El Salvador v.
Honduras
Land, Island and Maritime Frontier Dispute Case
Judgment of 11 September 1992
FACTS of the case:
On 11 December 1986, El Salvador and
Honduras jointly notified the Court of a Special
Agreement concluded between them on 24 May
1986 whereby a dispute referred to as "Land, Island
and Maritime Frontier Dispute" would be submitted
for decision by a Chamber to be constituted
according to Article 26 paragraph 2 of the Statute.
The dispute was essentially rooted in the
fall of the Spanish Colonial Empire in Central America
in the 19th century. Both Honduras and El Salvador
belonged to the Captaincy-General of Guatemala,
which itself was a part of Mexico at the time. In
1821, Honduras and El Salvador joined the Federal
Republic of Central America and became
independent in 1839 after the disintegration of the
Federal Republic. Their respective national borders
corresponded to the administrative borders
recognized for the former Spanish colonies according
to the uti possidetis iuris principle applied first in
Central America and later in Africa, which was
generally accepted at the time. The dispute between
the two countries involves six sectors of
international land frontier, the legal status of islands,
and of maritime spaces within and outside the Gulf
of Fonseca.
As early as 1854, the legal status of the
islands located in the Gulf of Fonseca became an
issue of dispute; the question of the land frontier
followed in 1861. Border incidents led to mounting
tension between the States and, ultimately, to an
armed conflict in 1969. However, in 1972 the parties
were able to reach an agreement on a substantial
part of the land border between El Salvador and
Honduras; only six sectors of the frontier remained
unsettled. A mediation process initiated in 1978
resulted in the conclusion of a peace treaty in 1980.
Under this treaty a Joint Border Commission
was created to determine the boundary in the
remaining six sectors as well as to decide upon the
legal status of the islands and the maritime spaces.
In the event that the parties did not reach a
settlement within five years, the treaty provided that
the parties, within six months, conclude a Special
Agreement to submit the dispute to the ICJ.
Accordingly, a Special Agreement was concluded on
May, 24, 1986 requesting the Court to delimit the
frontier between El Salvador and Honduras in the
subject six sectors and to determine the legal status
of the islands in the Gulf of Fonseca, and the waters
of the Gulf itself.
RESOLUTION of the disputes:
Regarding the land boundary involving six sectors
The Court relied on the uti possidetis
juris principle, according to which the national
boundaries of former colonies correspond to the
earlier administrative borders of the colonies. The
Court underlined that it was the application of this
principle which provided States liberated from
former colonial empires with internationally
recognized borders. The different titles invoked by
the parties to the case were of different legal value;
thus, the Court decided to recognize only the title
deeds granted by the Spanish crown as valid proof of
title as well as topographical characteristics in order
to define a clearly recognizable borderline.
Colonial effectivites - the conduct of the
administrative authorities as proof of the effective
exercise of territorial jurisdiction in the region during
the colonial period.
Where the act corresponds exactly to law,
where effective administration is additional to the
uti possidetis juris, the only role of effectivite is to
corroborate the exercise of the right derived from a
legal title. Where the act does not correspond to the
law, where the territory which is the subject of the
dispute is effectively administered by a State other
than the one possessing the legal title, preferences
should be given to the holder of the title. In the
event that the effectivite does not coexist with any
legal title, it must invariably be taken into
consideration. Also, there are cases where the legal
title is not capable of showing exactly the territorial
expanse to which it relates. In such a situation, the
effectivites can play an essential role in showing how
the title is interpreted in practice.
Ecclesiastical jurisdiction, in its primary
sense, does not signify jurisdiction over ecclesiastics
("church leadership"), but jurisdiction exercised by
church leaders over other leaders and over the laity.
Jurisdiction is a word borrowed from the legal
system which has acquired a wide extension in
theology, wherein, for example, it is frequently used
in contradistinction to order, to express the right to
administer sacraments as something added onto the
power to celebrate them. So it is used to express the
territorial or other limits of ecclesiastical, executive
or legislative authority. Here it is used as the
authority by which judicial officers investigate and
decide cases under Canon law.
Regarding the legal status of islands
With regard to the islands in the Gulf of
Fonseca, the Court decided that, according to Art. 2
para. 2 of the Special Agreement, the parties had
transferred general jurisdiction over all islands
located in the Gulf to the Court as far as their
national affiliation was in dispute. Accordingly, the
Court concluded that three islands were in dispute,
namely El Tigre, Meanguera and Meanguerita,
refusing Honduras' contention that El Tigre had been
part of Honduras since 1854, without challenge.
The decision of the Court was based on the
assumption that none of the islands had been terra
nullius in 1821, the date of independance. Thus,
sovereignty over the islands had been achieved
according to the uti possidetis juris principle.
However, the application of this principle suffered
from the lack of documents that might have testified
clearly the appurtenance of the islands to one
administrative district or the other. Thus the Court
was forced to concentrate more on the behaviour of
the parties with regard to the islands after 1821. On
this basis the Court found that El Tigre appertained
to Honduras and Meanguera and Meanguerita to El
Salvador.
Regarding the legal situation of the maritime spaces
The decision on the legal situation of the
maritime spaces of the Gulf constituted the part of
the proceedings where the intervention of Nicaragua
had been admitted. The Court, in this context, had
first to decide whether the Special Agreement
empowered it to draw the frontier only within or
also outside the closing line of the Gulf. Following
the argument of El Salvador, the Court came to the
conclusion that it was not competent to delimit the
waters of the Gulf, because the Special Agreement
did not contain indications in this sense.
According to the Agreement, the Court had
to determine the legal status of the waters of the
Gulf on the basis of applicable international law and,
insofar as necessary, the General Peace Treaty of
1980 between El Salvador and Honduras. In view of
its general characteristics, dimensions and
proportions, the Gulf would today be regarded as a
juridical bay in accordance with the Convention on
the Territorial Sea and the Contiguous Zone of 1958
and the Convention on the Law of the Sea of 1982.
As a consequence thereof, if the Gulf was a single
State bay, a closing line could be drawn and the
waters thereby enclosed and considered as internal
waters. However, the Gulf was not a single State bay
but constituted a so called historical bay, which is
neither defined in the 1958 Convention nor in the
Convention of 1982. From this fact the Court
concluded that its decision had to be taken on the
basis of customary international law.
 After reviewing its own jurisprudence on
the topic, the Court found that it had to examine the
history of the Gulf. In this context, much weight was
accorded to a judgment of the Central American
Court of Justice of 1917 in a dispute between El
Salvador and Nicaragua. That Court had come to the
conclusion that the Gulf of Fonseca effectively
constituted a "closed sea" belonging to all three
coastal States communally, with the exception of a
three mile zone established unilaterally by each
coastal State. Thus, the Central American Court
viewed the Gulf of Fonseca as a condominium
resulting from the succession of the three States
from Spain in 1821. Until then, the Gulf had been a
single State bay belonging to Spain alone.
According to the Court, the decision of the
Central American Court underlined the fact that at
the time of independence, no boundaries were
delimited in the Gulf and thus the waters had
remained undivided. The Court, however, stressed
that the decision of the Central American Court
constituted a binding judgment only between the
two parties originally involved, namely El Salvador
and Nicaragua, and accordingly, the Court had to
reach its own decision. The Court affirmed that the
Gulf of Fonseca was a case of "historic waters",
whereby the three coastal States had succeeded to
communal sovereignty. In contrast to the frontier
delimited on land, the waters of the Gulf had never
been divided or otherwise delimited after the
independence of the three coastal States. Thus, the
communal succession for the three States was a
logical consequence of the uti possidetis
juris principle with regard to the sovereignty of the
Gulf.
Finally, the Court drew the closing line of
the Gulf between Punta de Amapala and Punta
Cosiguina and determined that the special regime of
the Gulf did not extend beyond this closing line. The
legal status of these waters inside the Gulf were
defined by the Court as sui generis, but would be the
same as that of internal waters and not that of
territorial sea, except for the three-mile coastal zone
of each State.
As to the waters outside the Gulf, the
Chamber noted that intirely new concepts of
maritime law existed present day, unheard of in
1917. The Chamber held in this context that there is
a territorial sea proper seawards of the closing line
of the Gulf. Since there is a condominium of the
waters inside the Gulf, there is a tripartite presence
at the closing line. Only seaward of the closing line
could modern territorial seas exist, as otherwise, the
Gulf waters could not be waters of a historic bay.
Therefore, the three coastal States, joint sovereigns
of the internal waters, must each be entitled outside
the closing line to a territorial sea, continental shelf
and exclusive economic zone. It is, however, for the
three States to decide whether this situation should
be upheld or replaced by a division and delimitation
into three separate zones.