11 September 1992 Judgment

11 SEPTEMBER 1992 JUDGMENT LAND, ISLAh D AND MARITIME FRONTIER DISPUTE (EL SALVADClR/HONDURAS: NICARAGUA intervening) DIFFÉREND FRONTALIER TERRESTRE, INSULAIRE ET MARITIME (EL SALVADOR/HONDURAS; NICARAGUA (intervenant)) 11 SEPTEMBRE 1992 ARRÊT INTERNATIONAL COURT OF JUSTICE 1992 YEAR 1992 Il September General List No. 75 Il September 1992 CASE CONCERNING THE LAND, ISLAND AND MARITIME FRONTIER DISPUTE (EL SALVADOR/HONDURAS: NICARAGUA inte~ening) Case brought by Special Agreement - Dispute involving six sectors of international land frontier, legal situation of islands and of maritime spaces inside and outside the Gulfof Fonseca. Land boundaries - Applicability and meaning of principle of uti possidetis juris - Relevance of certain "titles" - Link between disputed sectors and adjoin- ing agreed sectors of boundary - Use of topographical features in boundary-mak- ing - Special Agreement and 1980 General Treaty of Peace between the Parties - Provision in Treaty for account to be taken by Chamber of "evidenceand arguments of a legal, historical, human or any other kind, brought before it by the Par- ties and admitted under international law" - Significance to be attributed to Spanish colonial titulos ejidales - Relevance ofpost-independence land titles - Role of effectivités - Demographic considerations and inequalities of natural resources - Considerations of "effective control" of territory - Relationship between titles and effectivités - Critical date. First sector of land boundary - Interpretation of Spanish colonial land titles - Effect of grant by Spanish colonial authorities to community in one province of rights over land situate in another - Whether account may be taken ofproposals or concessions made in negotiations - Whether acquiescence capable of modifying uti possidetis juris situation - Interpretation of colonial documents - Claims based solely on effectivités - Relevance of post-independence Iand titles - Sig- nificance of topographically suitable boundary line agreed ad referendum. Second sector of Iand boundary - Interpretation of Spanish colonial land titles - Circumstances justifying reliance on post-independence land titles - Interpretation of title - CIuims to particular area based on effectivités. 352 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT) Third sector of land boundary - Interpretation of Spanish colonial land titles - Interpretation of interlocking titles - lmpossibility of reconciling al1 recorded ref- erences to landmarks, distances and directions - Line which harmonizes identifi- ablefeatures and corresponds to recorded distances - Relevance of post-independence land titles - CIaims based solely on effectivités. Fourth sector of land boundary - Interpretation of Spanish colonial land titles and related judicial decision - Reference to negotiations between the Parties - Statement by Party of its view on a question of fart - Significance of recognition by Party that certain communal lands straddled internationalfrontier - Claim to area which was crown lands (tierras realengas) in colonial times - Absence of agreement between Parties as to location of endpoint of agreed sector of boundary - Limits ofjurisdiction of the Chamber - Absence of evidencefor determin- ing uti possidetis juris on part of line - Application of equity infra legem - Claims based on effectivités. Fifth disputed sector of the land boundary - Interpretation of Spanish colonial land titles - Claims based on effectivités. Sixth disputed sector of the land boundary - Colonial boundary formed by river - Change of river's course - New argument not consistent with previous history of dispute - Significance of 18th century map and survey - Relevance of past negotiations - Boundary line in river with several mouths. Legal situation of islands of the Gulfof Fonseca - Jurisdiction of the Charn- ber - Question which islands were in dispute ut date of SpecialAgreement - Law applicable to island dispute - Uti possidetis juris of 1821 - Colonialeffectivités and the islands - Evidence for application of uti possidetis juris fragrnentary and ambiguous - Recourse to other evidence and arguments contemplated by Special Agreement - Relevance of conduct of newly-independent States as a guide to uti possidetis juris boundary - Acquiescence and lack ofprotest. El Tigre island - Presence of Honduras in the island and administration by it - Attitude of El Salvador. Meanguera and Meanguerita islands - History of dispute - Administration of Meanguera by El Salvador - Conduct revealing acquiescence. Legal situation of maritime spaces - Whetherjurisdiction of Chamber includes delimitation of maritime spaces - Interpretation of Special Agreement - Ordi- nary meaning of text in its context - Ascertainment of common intention expressed in Special Agreement - Jurisdiction and principle of consent. Gulfof Fonseca as an historic bay with three coastal States - Particular historical régime established by practice - 191 7 Judgement of Central American Court of Justice - Exclusive littoral maritime belt of 1 marine league, further belt for rights of maritime inspection, 1900 maritime delimitation between Honduras and Nicaragua - Uso inocente of waters of Gulf - Sovereignty of three States in historic waters - Finding in 191 7 Judgement that waters of the Gulfare subject to a condominio (CO-ownership)- Legalstatus of 191 7Judgement - Judgement as a relevant precedent decision of a competent court and subsidiaty meansfor determi- nation of rules of law (Statute,Art. 38) - Conclusion of Chamber that Gulfwaters, other than 3-mile maritime belts, and waters delimited in 1900, are historic waters and subject to a joint sovereignty of the three coastal States - Honduran conten- tion of community of interests - Possibility or necessity of delimitation of waters. Closing line of Gulf- Whether or not also a baseline - Gulfwaters are interna1 waters subject to a special andparticular régime - Joint sovereignty and rights of passage - 1900 delimitation between Honduras and Nicaragua accepted by El Salvador - Significance of condominio (CO-ownership)for delimitation - Existence of legal rights of Honduras in waters ut the closing line. Waters outside the Gulf - Application of modern concepts of the law of the sea - Territorial sea - Closing line of historic bay constitutes baseline of territorial sea - Entitlement of Honduras in respect of ocean waters outside the Guif- Al1 three joint sovereigns of waters inside closing line of Guifhave entitlement outside that line to territorial sea, continental shegand exclusive economic zone - Choice between continuation of situation and delimitationfor the three States con- cerned. Intervention under Article 62 of the Statute of the Court - Effect of Judgment on State permitted to intervene as non-party - Possible effect of unilateral statement of intention to be bound. Invitation to Chamber under Rules of Court, Articles 66 and 67, to obtain evidence in situ - Requestfor admission of documents after close of oralproceedings. JUDGMENT Present: Judge SETTE-CAMARA,President of the Chamber; President Sir Robert JENNINGS;Vice-President ODA; Judges ad hoc VALTICOS,TORRES BERNARDEZ;Registrar VALENCIA-OSPINA. In the case concerning the land, island and maritime frontier dispute, between the Republic of El Salvador, represented by Mr. Alfredo Martinez Moreno, as Agent and Counsel, H.E. Mr. Roberto Arturo Castrillo, Ambassador, as Co-Agent, a:id H.E. Mr. José Manuel Pacas Castro, Minister for Foreign Relations, as Counsel and Advocate. Lic. Berta Celina Quinteros, Director General of the Boundaries Office, as Counsel, assisted by Mr. Eduardo Jiménez de Aréchaga, Professor of Public International Law at the University of Uruguay, former Judge and President of the Interna- tional Court of Justice; former President and Member of the International Law Commission, Mr. Keith Highet, Adjunct Professor of International Law at the Fletcher School of Law and Diplomacy and Member of the Bars of New York and the District of Columbia, Mr. Elihu Lauterpacht, C.B.E., Q.C., Director of the Research Centre for International Law, University of Cambridge, Fellow of Trinity College, Cambridge, Mr. Prosper Weil, Professor Emeritus at the Université de droit, d'économie et de sciences sociales de Paris, Mr. Francisco Roberto Lima, Professor of Constitutional and Administrative Law; former Vice-President of the Republic and former Arnbassador to the United States of America, Mr. David Escobar Galindo, Professor of Law, Vice-Rector of the University "Dr. José Matias Delgado" (El Salvador), as Counsel and Advocates, and Mr. Fraricisco José Chavarria, Mr. Santiago Elias Castro, Ms Solange Langer, Ms Ana Maria de Martinez, Mr. Anthony J. Oakley, Ms Ana Elizabeth Villalta, as Counsellors, and the Republic of Honduras, represented by H.E. Dr. Ramon Valladares Soto, Ambassador of Honduras to the Nether- lands, as Agent, H.E. Mr. Pedro Pineda Madrid, Chairman of the Sovereignty and Frontier Commission, as Co-Agent, Mr. Daniel Bardonnet, Professor at the Université de droit, d'économie et de sciences sociales de Paris, Mr. Derek W. Bowett, C.B.E., Q.C., LI.D., F.B.A., Whewell Professor of International Law, University of Cambridge, Mr. René-Jean Dupuy, Professor at the Collège de France, Mr. Pierre-Marie Dupuy, Professorat the Université de droit, d'économie et de sciences sociales de Paris, Mr. Julio Gonzalez Campos, Professor of International Law, Universidad Autonoma de Madrid, 355 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT) Mr. Luis Ignacio Sanchez Rodriguez,

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