of F ~ ~ ~ ~R ~e~er.ring to by the Parties that paragraph 2, the 'pecial Agreement, that the Chamber
Nicaragua had dealt with matters beyond the limits of its should determinethe legal situationof the maritime spaces
permitted intervention, the chamber observes that it has
taken account of Nicaragua's arguments only where they did extend to their
appear relevant in its consideration of the regime of the Relying on the fact that the expression "determine the
waters of the Gulf of Fonseca. legal situation of the island and the maritime spaces" is
~h~ Chamber then refen to the disagreement between also ust:d in article 18 of the General Treaty of Peace of
the Partiesonwhether article 2, paragraph 2, ofthe Special 1980, defining the role of the Joint Frontier Commission,
Agreement empowers or requires the Chamber to delimit Honduras invokes the subsequent practiceof the Parties in
a maritime boundary, within or without the ~~lf. ~1Sal- the application of the Treaty and invites the Chamber to
vador maintains that &"the chamber has nojurisdiction to take intoaccountthe fact thattheJoint FrontierCommission
effect any delimitation of the maritime spacesu, whereas examinedproposalsaimedatsuchdelimitation.TheChamber
Honduras seeks the delimitation of the maritime boundary considers that, while both customary lawand the ~ienna
inside and outside the Gulf. The Chamber notes that these Convention on the Law of Treaties (art. 3l3 Para. 3 (b))
allow such practice to be taken into account for Purposes
the Parties as to the legal statusof the Gulf waters: El Sal-
Honduras canprevail over the absence from the textof any
vador claims that they are subject to a condominium in specific:reference to delimitation.
favour of the three coastal States and that delimitation
wouldthereforebe inappropriate,whereas Hondurasargues The Chamber then turns to the legal situation of the
that withinthe Gulfthere is acommunityof interestswhich watersoftheGulf,whichfallsto be determinedbytheappli-
necessitates ajudicial delimitation. cation of "the rules of internationallawapplicable between
In applicationof the normal rules of treaty interpretation the Parties,including, where pertinent, the provisionof the
(article31ofthe ViennaConvention ontheLawofTreaties), General Treaty of Peace", as provided in articles 2 and 5
the Chamber first considers what is the "ordinary mean- of the ZjpecialAgreement.
ing" of the terms of the Special Agreement. It concludes Following a description of the geographical charac-
that no indication of a common intention to obtain a de- teristics the ~~lf, the coastline of which is divided
limitation from the Chamber can be derived fromthe text between~1Salvador,HondurasandNicaragua (see sketch-
as it stands. Turningto the context, the Chamberobserves
that the Special Agreement used the wording "to delimit map G onpage41), andthe conditionsofnavigation within
the boundary line" regardingthe land frontier, while con- it, the (zhamberpoints out that the dimensions and propor-
fining the task of the Chamber as it relates to the islands tionsofthe ~~lfaresuchthat itwouldnowadaysbe ajuridi-
and maritime spacesto "determine [their] legal situation", cal bay under the provisions (which might be found to
the same contrast of wording being observed in article 18, express general customary law) of the Convention on the
Territorial Sea and the Contiguous Zone (1958) and the
paragraph 2, of the General Treaty of Peace. Noting that Convention onthe Lawof the Sea (1982),the consequence
Honduras itself recognizes that the island disputeis not a beingthat, ifit werea single-Statebay, aclosinglinemight
conflict of delimitation but of attribution of sovereignty now be drawn and the waters be thereby enclosed and
over a detached territory, the Chamber observes thatit is "considered as internal waters". The Parties and the inter-
difficultto accept that the wording "to determine the legal vening State, as well as commentators generally, are
situation", used for both the islands and the maritime agreed that the Gulf is an historic bay, and that its waters
spaces,would have a completelydifferentmeaningregard- are accordingly historic waters. Such waters were defined
ing the islands and regarding maritime spaces. in the Fisheries case between the United Kingdom and
Invokingthe principle of effectiveness, Hondurasargues Norway as "waters which are treatedas internal watersbut
that the context of the Treaty and the Special Agreement which would not have that character were it not for the
militate againstthe Parties having intended merelya deter- existenceof an historic title" (I.C.J. Reports 1951,p. 130).
mination of the legal situation of the spaces unaccompa- This should be read in the light of the observation in the
nied by delimitation,the object and purposeof the Special Continental Shelf (Tunisia/LibyanArab Jamahiriya) case
Agreement beingto dispose completelyof a long-standing that

30 "general internationallaw. ..doesnotprovideforasingle The Chamber observes thatthe rules and principles nor-
'rkgime'for 'historic waters'or 'historicbays',but only mally applicableto single-State bays are not necessarily
for a particular rkgimefor each of the concrete, recog- appropriateto a bay whichis a pluriatate bay and also an
Reports 1982,p. 74).ic waters'or 'historic bays'"(I.C.J. historicone.Moreover,thereis a needforshippingto have
access to any of the three coastalStatesthrough the main
TheCourt concludes thatit is clearly necessaryto inves- channels between the bay and the ocean. Rights of inno-
tigate the particular historyof the Gulf to discover the cent passage are not inconsistent with a regime of historic
"rkgime" resulting therefrom, adding thatthe particular waters. There is, furthermore,the practical point thatsince
hisl:oricalregime establishedbypractice must be especially these waters wereoutside the 3-mile maritime beltof ex-
important in a pluri-State bay, a kind fay fc~r hichthere clusive jurisdictionin which innocent passage was never-
are notoriouslyno agreedand codified generalrulesof the theless recognized in practice, it would have been absurd
kinadso well establishedl'orsingle-Statebays. not to recognize passage rightsinthese waters, whichhave
siinceits discovery in 1522 until 1821, the (-julfwas a to be crossed in orderto reach those maritimebelts.
single-State bay the watersof which wereunderthe single All three coastal States continueto claim that theGulf
swalyof the Spanish Crown.The rights inthe Gulf of the is an historic bay with the character of a closed seaa,nd it
present coastal States werethus acquired, like their land seems also to continue to be the subject of that"acquies-
territories, by succession from Spain.The Chamber must cence on the part of other nations" to which the 1917
therefore enquireinto the legal situation of.thewaters of judgement refers; moreover, that position has been gener-
the Gulf in 1821, for the principle of utipossidetisjuris ally acceptedby commentators.Theproblem is the precise
should applyto those waters as well as to the land. characterof the sovereignty the three coastal States enjoy
in these historic waters. Recallingthe former view thatin
ThelegalstatusoftheCiulfwaters 1821wasa ques- a pluri-state bay, if it is not historicwaters, the territorial
tionlwhich facedthe Cenl:ralAmericancourt of justice in Seafollows the Sinuositiesof the Coastand the remainder
the case between ~1 Sal\radorand Nicaragua ofthewatersofthe bayarepa* ofthe highseas,the Cham-
the Gulf in which it renderedits judgement,of 9 March ber notes thatthis Solutionis not possibleinthe caseofthe
1917. Thatjudgement, which examinedthe particularre- Gulf of FonsecaSinceit is an historicbay and therefore a
gim,eof the ~~lfof Fonsc:ca,must therefore be taken into bbclosed sea".
consideration as an important part of the Gulfs history.
The case before the Central American Court was brought The Chamber then quotesthe holding by the Central
by El Salvador against Nicaragua because of the latter's American Court that " ... the legalstatus of the Gulf of
entry into the Bryan-Cha~morro Treaty of 1914 with the Fonseca ...is that ofproperty belongingto the three coun-
United States, by which Nicaragua granted the latter a con- tries that surroundit... " and that " .. .the high parties
cessionforthe constructiclnof an interoceanic canalandof are ,agreedthat the waters which form the entranceto the
anaval base in the Gulf, an arrangement that would alleg- Gulf intermingle ...". In addition,thejudgement recog-
edly prejudice El Salvador'sown rights in the Gulf. nized that maritime beltsof 1marine league from the coast
On the underlyingquestionofthe statusof thewatersof were withinthe exclusive jurisdictionof the coastal State
the Gulf there were threematters which pra~:ticeand the and therefore should"be excepted fromthe communityof
1917judgement took accountof: first, the practice of all interests or ownership". After quoting the paragraphs of
three coastal States had established and mutually recog- the Judgement setting forth the court's general conclu-
nize:da 1-marine-league(13-na~tical-~il~l)ittoralmaritime sions,the Chamber observes that the essenceofitsdecision
belt off their respective ,mainlandcoasts and islands, in on the legal Statusof the waters of the Gulf was that these
whi,chbelt they each exercised an exclusive!jurisdiction historic waters werethen subject to a "CO-ownership"
and sovereignty, though with rights of innocent passage (condominio)of the three coastal States-
concededon a mutualbasiis;second,all three Statesrecog- The Chamber notes thatEl Salvador approves strongly
nized a furtherbelt of 3 marine leagues(9 nautical miles) of the condominium concept,and holds thatthis statusnot
forrightsof "maritime inspection"for fiscal purposes and only prevails but also cannot be changedwithout its con-
for national security; thilrd,there was an Agreement of sent. Honduras opposes the condominium idea andaccord-
1900betweenkIondurasand Nicaraguaby which a partial ingly calls in question the correctnessof this part of the
maritime boundary between thetwo Stateshaclbeen delim- 1917judgement, whilst also relyingon the factthat it was
ited, which, however, stoppedwell short of the watersof
the mainentranceto the Bay. cision.Nicaragua is, and has consistentlybeen,opposedtoe-
the condominium solution.
Furthermore, theCentrialAmerican Courtlunanimously
heldthat the Gulf"is anhistoric bay possessed ofthe char- Honduras also argues against the condominium onthe
acteristics of a closed Sea''and that" . .. the parties are ground that condominiacan only be establishedby agree-
agreedthat the Gulf is a c!losedse... "; by '.'closedsea" ment. ~tis doubtlessright in claimingthat condominia,in
the Court Seemsto mean simply that it is not Part of the the sense of arrangementsfor the common governmentof
high seas and its Waters.arenot international waters. At territory, have ordinarilybeen createdby treaty. ~~t what
anotherpoint thejudgement describes theGulf as "an his- the Central Americancourt had in mind was a joint sov-
toric or vital bay". ereignty arising as a juridical consequence of the 1821
The Chamber then points out that the tern1"territorial succession. State successionis one of the ways in which
waters" used in the judgement did not then necessarily temtorial sovereignty passes fromone Stateto anotherand
indicate what would now be called "temtorialsea"; and there seems no reason in principle why a succession should
explains what might appearto be an inconsistencyin the not create ajoint sovereignty where a single and undivided
judgement concerning rightsof "innocent use", which are maritime area passesto two or more new States. The
at oddswith the present generalunderstanding:of the legal Chamber thussees the 1917judgementas using the term
statusofthewatersofabayasconstituting "internalwaters". condominiumto describewhatit regardsas thejoint inheri-

31tance by three States of waters whichhad belonged to a rights and the "exclusion of any preferentialprivilege".
single State andin which there were no maritime adminis- The essential featureof the "community of interests" ex-
trative boundaries in 1821or indeed at the endof the Fed- isting, accordingto Honduras, in respectof the watersof
era1Republicof Central America in 1839. the Gulf, and which distinguishes it from thecondominio
Thus, theratio decidendiofthejudgement appearsto be referred to the Central kherican Court or the condo-
that there was, atthe timeof independence,nodelimitation minium assertedby El Salvador,isthat the "communityof
between the three countries; and the waters of the eulf interests" does not merely permit of a delimitation but
have remained undivided and ina state of community necessitates it.
whichentailsacondominiumorco-ownership. Further,the El Salvador forits part is not suggesting that the waters
existenceof a community was evidenced by continued and subject:to joint sovereignty cannotbe divided, if thereis
peaceful useof the waters by all the riparian Statesafter agreerr~entto do so. What it maintainsis that a decision on

independence. the status of the waters is an essential prerequisiteto the
As regardsthe status of the 91 judgement, the Cham- process of delimitation. Moreover,the geographical situ-
ber observes that although the Court's jurisdiction was ation of the Gulf is such that mere delimitation without
contested by Nicaragua, which also protested the judge- agreement On questions passageandaccess leave
ment, it is nevertheless a valid decision of a competent many practicalproblems
court. Honduras, which, on learning of the proceedings TheChambernotesthatthe r~ormalgeographicalclosing
before the Court, formally protestedto El Salvadorthat it line ofthe bay would be the line Punts Amapalato Punts
did not recognizethe status of co-ownershipin the waters Cosigikina;it rejects a thesis elaboratedby El Salvadorof
of the Gulf, has,in the present case, reliedon the principle an ''innergulf' and an "outer gulf 'based on a reference
that a decisionin ajudgment or an arbitralawardcan only in the 1917judgementto an inner closing line, there being
nothing in that judgement to SuPPortthe suggestionthat
be opposedto the parties. Nicaragua,a party to the 1917 Honduran legal interests in theGulfwaters were limitedto
case, is an intervenerbut not a party in the present one. ~t the area inside the inner line. Recalling that there had been
therefore does not appear that the Chamberis required to considerable argument betweenthe Parties about whether
pronounceupon the question whetherthe 1917judgement
is resjudicata betweenthe Statespartiesto it, only one of the clo,singline of the Gulf is also a baseline, the Chamber
which is a Party to the present proceedings, a question acceptsthe definitionof it as the ocean limitof the Gulf,
whichis nothelpfulin a caseraisinga questionof thejoint which, however, must be thebaselinefor whatever regime
ownershipofthree coastalStates.TheChambermust.make lies beyond it, which must be different from thatof the
up its own mind on the status of the waters of the Gulf, Gulf.
taking such account of the 1917 decisionas it appears to As to the legalstatus of the waters inside the Gulf clos-
the Chamber tomerit.. ing lineother than the 3-mile maritime belts, the Chamber
~h~opinionofthe chamber ontheregimeofthe historic considers whetherornot theyare "internal waters"; noting
waters of the Gulf parallelsthe opinion expressed in the that rights of passage through them must be availableto
vessels of third States seeking access to a port in any of
1917judgement. The Chamber finds that, reserving the thethree coastal States, itobservesthat it might be sensible
questionofthe 1900~ ~ ~ d ~ ~ ~ d~ eli~ititi~n,the~ ~ to regard those waters, inSO far as they are the subjectof
Gulf waters, other than the 3-rnile belt, are his- the condominiumor co-ownership,as sui generis.The es-
toric waters and subject to ajoint sovereigntyof the three sentialjuridical statusofthese waters is, however,the same
coastalstates, basing itselfonthe followingreasons. to as that of internal waters, since they are claimea titre de
the historiccharacterof the eulf waters,there are the con-
sistent claimsofthe three coastal States andthe absenceof and are not sea-
protest fromother States. As to the characterof rights in With regardto the 1900Honduranmicaraguandelimita-
the waters of the Gulf, these were watersof a single State tion line, the Chamber finds, from the conductof El Sal-
bay duringthe greaterpart oftheirknownhistoryandwere vador, that the existence of the delimitation has been ac-
not divided or apportionedbetween the differentadminis- cepted byit in the terns indicatedin the 1917judgement.
trative units which becamethe three coastal States. There In connection with any delimitationof the watersof the
was no attemptto divide and delimit the waters according Gulf, the Chamberfinds that the existenceofjoint saver-
to the principleof utipossidetis juris, this being a funda- eignty in all the waters subject to a condominiumother
mental difference betweenthe land areas andthe maritime than those subjectto the treaty or customarydelimitations
area. The delimitation effected between Nicaraguaand
Honduras in 1900, which was substantially an application means that Hondurashas existing legal rights (not merely
an interest) in the Gulf waters up to the bay closing line,
of the methodof equidistance,gives no clue that it wasin subject, of course, to the equivalent rights ofEl Salvador
any way inspired bythe application of the utipossidetis and Nicaragua.
juris. Ajoint successionof the three Statesto the maritime ~ ~ ~ ~ ~ dthi q~estion of the waters outside the eulf,
area thereforeseemsto be the logical outcomeof the prin- the chamber observes that it involves entirely new con-
ciple of utipossidetis juris itself. cepts oflaw unthoughtof in 1917,in particular continental
The Chamber cotes that Honduras, whilst arguing shelandthe exclusive economic zone. There is alsoaprior
against the condominium,does not consider it suficient question about territorial sea.Thelittoral maritime beltsof
simplyto reject it, but proposes an alternative idea, thatof 1 marine league alongthe coastlines of the Gulf are not
"community of interests" or of "interest". That there isa truly territorial seas inthe sense of the modem law of the

community of interests of the three coastal Statesof the sea, for a territorial sea normallyhas beyond it the conti-
Gulf is not open to doubt, but it seems oddto postulate nental shelf, andeither watersofthe high seasor an exclu-
sucha communityas an argument againsta condominium, sive economic zoneand the maritime belts withinthe Gulf
whichis almostan ideal embodimentof the communityof do not have outside themany of these areas.Themaritime
interest requirementsof equality of user, common legal beltsmayproperlybe regardedasthe internal watersofthe
32coastal State, even though subject, as indeed are all the or be replaced by a division and delimitation into three
waters of the Gulf, to rights of innocent passage. separate zones is, as inside the Gulf also, a matter for the
The Chambertherefora:findsthat there is aterritorial sea three States to decide. Any such delimitation of maritime
prclperseawards of the closing line of the Gulf and, since areas will fall to be effected by agreement on the basisof
there is a condominium of the waters of the Gulf, there is international law.
a tripartite presence at the closing line andlHonduras is
not locked out from rights in respectof the ocean waters XII. EffectofJudgmentforthe interveningState
outside the bay. It is only seawardof the clctsingline that (paras. 421-424)
modern territorial seas citnexist, since otherwise the Gulf
waters could not be waters of an historic bay, which the Turning to the question of the effect of its Judgmentfor
Palties and the interverdng State agree to be the legal the intervening State, the Chamber observes that theterns
position. And if the waters internal to thatbay are subject in which intervention was granted were that Nicaragua
to a threefoldjoint sovereignty,it isthe threecoastal States would not become party to the proceedings. Accordingly,
the binding force of the Judgment for the Parties, as con-
that are entitled to territorial sea outside the bay. templated by Article 59 of the Statute of the Court, does
14sforthe legal regime of the waters, seabed and subsoil not extend to Nicaragua as intervener.
off the closing line ofthe Gulf, the Chamber first observes In its Application forpermissionto intervene, Nicaragua
that the problem must be confined to the area off the base- had stated that it "intends to subject itself to the binding
line but excluding a 3-mile, or 1-marine-league, stripof it effect of the decision", but from the written statement sub-
at either extremity, corresponding tothe existing maritime mitted byNicaragua it is clearthat Nicaragua doesnot now
belts of El Salvador and Nicaragua, respeci:ively.At the
time of the Central Ame~icanCourt's decisi.onthe waters regard itself as obligated to treat the Judgment as binding
outsidethe remainderof the baselinewere high seas.Never- upon it. With regard to the effect, if any, ofthe statement
theless, the modem law of the sea has added territorial sea in Nicaragua's Application, the Chamber notes that its
extending from the baseline, has recognized continental Judgment of 13 September 1990 emphasizedthe need, if
shelf as extending beyond the territorial seaa.ndbelonging an intervener is to become a party, for the consent of the
ipsajure to the coastal State, and confers a,right on the existing partiesto the case; it observes that if an intervener
coastal Stateto claim an exclusive economic zone extend- becomes a party, and is thus bound by the judgment, it
becomes entitled equallyto assert the binding force of the
ing up to 200 miles from the baselineof the temtorial sea. judgment against the other parties. Noting that neither
Sincethelegal situationonthelandwardsideoftheclosing Party has given any indication of consent to Nicaragua's
line:is one of joint sovereignty, it follows that all three of being recognized to have anystatus enabling it to rely on
the joint sovereigns must be entitled outside the closing the Judgment, the Chamber concludes thatin the circum-
line to territorial sea, continental shelfand exclusive eco- stances of the case the Judgment is not res judicata for
nomic zone. Whetherthis situation should remain in being Nicaragua. HONDURAS

El Salvador/Honduras Frontier FirstSector- Disputed Area
-.----- Agreedboundary

---------- E l---v-dor-claimedboundary
---.-- Honduras-claimed boundary

L -
8g015'W 89"lO' 89'05 W
L
1
N 14*2N3
. f..,.,
./*.......

.-
.a-

SKETCH-MAP

- ---. .econd SecAgreed boundaryrea

..............Salvador-claimboundary
1 - ------, Judgment boundaryundary

0 - 5 KM 14e20' End-pointof
0 disputedsector

m. 89010' 89'05' Declaratio~rof Vice-presidentOda With regard to the variousother points (concerningthe
On the subject Nicaragua's Judge Oda, land,the .islandsandthe waters within theGulf),the author
in an appended declaration, disputesthe Chamber's find- ofthe opinionconcursfully withthe viewsofthe Chamber.
ings as to its Judgment's lackof binding effect upon the
intervening State. Though nota party to the case, Nicara- Separate opinionofJudge ad hoc TorresBerndrdez
gua will in his view certainly be bound by the Judgmentin
so far as it relates to the legal situation of the maritime in his separate opinion, Judge Torres Bernirdez gives
spaces of the Gulf, and he refers in that connection to his the reasonsfor his overall concurrencewith the Judgment
views on the general subject of the effects of Judgments of the Chamberand for his havingvoted forall its operative
part, the eTception of the decisions concerning the
on intervening States as expressed in two previous cases. amibution of sovereignty over the island of Meanguenta
Judge Oda Statesthat, by his declaration, he does not, and the interpretation of article 2, paragraph 2, of the
however, intendto lend his accord to the Chamber's find- SpecialAgreement.Following an introduction underlining
ings on the maritime spaces dispute,the subject of his dis- the unity of the case as well as its fundamental, although
senting opinion. not exclidve, State succession character, the considera-
tions, observationsand reservations contained inthe opinion
Separate opinionofJudgead hoc Valticos are presented under the main headings of the three major
aspects of the case, namely, the "land boundary dispute",
The scope of the uti possidetis JuriS principle and the the "island dispute" and the "maritime dispute".
effectivitks
Judge Torres Bernirdez stresses the importance of the
The application of the utipossidetisjuris principle has ,ti ponidetis juris principle as the fundamental norm ap-
given rise to difficulties inasmuch as the rights involved plicable to the case, examining in this connectionthe con-
could date back several centuries andit has not been easy tents,object and purpose of the utipossidetisjuris as cus-
to determine those that were relevant in determining the tomarily'understood by the Spanish-American republics,
boundaries in question. According to the opinion summa- and the relationship between that principle and the effec-
rized, in view of the conditions in which and the reasons tivitks invoked in the case, as well as the question of the
for which they were granted, the issueof titulos ejidales proof of.the utipossidetis juris principle, the evidentiary
could not be disregarded for purposes of delimiting the value of'the tjtulos ejidales submitted by the Parties in-
boundaries. cluded. Judge Torres Bernirdez approves the Chamber's
Furthermore, the role givento the effectivitkshas been general concentration on applying the utipossidetisjuris
insufficient. principle in the light of the fundamental State succession
character of the case and the fact that both Parties are.
ln any event, the care the chamber has taken to resolve Spanish-American republics. However, article 5 of the
the difficulties it has met is worthy of praise. Special Agreement does not exclude the application,
Tepangiiisirsector. While in various respects theauthor
of the opinion concurs with the views of the Chamber, whereverpertinent, of other rulesof international law also
he that the boundary drawn to the wen of bindingthe Parties.Theprincipleof including any
Talquezalar should haverun in a north-westerly dimtion, consent implied by the conduct of the Parties subsequent
towardsthe Cerro Oscum, beforeonceagainturning down- to the criticaldate of 82 is for Judge Torres
ward (in a south-westerly direction towards the tripointof one of those of international law which also applied
Montecristo). in the case in various ways (element of confirmation or
interpretation of the 1821 uti possidetis juris; estab-
Sazala~a-Arcataosector- The Chamber based itself on lishment ofeffectivitdsalleged; determinationof situations
various questionable titles,as a resultf which it cut back uacquiescence" or "recognitionw).
El Salvador's claims excessively, particularly with regard Regarding the land boundary dispute, Judge Torres
to two protrusions to the north-west and the north-eastof Bernirdez considers the overall results of the application
the area in question, as well as in the central part, at the
level of the so-called Gualcimaca title. by the Chamber of the law described to the six sectors in
Na@aterique sector' The the dis- evidenceto be as a wby the Parties; subjectto a fewspecific
agrees withthe line drawn the Chamber'long
the river Negro-Quiagara. He sets forth his reasons for reservations, the frontier lines defined for each of those
prefering the Cerro La Ardilla line. secton by the Judgment are dejure lines by vime either
of the 1821 utipossidetis juris or of the consent derived
Dolores sector. The 1760 title concerning Poloros from conduct of the Parties, orof both. His specific reser-
should take precedence in this regard and the boundary vations concern the line between Talquezalar and Piedra
Shouldrun to the north of the river Torola. The difficulty Menuda in the first sector (the question of the Tepangiiisir
is due to the distances and the area mentioned in the title. boundary marker and corresponding indentation), the line
The Chamber has therefore decided to grant El Salvador, betweenLasLagunetasorPortillodeLasLagunetasand Poza
in this area, a quadrilateral considerably smaller than what delCajbn inthethird sector(the Gualcuquinor ~1Amati!lo
that State claimed. But this solution has involved a ques- river line) and the Las Caijas river line of the frontier in
tionable change in the names of the summits and rivers the fourth sector, particularlythe segment of that line run-
concerned. ning from the Torola lands down to the Moj6n of Cham-
Themaritimespaces. Despite the serious objections to pate. JutdgeTorres Bernirdez voted, however, in favourof
which they are open, the authorof the opinion feels that the frontier lines defined by the Judgment for the six see-
the arguments endorsedby the majority of the Chamber are tors, out of the conviction that those lines are"as a whole"
acceptable, regard being hadto the special characterofthe dejure lines as requested by the Parties in article 5 of the
Gulf of Fonsecaas a historic bay with three coastal States. Special Agreement.

42 So far as the island dispute is concernecl,Judge Torres well as the Republic of El Salvador and the Republic of
Bernirdez upholds the submission of the Republic of How Nicaragua, to a territorial sea, continental shelf and exclu-
durasthat MeangueraandMeangueritawere he onlyislands sive economic zone in the open waters of the Pacific Ocean
indispute asbetween the Parties atthe curre:ntproceedings, seaward of the central portion of the closing line of the
He dissociates himself, therefore, from the finding of the: Gulf of Fonscca as that line is dcfined in the Judgment,
majority that El Tigre was also an island iniiispute,as wel!. delimitation of those maritime spaces outside the Gulf of
as from the reasoning of the Judgment as to the definitiorl Fonseca having to be effected by agreement on the basis
of'theislands indispute:both the finding andthe reasoning; of international law. Thus, the rights of the Republic of
in question are contrary to the stability of international Honduras as a -State participating on a basis of pcrfect
relations and do not correspond to basic teiiets of interna-. equality with the other two States of the Gulf in the "par-
tional judicial law. A non-existing dispute objection for- ticularr6gime" of the Gulf of Fonseca, as well as the status
mally submitted by a party has an autonorny of its own, of the Republic of Honduras asa Pacific coastal State,havc
should be determined a:;a preliminary matter on the basis been fully recognized by the Judgment, which dismisses
of the objective grounds provided by the case file as a. some arguments advanced at the current proceedings
whole and should not be disposed of by subsuming it into aimed at occluding Honduras at the back of the Gulf.
the different matters ofthe existence ofjurisdiction and its.
exercise. Judge Torres Eiernardezstresses his view that, as to the -particular r6gime~ of the ~~lfof F ~ ~ ~ ~ ~ ~ ,
~~d~~T~~~~~ ~ ~ i ~ dun ~derlines, in his opinion, that the
a consequence of the approach followed b:/ the majority, ~~lf~f Fonseca is a "historic baywto which the Republic
the ~ud~mentconcludes by stating the obvious, namely, of Honduras, the Republic of El Salvador and the Republic
that the island of El Tigre is part of the sovereign territory of ~i~~~~~~~succeeded in 1821 on the occasion of their
of'the Republic of Hontiuras. Honduras had not requested separationfrom spain and their constitution as independent
the Chamber to pronoue~ceany such "confilmation" of its sovereign nations. l-he uhistoric- status of the waters of
sovereignty of El Tigre, a sovereignty Which was not the Gulf of Fonseca was there when the "successorial
subject to adjudication, because it had beell decided over took place. l-his means, in the opinion of ~~d~~
170years ago by the 1821 utipossidetis jtrris as well as T~~~~ ~~~i~d~~ th,at the sovereign rights of each and
by the recognition of the:Republic of El Salvadorandthird every one of the three republics in the waters of ~~lf
Powers over 140years ago. cannot be subject to question by any foreign Powcr. But at
the moment when the succession occurred the predecessor
to the islands he considers to be in dispute, State had not-administratively speaking--divided the
namely, M~~~~~~~~and ~ ~ ~ ~ ~ ~ ~ ~~~d~i~~T~~~,~~ waters of the historic bay of Fonsecabetween the territorial
~ ~ ~ i ~ dco~ncurs with the other members ofthe chamber jurisdictions of the colonial provinces, or units thereof,
in the finding that the island of M~~~~~~~i~ s today part of'
th,: sovereign territory of the Republic of El Salvador. The in 1821 One Or the
path whereby Judge Torres Bernardez reaches this conclu- three Statesof the Gulf.Thus, Judge Torres ~ernirdez con-
differs, however, fr.omthe one followed in the ~~d~- cludes that the Judgment is quite right indeclaring that the
merit, his opinion, the island of M~~~~~,:~ as ,well as historic waters of the Gulf which had not been divided by
the island of Meanguerita, belonged in 1821to the Repub- Honduras, El Salvador and Nicaragua subsequent to 1821
lit of ~~~d~~~~by virtue of the utipossidetisjuris princi- continued to be held in sovereignty by the three republics
ple. He considers, therefore, that the inconc.lusivefinding joint1y9pending their
of the Chmber in this respect is not supported by the In this connection, Judge Torres Bernirdez emphasizes
colonial titles and effectivitks documented by the Parties. that the ''joint sovereignty7'status of the undivided ''his-
He finds, however, that the 1821utipossidetis juris rights toric waters" of the Gulf of Fonseca has, therefore, a "sue-
of Honduras in Meangu.erawere at a certain moment in cessorial origin" as stated in the Judgment. It is a ''joint
time (well after the dispute arose in 1854:)displaced or
eroded in favour of El Salvador as a result of the State sovereignty", pending delimitation, which rcsults fromthe
eflectivitks established by the latter in and with respect to operation of the principles and rules of international law
the island and of the related past conduct o:fthe Republic governing succession to territory, the "historic waters" of
the Gulf of Fonsecaentailing,like any other historicwaters,
of Honduras at the relevant time vis-a-vis such effectivitks ''territorial rights". Judge Torres Bernirdez also stresses
and their gradual development. On the other hand, simi- that the present Judgmentlimits itself to declaringthe legal
lar State effectivitis on the part of El Salvador and related situation of the waters of the Gulf of Fonseca resulting
past conduct of Honduras being absent in the case of from the above and subsequent related developments, i.e.,
M~:anguerita,Judge Torres Bernirdez concludes that the to declaring the existing "particular rkgime" of the Gulf
1821 utipossidetis jut-is must needs prevail in the case of of Fonseca as a "historic bay'' in terms of contemporary
that island. This means that today, as in 1821,sovereignty international law, but without adding elements of any kind
over Meanguerita belongs to the Republic of Honduras. to that "particular r&gime"as it exists atpresent. The Judg-
Judge Torres Bernirdez iiegretsthat the Judgment failed to ment is not therefore a piece of judicial legislation and
treat the question of sovereignty over Mearlgueritaon its should not be read that way at all. Nor is it a Judgment on
own merits, and, having regard to the circumstances of the the interpretation and/or application of the 1917judgement
case, he rejects the applicabilityo Meangueritaof the con- of the Central American Court of Justice. Conversely, that
cept of "proximity" aswell asthe thesis of i?sconstituting 1917judgement is not an element for the interpretation or
an "appendage" of Meanguera. application of the present Judgment, which stands on its
own feet.
.JudgeTorres Bernirdez endorses in toto the reasoning
anti conclusions of the Judgment concerninl; the substan- By declaring the "particular rCgime" of the historic bay
tive aspects of the"maritimedispute" with respect to both of Fonseca in terms of the international law in force, and
the:"particular rtgime" of the Gulf of Fonseca and its not of the international law in force in 1917or earlier, the
waters and the entitlemeritof the Republic of'Honduras,as Chamber, according to Judge Torres Bernirdez, has clari-

43fíed a number of legal issues such as the "internal" char- In the contemporary law of the sea, Judge Oda ex-
acter of the waters within the Gulf, the meaning of the plains, waters adjacent to coasts have to be either "internal
1-marine-league belt of exclusive jurisdiction over them, waters"—the case of (legal) "bays" or of "historic bays"
the "baseline" character of the "closing line" of the Gulf, counting as such—or territorial waters: there is no third pos-
and the identification of those States which participate as sibility (excepting the new concept of archipelagic waters,
equal partners in the "joint sovereignty" over the undi- not applicable in the instant case). But the Chamber has
vided waters of the Gulf. The individual elements now obscured the issue by employing vocabulary extraneous to
the past and present law of the sea. Its assessment of the
composing the "particular régime" of the Gulf of Fonseca
declared by the Judgment vary, however, in nature. Some legal status of the maritime spaces thus finds no warrant in
result from the succession, others from subsequent agree- that lav/.
ment or concurrent conduct (implied consent) of the three Judge Oda supports his position with a detailed analysis
nations of the Gulf as independent States. In this respect of the development since 1894 of the definition and status
Judge Torres Bernárdez refers to the "maritime belt" of of a "bay" in international law, from the early work of the
exclusive sovereignty or jurisdiction—considered by the Institut de droit international and International Law Asso-
Judgment as forming part of the "particular régime" of ciation, to the most recent United Nations Conference on
Fonseca—as one of those elements of the "particular the Law of the Sea, passing through arbitral case-law and
régime" which possess a "consensual" origin, pointing out the opinions of authoritative writers and rapporteurs.
that the scope of the States' present consent to the "mari-
time belt" had not been pleaded before the Chamber. It Judge Oda lists five reasons why full weight should not
follows, in his view, that any problems which might arise have been given to the conclusions of the Central Ameri-
concerning entitlement to, delimitation of, location, etc., of can Court of Justice in 1917 to the effect that the waters of
"maritime belts" are matters to be solved by agreement the Gulf were subject to a condominium, created by joint
among the States of the Gulf. inheritance of an area which had constituted a unity pre-
vious to the 1821 succession, except for a 3-mile coastal
As to the competence of the Chamber to effect "delimi- belt under the exclusive sovereignty of the respective
tations"—a question relating to the interpretation of para- riparian States, and he points out the exiguity of the area
graph 2 of article 2 of the Special Agreement on which the remaining after deduction of that belt. Indeed, the Central
Parties were greatly at variance—Judge Torres Bernárdez American Court appears to have acted under the influence
considers that the issue has become "moot" because of the of a sense prevalent among the three riparian States that
Judgment's recognition of rights and entitlements of the the Gulf should not remain open to free use by any other
Republic of Nicaragua within and outside the Gulf. As a State than themselves, and to have authorized a sui generis
result of this supervenient "mootness", Judge Torres regime based on a local illusion as to the historical back-
Bernárdez, invoking the jurisprudence of the Court, con- ground of law and fact. Yet there is no ground for believing
siders that the Judgment should have refrained from making
any judicial pronouncement on the said interpretative dis- that prior to 1821 or 1839 either Spain or the Federal
pute. As to the substance of this dispute, Judge Torres Republic of Central America had any control in the Gulf
Bernárdez concludes that the Chamber was competent to beyond the traditional cannon-range from the shore. Both
effect "delimitations" under article 2, paragraph 2, of the the 1917 judgement and the present Judgment depend on
Special Agreement, dissociating himself from the finding the assumption that the Gulf waters prior to those dates not
to the contrary of the majority of the Chamber. only formed an undivided bay but lay also as an entirety
within a singlejurisdiction. But at those times there did not
Lastly, Judge Torres Bernárdez expresses his agree- exist any concept of a bay as a geographical entity possess-
ment with the tenor of the declaration appended by Vice- ing a distinct legal status. Moreover, even if in 1821 or
President Oda. In the view of Judge Torres Bernárdez, a 1839 all the waters of the Gulf did possess unitary status,
non-party State intervening under Article 62 of the Stat- the natural result of the partition of the coasts among three
new territorial sovereigns would have been the inheritance
ute—like the Republic of Nicaragua in the current proceed- and control by each one separately of its own offshore waters,
ings—is under certain obligations of a kind analogous a solution actually reflected in the acknowledgement of the
mutatis mutandis to that provided for in Article 63 of the littoral belt. Judge Oda considers that by endorsing that
Statute, but the Judgment as such is not res judicata for belt and treating it as "internal waters" the Chamber's
Nicaragua. Judgment has confused the law of the sea. It similarly relies
on a concept now discarded as superfluous when it des-
Dissenting opinion of Vice-President Oda cribes the maritime spaces in the Gulf as "historic waters";
this description had been used on occasion to justify the
In his dissenting opinion, Judge Oda states that, while status either of internal waters or of territorial sea, though
he is in agreement with the Chamber's findings on the dis- not both at once, but the concept had never existed as an
putes concerning the land frontier and the islands, his un- independent institution in the law of the sea.
derstanding of both the contemporary and the traditional
law of the sea is greatly at variance with the views under- As to the true legal status of the waters of the Gulf of
lying the Judgment's pronouncements in regard to the Fonseca, Judge Oda finds that there is no evidence to sug-
maritime spaces. He considers that the concept of a "pluri- gest that, as from the time when the concept of territorial
State" bay has no existence as a legal institution and that
consequently the Gulf of Fonseca is not a "bay" in the legal sea emerged in the last century, the claims of the three
sense. Neither was the Chamber right to assume that it riparian States to territorial seas in the Gulf differed from
their claims off their other coasts, though El Salvador and
belonged to the category of a "historic bay". Instead of its Honduras eventually legislated for the exercise of police
waters being held in joint sovereignty outside a 3-mile power beyond the 3-mile territorial sea and Nicaragua
coastal belt, as the Chamber holds, they consist of the sum reportedly took the same position, which received general
of the territorial seas of each State. acceptance. Neither did their attitudes in 1917 feature a

44common confidence in rejecting the application to all the economic zone and continental shelf of neighbouring
Gulf waters of the then prevalent "open seas" doctrine, States.
even if they all preferred that an area covered entirely by
their territorial seas and police zones should not remein Against that background, Judge Oda considers the right
open to free use by other States-+ preference behind their of Honduras within and without the Gulf. Within it, Hon-
common agreement in the instant proceetlings to denomi- duras is in his view not entitled to any claim beyond the
nate the Gulf (erroneously) as a "historic bay". meeting-point of the three respective territorial seas. Its
title is thus locked within the Gulf. In its decision as to the
The boundary line drawn by the HonduranINicaraguan legal status of the waters, the Chamber seems to have been
mixed commission in 1900 demonstrated that at any tirne concernedto ensurethe innocent passage of Honduranves-
the waters of the Gulf could be so divide:d,though as be- sels, but such passage through territorial seas is protected
tween El Salvador and Honduras the pres,:nce of scattered for any State by international law. In any case, the mutual
islands would have complicated the task. Whatever the understanding displayedby the three riparian Statesshould
status of such divided waters may earlier have been, the enable them to cooperate, in keeping with the provisions
Gulf of Fonseca must now be deemed enlirely covered ;by on an "enclosed or semi-enclosed sea" in the 1982 Con-
the respective territorial seas of the three riparian States, vention.
given the universally agreed 12-mile limit and the clairns
of Latin American Statesthat contributed I:O its acceptance. As for the waters outside the Gulf, Judge Oda cannot
No maritime space ex.istsin the Gulf more than 12 miles accept the Chamber's finding that, since a condominium
from any of its coasts. prevails up to the closing line, Honduras is entitled to a
Beyond establishing the legal status 0.fthe waters, the continental shelfor exclusive economiczone inthe Pacific.
Chamber was not in a.position to effect any delimitation. That conclusion flies in the face of a geographical reality
Nevertheless, article 15 of the 1982 United Nations Con- such as there can never be any question of completely

vention on the Law of'the Sea, providing for delimitation, refashioning. Whether Honduras, which possesses a long
failing agreement, by the equidistance method unless his- Atlantic coastline, can be included in the category of
toric title or other special circumstances dictate otherwise, "geographically disadvantaged States" as defined by the
should not be ignored. Judge Oda points out that app1ic.a- 1982Convention is open to question. This does not, how-
tion of the equidistance method thus remains a rule in t'he ever, rule out the possibility of its being granted the right
delimitation of the tenritorial sea, even if that of achieving to fish in the exclusive economic zones of the other two
"an equitable solution" prevails in the delimitation of t'he States.