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Land, Island and Maritime Frontier Dispute

Published online by Cambridge University Press:  27 February 2017

Gideon Rottem
Gideon Rottem*
Affiliation:
The Fletcher School of Law and Diplomacy
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 87 , Issue 4 , October 1993 , pp. 618 - 626
Copyright
Copyright © American Society of International Law 1993

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References

1 Special Agreement Between El Salvador and Honduras, May 24, 1986, translated in 1992 ICJ Rep. 351, 356, para. 3.

2 By an Order of May 8, 1987, the Court formed a chamber to deal with this case. The Chamber was composed of Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings and ICJ Vice President Oda; and Judges ad hoc Torres Bernardez and Valticos. Judge ad hoc Torres Bernardez replaced Judge ad hoc Virally after the latter’s death on January 27, 1989. See Land, Island and Maritime Frontier Dispute (El Sal./Hond.), 1989 ICJ Rep. 162, 163 (Order of Dec. 13).

3 Nicaragua filed an application to intervene in the dispute relating to the juridical status of the waters. On September 13, 1990, the Chamber decided that Nicaragua was permitted to intervene in the case, but not as a party, pursuant to Article 62 of the Statute of the Court. Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 92 (Sept. 13), reprinted in 29 ILM 1345 (1990).

4 Frontier Dispute (Burkina Faso/Mali), 1986 ICJ Rep. 554, 566, para. 23 (Dec. 22).

5 1992 ICJ Rep. at 386–87, para. 42. The Chamber quoted the arbitral award of the Swiss Federal Council of March 24, 1922, Affaire des Frontières colombo-vénézueliennes, 1 R.I.A.A. 223, 228 (1922). The status of terra nullius is that of legally uninhabited or unclaimed territory and is a condition or principle of international law by which such territory may be acquired by a state through effective or even symbolic acts of occupation.

6 See 1986 ICJ Rep. at 565, para. 20.

7 1992 ICJ Rep. at 388, para. 43.

8 Id. at 381–86, paras. 30–39.

9 The General Treaty of Peace was ratified by El Salvador on November 21, 1980, and by Honduras on December 8, 1980. Id. at 383, para. 36.

10 Id., para. 37.

11 Id. at 357–58, para. 3.

12 Id. at 388, para. 45 (quoting Frontier Dispute, 1986 ICJ Rep. at 564, para. 18).

13 Frontier Dispute, 1986 ICJ Rep. at 586, para. 63.

14 1992 ICJ Rep. at 391, para. 47.

15 Judge ad hoc Torres Bernárdez, in his separate opinion, noted that Article 26 of the Peace Treaty could not be interpreted by one party unilaterally. It was subject to the rules of interpretation of treaties, codified in the 1969 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331. He further noted that, since the land boundary dispute adjudicated by the Chamber was an international dispute, not a dispute about land limits of Indian communities, limits to real property rights belonging to either communities or individuals could not be transformed into international frontiers. Judge ad hoc Torres Bernárdez asserted that there was nothing inherent in Spanish law justifying any special treatment by the Chamber of “formal title-deeds to commons,” and that El Salvador’s contention appeared to contradict general international law, since this law and practice are adverse to any municipal law concept of a “best evidence rule.” See 1992 ICJ Rep. at 638–40, paras. 17–20 (Torres Bernardez, J., sep. op.).

16 1992 ICJ Rep. at 396, para. 58 (citing Frontier Dispute, 1986 ICJ Rep. at 633, para. 149).

17 Id. (quoting 1982 ICJ Rep. 18, 77, para. 107) (Feb. 24)).

18 Id. at 398, para. 61 (citing Frontier Dispute, 1986 ICJ Rep. at 586–87, para. 63).

19 Judge ad hoc Valticos found the role of effectivités to be “unduly reduced.” See id. at 623 (Valticos, J., sep. op.).

20 Argentine-Chile Frontier Case, 38 ILR 10 (Queen Elizabeth II 1966).

21 In the first, second, third, fifth and sixth sectors, the boundary line was decided unanimously. In the fourth sector, the boundary line was decided by four votes to one, with Judge ad hoc Valticos casting the dissenting vote.

22 1992 ICJ Rep. at 551–53, paras. 318–22.

23 In the original Spanish: “Que determine la situación jurídica insular.” Id. at 357, para. 3.

24 1992 ICJ Rep. at 553–54, para. 323.

25 Id. at 554, para. 324.

26 Judge ad hoc Torres Bernárdez was of the view that the only question at issue requiring a judicial answer was the existence of a manifest and established dispute over islands other than Meanguera and Meanguerita; he contended that the Chamber should not have treated the dispute mainly as a matter of interpreting the Special Agreement. Id. at 664, para. 68 (Torres Bernárdez, J., sep. op.).

27 1992 ICJ Rep. at 554–55, paras. 324–26.

28 Id. at 555, para. 326 (citing Mavrommatis Jerusalem Concessions, 1925 PCIJ (ser. A) No. 5, at 11 (Mar. 26).

29 Island of Palmas (U.S./Neth.), 2 R.I.A.A. 829 (1928) (Perm. Ct. Arb.).

30 In his separate opinion, Judge ad hoc Torres Bernárdez expressed the view that the grouping together of Meanguera and Meanguerita was an error. 1992 ICJ Rep. at 709–11, paras. 169–76 (Torres Bernárdez, J., sep. op.). However, considering the fact that both parties created this amalgamation, it is hard to see how the Chamber could have treated this issue in another manner.

31 Where it was stated that “the occupation of the principal islands of an archipelago must also be deemed to include the occupation of islets and rocks in the same archipelago, which have not been actually occupied by another State.” Minquiers and Ecrehos case (Fr./U.K.), 1953 ICJ Rep. 47, 99 (Nov. 17) (Levi Carneiro, J., sep. op.).

32 Article 2, paragraph 2 states that the parties request the Chamber to “determine the legal situation of the … maritime spaces.” 1992 ICJ Rep. at 357, para. 3.

33 1992 ICJ Rep. at 582–84, paras. 372–75.

34 Id. at 378–79, paras. 25–26. Nicaragua was concerned to protect its interests in the gulf. Among other things, it contended that the issues at hand related to the law of the sea, except with regard to the question of condominium; that “[t]he consistent practice of the riparian States has recognized the absence of any special legal regime within the Gulf”; and that no regime of condominium existed in the gulf.

35 1992 ICJ Rep. at 582–83, paras. 373–74.

36 Id. at 585–86, paras. 378–80.

37 Id. at 589, para. 384.

38 Id. at 586–609, paras. 381–420.

39 Republic of El Salvador v. Republic of Nicaragua (Central Am. Ct. J., Mar. 9, 1917), translated and reprinted in 11 AJIL 674 (1917).

40 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

41 The Chamber concluded in its decision on Nicaragua’s Application to Intervene that, to become a party to the case, an intervening party must receive the consent of the parties to that case. Since neither party in this case gave its consent to Nicaragua’s intervention, Nicaragua did not become a party to the case. See 1990 ICJ Rep. 92 (Sept. 13).

42 Article 59 of the ICJ Statute states: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

43 1992 ICJ Rep. at 610, para. 424.

44 Id. at 619 (Oda, J., declaration).

45 1992 ICJ Rep. at 730–31, para. 208 (Torres Bernárdez, J., sep. op.).

46 Continental Shelf (Tunis./Libyan Arab Jamahiriya), Application to Intervene, 1981 ICJ Rep. 3, 23 (Apr. 14) (Oda, J., sep. op.); Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, 1984 ICJ Rep. 3, 90 (Mar. 21) (Oda, J., diss. op.).

47 1992 ICJ Rep. at 730–31, para. 208 (Torres Bernárdez, J., sep. op.).

48 Delimitation of the Maritime Areas between Canada and France (June 10, 1992), reprinted in 31 ILM 1145 (1992), summarized in 87 AJIL 452 (1993).

49 See North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20).

50 Hersch Lauterpacht, The Development of International Law by the International Court 48 (1958).