Memorial of the Republic of El Salvador
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INTERNATIONAL COURT OF' JUSTICE CASE CONCERNING THE LAND, ISLAND AND MARITIME FRONTIER DISPUTE (EL SALVADOR/HONDURAS) MEMORIAL OF THE REPUBLIC OF EL SALVADOR VOLUME I 1 JUNE, 1988. TABLE OF CONTENTS PART 1 GENERAL INTRODUCTION Chapter 1 The Objectives of the Litigation. Chapter 2 General Descriptions of El ~alvador and Honduras. PART II DELIMITATION OF THE LAND FRONTIER Chapter 3 The Law Applicable to the Delimitation of the Disputed Land Frontier. Chapter 4 General Considerations as to the Validity and Conclusive Character of forma1 Title Deeds to Cornons ("Tltulos Ejidales") . Chapter 5 Tierras Realengas '(Crown Lands). Chapter 6 The Disputed Areas a. Tecpanguisir Mountain b. Las pilas or Cayaguanca c. Arcatao or Zazalapa d. Perqufn, Sabanetas or Nahuaterique. e. Monteca or Dolores f. The Estuary of the GoascorSn g. Conclusion Chapter 7 Arguments 0f.a Human Nature presented by El Salvador in support of its Frontier Rights (Efectivittés) PART III JURIDICAL STATUS OF THE ISLANDS AND OF THE MARITIME SPACES SECTION A GENERAL ASPECTS Chapter 8 The Task of the Court Chapter 9 The Geography of the Islands and Maritime Areas. SECTION B THE LEGAL POSITION OF THE ISLANDS Chapter 10 The Law Applicable to the Determination of the Status of the Islands. Chapter 11 The Display of State Sovereignty by El Salvador. chapter 12 The Historic Title of El Salvador to al1 the Islands in Dispute. SECTION C THE LEGAL'POSITION OF THE MARITIME AREAS Chapter 13 The Position within the Gulf of Fonseca. Chapter 14 The Position in the Pacific Ocean outside the closing line of the Gulf of Fonseca. SUBMISSIONS List of Sketches and Maps included in the present Volume. List of Annexes in Volume II. PART 1 INTRODUCTION This is the Mernorial of El Salvador, filed pursuant to the Order of the Court on 27th May, 1987. The Mernorial consists of three parts: Part 1 - Contains the present Introduction and Chapters 1 and 2. These Chapters cover the objectives of the litigation (Chapter 1) and the general description of El Salvador and Honduras (Chapter 2). Part II - Consists of £ive Chapters coverinq the Law Applicable to the Boundary Delimitation in these areas (Chapter 3); the validity and conclusive character of the "Tltulos Ej idales" (Tities to Commons) (Chapter 4); The Clairns of El Salvador to Crown Lands (Tierras Realengas) (Chapter 5) ; the disputed areas and the technical description of the disputed areas (Chapter 6) and The Human Arguments, (Effectivites) (Chapter 7) . PART III - deals with the second question referred to the Court, namely the legal position of the islands. and the maritime areas. It is divided into three O sections : Section A , General Considerations consisting of Chapter 8. The Task of the Court and Chapter 9, the Geography of the Islands and the Maritime Areas. Section B. The Legal Position of the Islands consisting of Chapter 10, the Principles and Rules of Law Applicable to the Determination of the States of the Islands; Chapter 11, Display of the State Sovereingty by El Salvador, and chapter.12, Hiçtoric . Title of El Salvador with respect to al1 the islands in Dispute, and, 1 Section C, the Legal ~ositionof the Maritime Areas, consisting of Chapters 13, The Position within the Gulf of Fonseca, and Chapter 14, the Position in the Pacific Coast outside the closing line of the Gulf of Fonseca. CHAPTER 1 THE OBJECTIVES OF THE LITIGATION 1.1 Article 2 of the Special Agreement which forms the basis of the jurisdiction of the Court,, under the heading "Objectives of the Litigation", defines in clear and precise terms the dual .objectives of the present litigation in two separate paragraphs, which read as follows: OBJECTIVES OF THE LITIGATLON "The Parties request the Chamber:. "1. That it delimit the line of the frontier in the zones or sectors not described in Article 16 of the Tratado General de Paz (General Peace Treaty) of 30th October 1980. "II. That it determine the juridical status of the islands and of the maritime spaces". 1.2 This provision establishes a clear-cut distinction between, on the one hand, the delimitation of boundaries 'and, on the other hand, the determination of the juridical status; the former applies to the land frontier; the latter applies .both to the islands and to the maritime spaces. It is easy to define what is meant by the "determination of the juridical status of the islands". this evidently involves the determination of whether some or al1 of the islands whose sovereignty is disputed belong to El Salvador or to Honduras. The resolution of this question does not involve delimitation. It is equally clear that the Special Agreement defining the objectives of the litigation does not requires the Charnber to carry out any delimitation of the maritime spaces. ' 1.3 It is useful to compare the terms of the present Special Agreement with those of other Special Agreements that have brought before the Court disputes concerning maritime areas. In the North Sea Continental Shelf case in 1969, the Court, as in the present case,was not asked to carry out any delimitation or to fix any boundary line but instead to decide "~hatprinciple and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertairi to each of them". The parties reserved to themselves the power to "delimit the continental shelf as between their countries by agreement'' (Article 1 of the Compromise) (1). The Court did not go beyond what the parties had asked and limited itself to indicating that equidistance was not obligatory, to formulating certain general principles such as the delimita- (1) ICJ Reports 1969 p.6 * tion is to be effected by agreement 'in accordanqe with equitable principles and tri indicating to -the Parties certain criteria and factors. wh~ich should be tàken into account in the course of their negotiations in respect of delimitation. 1.4 In the Tunisia -Libya Continental Shelf case in 1982, the Court was similarly not asked to carry out a delimitation. The Special Agreement asked the Court to deliver a judgement on the question of "what are the principles and rules of international law which may be applied for the delimitation of the area of'the continental shelf". (Article 1). However this Special Agreement went a step further than the Agreement in the North Sea case in that it stated, in the second paragraph of the same Article 1, that "also, the Court is further requested to specify precisely the practical way in which the aforesaid principles and rules apply in this particular situation so as to enable the experts of the two countries to delimit these areas without any difficulties" (2). The Court observed that this case "would seem to lie between the North Sea Continental Shelf cases of 1969, in which the Court was asked only to indicate what principles ad rules of international law were applicable ,to the delimitation, and' the Franco-British Arbitration on the Delimitation of the Continental Shelf of 1977, in which the Court of Arbitration was requested to decide what was the course of the boun- (2) ICJ Reports' 1982 p.21 dary between the portions of the continental shelf appertaifing to each of the Parties in the relevant 0 area" (3. Further, in the operative part of the judgemena in the Tunisia-Libya case, the Court did notfdproceedsa to a delimitation but merely establishëd the principles and rules applicable to the @limitation, which was to be carried out by agreaent in implementation of the judgement \ A), specified dhe relevant circumstances (Paragraph B) and indicated to the parties "the practical method for the application of the prin'ciples and rules of International Law to the present case". (Paragraph C) . 0 1.5 In the Gulf of Maine case in 1982, the Chamber of the Court was requested to decide" [wlhat is the course of the .;si.ngle maritime boundary that divides the, continemtal- shelf and. fisheries zones of Canada and the ~nitedStates?" (4). The Chamber, in response to the terms of the Special Agreement, defined the course of the "single maritime boundary" dividing the continental shelf and _, fisheries zones 'of the Parties. (5) In the Libya-Malta continental shelf case in 1985, the Special Agreement requested the Court to decjde the following question:"What' principles and rules of international law are applicable to the delimitation of the area of the continental shelf which appertains to the Republic of Malta and the area of continental shelf which appertairis to the Libyan Arab Republic, and how in practice - (3) Ibid p.38 para. 25 (4) ICJ Reports 1984, p253 (5) Ibid p.345 such principles and rules can be applied by the two Parties in this particular case in order that they may without difficulty delimit such areas by an agreement as provided in Article III" (6).The Court, after defining the applicable principles and rules of law, considered " [tl hat the terms of the Special Agreement also make it its duty to define as precisely as possible a method of delimitation which should enable both parties to delimit their respective areas of continental shelf 'without difficulty', following the Court's decission in the case" (7).The Court indicated a corrected equidistance line, adding that "it will be for the parties and their experts to determine the exact position of the line" (8). 1.7 The following conclusions may be drawn from this comparative review of the terms of these other Special Agreements which have brought before the Court disputes concerning maritime areas. 1. The Court performs its functions very strictly, exercising its jurisdiction to its full extent but never exceeding it, in complete accord with the terms of the Special Agreement in the case in rquestion.