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The law of multinational bays and the case of the Gulf of Fonseca*

Published online by Cambridge University Press:  07 July 2009

A. Gioia
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Extract

On 11 September 1992, a Chamber constituted by the International Court of Justice delivered a long-awaited judgment in the case concerning the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras.

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Netherlands Yearbook of International Law , Volume 24 , December 1993 , pp. 81 - 137
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Copyright © T.M.C. Asser Press 1993

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References

1. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), Judgment of 11 September 1992, ICJ Rep. (1992) p. 351 et seq.

The Chamber was composed as follows: Judge Sette Camara, President of the Chamber; PresidentSir Robert Jennings; Vice-President Oda; Judges ad hoc Valticos and Torre Bernárdez. Judge Torre Bernárdez was chosen by Honduras in 1989 after the death of Judge ad hoc Virally.

2. Dissenting Opinion of Judge Oda, ICJ Rep. (1992) p. 732 et seq., at p. 733.

3. Special Agreement Between El Salvador and Honduras to Submit to the Decision of the International Court of Justice the Land, Island and Maritime Boundary Dispute Existing Between the Two States, signed in Esquipulas (Guatemala) on 24 May 1986. The original text of the agreement was in Spanish. A joint translation into English was provided by the Parties and is reproduced in the Chamber's judgment: see ICJ Rep. (1992) at pp. 356–358.

On 24 November 1973, El Salvador had denounced the American Treaty on Pacific Settlement of Disputes (the Pact of Bogotá), and on 26 November 1973 it had notified the UN Secretary-General of its new declaration of acceptance of the compulsory jurisdiction of the International Court of Justice, with reservations in effect excluding the dispute with Honduras (see ICJ Yearbook (1973–1974) at p. 56). Honduras also replaced its declaration of acceptance of jurisdiction with a new one effectively excluding the dispute with El Salvador on 6 June 1986 (see ICJ Yearbook (1986–1987) at p. 70).

4. Art. 2 of the Special Agreement.

5. Art. 5 of the Special Agreement, which referred to ‘the Provisions of the first paragraph of Art. 38 of the Statute of the International Court of Justice.’

6. In its application, Nicaragua stated that the application was made by virtue of Art. 36(1) and Art. 62 of the Statute of the Court. As for the ‘precise object of the intervention’, the application stated that Nicaragua's object was: ‘First, generally to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all legal means available. Secondly, to intervene in the proceedings in order to inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute. This form of intervention would have the conservative purpose of seeking to ensure that the determination by the Chamber did not trench upon the legal rights and interests of the Republic of Nicaragua’ (ICJ Rep. (1990) at pp. 19–21).

By an order of 28 February 1990, the Court found that it was for the Chamber formed to deal with the case, rather than for the full Court, to decide whether the application for permission to intervene should be granted. See Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Order of 28 February 1990, ICJ Rep. (1990) p. 3 et seq.Google Scholar

7. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, ICJ Rep. (1990) p. 92 et seq. Both Parties had submitted written observations on Nicaragua's application: Honduras had stated that it had no objection to Nicaragua being permitted to intervene for the sole purpose of presenting its case on the legal status of the waters within the Gulf of Fonseca; El Salvador, on the other hand, requested the Chamber to deny the permission sought by Nicaragua. The Chamber decided that Nicaragua should be permitted to intervene, but solely in respect of the Chamber's consideration of the legal regime of the maritime spaces within the Gulf of Fonseca: permission was not granted in so far as the dispute related to sovereignty over the islands in the Gulf, to the legal regime of the waters outside the Gulf, and to questions of delimitation within and outside the Gulf.

This was the first case in the history of the International Court of Justice in which a State was granted permission to intervene under Art. 62 of the Statute. The Chamber found that a State which is allowed to intervene does not also become a party to the case unless mere is the necessary agreement by the parties thereto and that, consequently, the existence of a valid link of jurisdiction between the would-be intervener and the parties is not a requirement for the success of the application. As for the procedural rights acquired by the intervening State, the Chamber found that, though not acquiring the rights and duties which attach to the status of a party in the proceedings, Nicaragua had a right to be heard by the Chamber under Art. 85 of the Rules of Court, which provides for submission of a written statement and participation in the hearings.

8. Convention on the Law of Treaties, done at Vienna on 23 May 1969, 1115 UNTS p. 331 et seq.

9. ICJ Rep. (1992) at pp. 582–586. The Court accordingly decided ‘that the Parties, by requesting the Chamber, in Article 2, paragraph 2, of the Special Agreement of 24 May 1986, “to determine the legal situation of the … maritime spaces” have not conferred upon the Chamber jurisdiction to effect any delimitation of those maritime spaces, whether within or outside the Gulf.’ This decision was reached by four votes to one, Judge ad hoc Torres Bernárdez voting against.

10. ICJ Rep. (1992) at pp. 616–617. Vice-President Oda voted against.

11. Ibid., at p. 617.

12. For a brief description of the Gulf of Fonseca, see Kennedy, R.H., ‘A Brief Geographical and Hydrographical Study of Bays and Estuaries the Coasts of Which Belong to Different States’, UN Doc. A/CONF. 13/15, in United Nations Conference on the Law of the Sea (1958), Official Documents, Vol. I, p. 198 et seq., at p. 203.Google Scholar

13. A brief history of the dispute is made by the Chamber itself in its 1992 judgment: see ICJ Rep. (1992) at pp. 380 et seq.

14. See Rousseau, C., ‘Chronique des faits internationaux’, 74 RGDIP (1970) at pp. 486–491Google Scholar. Further incidents took place in 1976: see ibid., ‘Chronique des faits internationaux’, 81 RGDIP (1977) at p. 553.Google Scholar

15. See ICJ Rep. (1992) at p. 383. Previously held negotiations had achieved the establishment of a three-kilometre security zone in 1970.

16. On this treaty, which entered into force on 10 December 1980, see Henera Cáceres, H.R., ‘Le Traité Général de Paix entre les Républiques d'El Salvador et du Honduras’, 28 AFDI (1982) p. 169 et seqGoogle Scholar. Arts. 31, 32 and 36 of the Treaty are reproduced in ICJ Rep. (1992) at pp. 383–385.

17. Supra, n. 3.

18. See ICJ Rep. (1992) at pp. 615–616.

19. Ibid., at p. 381.

20. The line of this division still subsists and was referred to in the 1992 judgment (see supra, section 1, n. 10 and corresponding text); it runs to a point midway between the southern part of El Tigre Island and Punta Rosario, on the northern part of the Cosigüina peninsula. The published records of the delimitation effected by the Mixed Commission in 1900 are quoted in the 1990 judgment on Nicaragua's application to intervene: see ICJ Rep. (1990) at pp. 101–102. Apparently, there was some controversy between Honduras and Nicaragua at the hearings in this case as to the position of the seaward terminus of the delimitation line but, as the Chamber observed in its judgment, ‘it appears that for both States the line does not extend so far as to meet a closing line between Punta Amapala and Punta Cosigüina’ (ibid., at p. 102).

21. See ICJ Rep. (1992) at pp. 605–606.

22. The text of the 1914 convention is in de Martens, G.F., Nouveau recueil général de traités, 3ème série, Triepel, H., ed., Vol. IX, p. 350 et seqGoogle Scholar. See Gonzáles, S. Rodríguez, ‘The Neutrality of Honduras and the Question of the Gulf of Fonseca’, 10 AJIL (1916) p. 509 et seq.CrossRefGoogle Scholar

23. The judgment in the case under examination was delivered on 9 March 1917 in Spanish, but an English translation was published by the Legation of El Salvador in Washington. See: The Republic of El Salvador v. The Republic of Nicaragua. Central American Court of Justice. Opinion and Decision of the Court, 11 AJIL (1917) p. 674 et seqGoogle Scholar. This translation was used by the Parties before the Chamber of the International Court of Justice and was also quoted in the 1992 judgment.

24. See 11 AJIL (1911) at pp. 677–680.

25. See ibid., at p. 696.

26. See ibid., at pp. 716–717.

27. See ibid., at pp. 687–689.

28. See ibid., at pp. 692–696, and 730.

29. See ICJ Rep. (1990) at p. 16.

30. See ICJ Rep. (1992) at pp. 362–363, 364, 365 and 372. El Salvador claimed, in its Memorial, that: ‘On the basis of the 1917 judgment an objective legal regime has been established in the Gulf. Even if initially the judgment was binding only in respect of the direct parties to the litigation, Nicaragua and El Salvador, the legal status recognized therein has been consolidated in the course of time; its effects extend to third States, and in particular, they extend to Honduras’ (ICJ Rep. (1990) at p. 18).

31. See ICJ Rep. (1992) at pp. 367–368, 370–371 and 377–378. Honduras contended, in its Reply, that it was not the 1917 judgment which conferred sovereignty upon the coastal States over the waters of the Gulf of Fonseca, that sovereignty dating back to the creation of the three States concerned and that, in the case of ‘a judgment or arbitral award laying down a delimitation as between the parties to a dispute, the solution therein adopted can only be opposed to the parties’ (ICJ Rep. (1990) at p. 18).

32. See ICJ Rep. (1992) at pp. 378–379.

33. See ibid., at pp. 368, 371 and 378.

34. See ibid., at pp. 363, 364 and 372.

35. See ibid., at p. 379. Nicaragua, of course, had not been allowed by the Court to intervene in the case in so far as it related, inter alia, to the legal regime of the waters outside the Gulf of Fonseca: see supra, n. 7. This explains its caution, which, however, did not prevent the Parties from complaining that the written statement submitted by the intervening State had entered into matters on which the Chamber had ruled that Nicaragua had no right to intervene: see ICJ Rep. (1992) at pp. 580–581.

36. On the basis of the 1917 judgment, and of little else, the Gulf of Fonseca has been included among ‘historic bays’ by several legal writers. See for example Gonzáles, S. Rodríguez, El Golfo de Fonseca en el derecho publico centroamericano (1918) at p. 5Google Scholar; Jessup, P.C., The Law of Territorial Waters and Maritime Jurisdiction (1927) at pp. 398–410Google Scholar; Gidel, G., Le droit international public de la mer, Vol. III (1934) at p. 653Google Scholar; Malek, C., ‘La théorie dite des “baies historiques”’, 6 Revue de droit international pour le Moyen Orient (1957) p. 100 et seq., at pp. 114–115Google Scholar; ‘Les baies historiques. Memorandum préparé par le Sécrétariat de I'O.N.U.’, UN Doc. A/CONF. 13/1, Conférence des Nations Unies sur le droit de la mer. Documents officiels, Vol. I, p. 1 et seq., at pp. 8–10Google Scholar; Focsaneanu, L., ‘Le droit international maritime de l'Océan Pacifique et de ses mer adjacentes’, 7 AFDI (1961) p. 173 et seq., at pp. 199–200CrossRefGoogle Scholar; Whiteman, M.M., Digest of International Law, Vol. IV (1965) at pp. 235–236Google Scholar; Colombos, C.J., The International Law of the Sea, 6th edn. (1967) at pp. 188–189Google Scholar; Verzijl, J.H.W., International Law in Historical Perspective, Vol. III (1970) at p. 295Google Scholar; Dupuy, R.-J., ‘La mer sous compétence nationale’, in R.-J. Dupuy and D. Vignes, Traité du nouveau droit de la mer (1985) p. 219 et seq., at pp. 235 and 236.Google Scholar

37. Fisheries case (United Kingdom v. Norway), Judgment, ICJ Rep. (1951) p. 116 et seq., at p. 130.

38. According to several writers, however, the concept of historic waters, as defined by the World Court, is itself a species of a general category of ‘historic rights’, these being rights of sovereignty, or ‘sovereign rights’ of a lesser scope, acquired by virtue of a historic title. According to this view, on the basis of a historic title, sovereignty could be acquired over a wider area of territorial sea than is allowed for by the general rules on the breadth of the territorial sea and/or special rights could be acquired for specific purposes over an area of high seas. Some writers even maintain that the concept of historic titles could play a role in the field of the acquisition of sovereignty over land territories. For a discussion of the doctrine of historic bays, historic waters and historic rights, see Gioia, A., Titoli storici e linee di base del mare territoriale (1990) at pp. 3–149.Google Scholar

39. For an analysis of the role played by the concept of historic waters in the practice of States, see Gioia, op. cit. n. 38, at pp. 789–945. It may be interesting to recall that in the 1982 judgment in the Libya/Tunisia Continental Shelf case, the International Court of Justice drew a distinction between ‘the notion of historic rights or waters’ and that of the continental shelf, and said that: ‘the first regime is based on acquisition and occupation, while the second is based on the existence of rights “ipso facto” and “ab initio” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Rep. (1982) p. 18 et seq., at p. 74). The majority of writers, as well as some States, have not in fact referred to the concept of ‘occupation’, but to the different concept of ‘prescription’, precisely in order to make it clear that a claim to exclusive sovereignty beyond the generally recognized limits of maritime territory directly touches upon the rights of other States: the sea is not a res nullius. However, both concepts are misleading, since, in the field of the acquisition of land territory, they are usually considered to be modes of acquisition contemplated as such by general customary law: on the contrary, title to a historic bay is acquired in derogation of the otherwise applicable general rules on the acquisition of maritime territory.

40. See Bourquin, M., ‘Les baies historiques’, in Mélanges Georges Sauser-Hall (1952) p. 37 et seq.Google Scholar

41. See ‘Juridical Regime of Historic Waters, Including Historic Bays’, UN Doc. A/CN. 4/143, ILC Yearbook, Vol. II, p. 1 et seq., at pp. 7–11.

42. As the 1962 UN Secretariat study recognized, the subject of historic waters is one ‘where superficial agreement among practitioners conceals several controversial problems as well as some obscurity or at least lack of precision’ (op. cit. n. 41, at p. 6).

In the part of the 1992 judgment dealing with the dispute over the land boundary, the Chamber of the World Court recalled the observation made by the Chamber of the Court in the Frontier Dispute case that the term ‘title’ comprehends ‘both any evidence which may establish the existence of a right, and the actual source of that right’ (ICJ Rep. (1986) at p. 564): see ICJ Rep. (1992) at pp. 388–389. This ambiguity is reflected in the corresponding ambiguity of the expression ‘historic title’: according to the majority view, a historic title is the actual source of a right of territorial sovereignty; by contrast, for those taking the minority view, the source of the right is a norm of general customary law, whereas the historic title merely constitutes evidence of the existence of that right.

43. This was in fact the position taken by Norway in the 1951 Fisheries case. For a discussion of that position see Gioia, op. cit. n. 38, at pp. 463–475.

44. This was the position taken by the UK in the 1951 Fisheries case. For a discussion of that position see Gioia, op. cit. n. 38, at pp. 164–168 and 170–181.

45. For a discussion of the role played by the concept of historic waters in the context of the evolution of general customary rules on the interior limit of the territorial sea see Gioia, op. cit. n. 38, at pp. 787–841.

46. It is, therefore, difficult to agree with the brief analysis of the development of the law of the sea made by Vice-President Oda in the dissenting opinion appended to the 1992 judgment: Judge Oda seems to believe that the concept of ‘bays’ only emerged at the time when the three-mile rule for the breadth of the territorial sea gained acceptance as a result of the enactment by the UK of the 1878 Territorial Waters Jurisdiction Act (see ICJ Rep. (1992) at p. 735 et seq.). Judge Oda's analysis can be accepted only in so far as the emergence of precise limits for the drawing of baselines across bays is concerned: these limits only emerged in the practice of States during the second half of the 19th century.

47. It can probably be asserted that, as far as the practice of States is concerned, the concept of the historic bay was first referred to, albeit under a different terminology, by the USA during the course of the long-lasting dispute with the UK over the North Atlantic coast fisheries, and, in particular, in the proceedings in the 1910 arbitration which solved the dispute: see Gioia, op. cit. n. 38, at pp. 223–230 and 232–234.

48. The North Atlantic Coast Fisheries case, 11 RIAA, p. 167 et seq., at p. 199. For a detailed discussion of the 1910 award see Gioia op. cit. n. 38, at pp. 333–349.

49. The value of the 1910 award as a statement of the customary law then in force is somewhat obscured by the fact that the Court based its decision on an interpretation of the word ‘bays’ as used in the 1818 treaty. According to the Court, the drafters of the treaty had not troubled themselves ‘with subtle theories concerning the notion of “bays”; they most probably thought that everybody would know what was a bay.’ The Court accordingly found that ‘in this popular sense the term must be interpreted in the Treaty’ (supra, n. 48, at pp. 188–189). However, in a series of important obiter dicta in which it examined the United States’ contention that the 1818 treaty was to be interpreted in the light of customary international law, the Court gave the impression that its decision would not have been different had it found that the treaty referred to the legal notion of‘bays’: supra, n. 48, at pp. 196–197.

50. Supra, n. 48, at p. 197.

51. Drago, L.M., ‘Grounds for the Dissent to the Award on Question V’, 11 RIAA, p. 203 et seq., at p. 206.Google Scholar

52. See supra, n. 48, at p. 199. The parties had in fact also asked the Court to make recommendations on the application of the principles established in the award, in order to avoid future disputes.

53. Oppenheim, L., International Law, Vol. I (1905) at pp. 247–248.Google Scholar

54. See 11 AJIL (1917) at pp. 677–680 and 687–689, respectively.

55. Ibid., at pp. 693 and 705.

56. Ibid., at pp. 706–707.

57. Ibid., at pp. 707–709.

58. ICJ Rep. (1951) at p. 130.

59. Ibid., at p. 131.

60. Ibid., at pp. 132–133.

61. It must be recognized, however, that the language used by the Court was, in some passages, rather ambiguous and could be interpreted in the sense that, even if the Norwegian baselines had been illegal under general international law, they could be justified on the basis of an exceptional historic title. These passages will be referred to later as they may be useful in determining the constitutive elements of a historic title: see infra, n. 96. But in any case, the finding that the Norwegian system could have been justified on the basis of an exceptional acquisitive title only had the limited role of an obiter dictum in the context of the decision, since the Court unequivocally stated that it was ‘unable to share the view of the United Kingdom Government’ that Norway was claiming ‘recognition of an exceptional system’, and that all that it could ‘see therein’ was ‘the application of general international law to a specific case’ (ICJ Rep. (1951) at p. 131). For a more detailed discussion of the Anglo-Norwegian Fisheries case see Gioia, op. cit. n. 38, at pp. 463–491.

62. ICJ Rep. (1951) at pp. 129–130.

63. Ibid., at p. 131. A fortiori, the six-mile rule must be considered as having never acquired general customary status.

64. Ibid., at p. 133.

65. Convention on the Territorial Sea and the Contiguous Zone, done at Geneva on 29 April 1958, 516 UNTS, p. 205 et seq.

66. The only significant role which could be played by a claim to historic waters in this context is to allow the coastal State to deny innocent passage of foreign vessels in the waters lying on the landward side of its straight baselines, in derogation of the rule laid down in Art. 5(2) of the 1958 Convention, or to avoid the application of rules relating to international straits as provided for in Art. 35(a) of the 1982 United Nations Convention on the Law of the Sea (infra, n. 67). For a detailed discussion of the role played by the concept of historic waters in the context of the customary rules on straight baselines see Gioia, op. cit. n. 38, at pp. 805–820.

67. United Nations Convention on the Law of the Sea, done at Montego Bay (Jamaica) on 10 December 1982.

68. ICJ Rep. (1992) at p. 588.

69. Idem.

70. Ibid., at p. 589.

71. Ibid., at p. 594.

72. Op. cit. n. 53. See also Oppenheim, L., International Law, Vol. I, Lauterpacht, H., ed., 8th edn. (1955) at p. 508Google Scholar. It is significant, however, that in the latest edition it is recognized that ‘it would be anomalous if the coastal states of a pluristatal bay should thus be supposed jointly to enjoy markedly inferior powers of jurisdiction and control over the waters of their bay than might be enjoyed by the littoral state of a single-state bay’ (Oppenheim's International Law, Vol. I, Jennings, R. and Watts, A., eds., 9th edn. (1992) at pp. 632–633).Google Scholar

73. See among others Guggenheim, P., Traité de droit international public, Vol. I (1953) at p. 392Google Scholar; Suy, E., ‘Les golfes et les baies en droit international public’, 54 Friedens-Warte (1957-1958) p. 101 et seq., at pp. 112–113Google Scholar; Colombos, op. cit. n. 36, at p. 162; McDougal, M.S. and Burke, W.T., The Public Order of the Oceans (1962) at pp. 444–445Google Scholar; Churchill, R.R. and Lowe, A.V., The Law of the Sea (1983) at p. 33Google Scholar; Westerman, G.S., The Juridical Bay (1987) at pp. 78–79Google Scholar. This latter author maintains that Art. 7 of the 1958 Geneva Convention, supra, n. 65, ‘codifies the customary rule in international law that an exception from the low-water baseline norm will only be made for bays the coasts of which belong to a single state.’

74. ICJ Rep. (1992) at pp. 745–746.

75. See especially Gidel, op. cit. n. 36, at pp. 595–596.

76. See for example Brownlie, I., Principles of Public International Law, 4th edn. (1990) at p. 191.Google Scholar

77. On this question, see among others ‘Les baies historiques’, op. cit. n. 36, at pp. 26–27; ‘Juridical Regime of Historic Waters, Including Historic Bays’, op. cit. n. 41, at pp. 20–21; Bouchez, L.J., The Regime of Bays in International Law (1964) at pp. 173 and 198Google Scholar; Blum, Y.Z., Historic Titles in International Law (1965) at p. 269 et seq.Google Scholar

78. See among others: Giuliano, M., I diritti e gli obblighi degli Stati (1956) at pp. 253–254Google Scholar; Malek, loc. cit. n. 36, at pp. 169–170; Strohl, M.P., The International Law of Bays (1963) at p. 371 et seq., and 405Google Scholar; Bouchez, op. cit. n. 77, at p. 116 et seq., and 303–305; Verzijl, op. cit. n. 36, at p. 590 et seq. These authors usually require a prior agreement among the coastal States.

79. See Art. 3 of the 1982 UN Convention, supra, n. 67. Although the Convention is not yet in force, the twelve-mile limit is widely considered to correspond to the customary law now in force.

80. See for example Strohl, op. cit. n. 78, at pp. 373 and 405; Bouchez, op. cit. n. 77, at p. 184 et seq., and 198; Verzijl, op. cit. n. 36, at pp. 592 and 595.

81. See for example Bouchez, op. cit. n. 77, at pp. 177–178. In its 1992 judgment, the Chamber of the World Court observed, in respect of the Gulf of Fonseca, that: ‘Account must be taken that the geographical situation of the Gulf, which underlies the juridical status of the waters, is such that mere delimitation without agreement on questions of passage and access would leave many political problems unsolved. It is not easy to conceive of a satisfactory final solution without the participation of all three States together in the creation of a suitable regime, whether or not including delimitation of separate areas of internal waters’ (ICJ Rep. (1992) at pp. 603–604.

82. Art. 5(1) of the 1958 Geneva Convention, supra, n. 65, and Art. 8(1) of the 1982 UN Convention, supra, n. 67.

83. Art. 5(2) of the 1958 Geneva Convention, supra, n. 65, and Art. 8(2) of the 1982 UN Convention, supra, n. 67.

84. See Art. 49 of the 1982 UN Convention, supra, n. 67. Art. 8(2) of the Convention, however, excludes archipelagic waters from the definition of internal waters.

85. Art. 6 of the Convention on the Continental Shelf, done at Geneva on 29 April 1958 (499 UNTS, p. 311 et seq.), states that, ‘in the absence of an agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea is measured.’ However, this provision was held not to correspond to customary law by the International Court of Justice in its 1969 judgment in the North Sea Continental Shelf cases (ICJ Rep. (1969) p. 1 et seq.). Art. 83 of the 1982 UN Convention, supra, n. 67, merely provides that failing an agreement ‘within a reasonable period of time’, the States concerned have to resort to the procedures for the settlement of disputes provided for in the Convention, and that, pending an agreement, those States, ‘in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.’ Similarly inconclusive provisions are laid down in Art. 74 in respect of the delimitation of the exclusive economic zone. The solution suggested in the text is based on Conforti, B., ‘Aspetti transitori della disciplina della zona economica esclusiva’, in Conforti, B., ed., La zona economica esclusiva (1983) p. 1 et seq., at p. 9 et seqGoogle Scholar. By the same author, see also Diritto internazionale, 4th edn. (1992) at pp. 253–254Google Scholar; ‘L'arrêt de la Cour internationale de justice dans l'affaire de la délimitation du plateau continental entre la Libye et Malta’, 90 RGDIP (1986) p. 316 et seq.Google Scholar

86. In the course of the proceedings before the Chamber, all three States agreed that the Gulf of Fonseca is a historic bay: see supra, section 2, nn. 30–32 and the corresponding text.

87. In the proceedings before the Chamber both El Salvador and Nicaragua denied that Honduras had any rights outside the closing line of the bay: see supra, section 2, nn. 30–32 and the corresponding text.

88. See ICJ Rep. (1992) at p. 757 et seq. According to Vice-President Oda: ‘In the light of the claims made in the post-war period by the Latin American States to a distance of 12 miles for the territorial sea, and given the universally agreed 12-mile limit to the territorial sea under the new regime of the law of the sea, the Gulf of Fonseca must now be deemed to be totally covered by the territorial sea of the three riparian States. It cannot, moreover, be disputed that the area which had previously been claimed by each of those States for the exercise of its police powers has been completely absorbed in the extended territorial sea in the Gulf.’ He added that future delimitation should be effected in accordance with Art. 15 of the 1982 UN Convention, supra, n. 67.

As for the coastal States' claims, however, mention must be made of the fact that both El Salvador and Nicaragua had claimed, since 1983 and 1979 respectively, a ‘territorial sea’ of 200 nautical miles, whereas only Honduras claimed, since 1965, a twelve-mile territorial sea: see Limits in the Seas, No. 36, 5th rev. (6 March 1985), National Claims to Maritime Jurisdiction.

89. On the possible meanings of the term ‘title’, see supra, n. 42.

90. For a detailed discussion of the writings on this subject see Gioia, op. cit. n. 38, at pp. 45–100; for an analysis of the elements of title to historic internal waters in the light of the practice of States See ibid., at pp. 859–937.

91. In its 1910 award in the North Atlantic Coast Fisheries case, the Permanent Court of Arbitration referred to ‘conventions and established usage’ as the possible bases for title to a historic bay: see supra, n. 50 and the corresponding text. In the absence of a convention, it would be difficult to deny that a unilateral ‘recognition’ could make the coastal State's claim opposable to the recognizing State. Although neither a convention nor a unilateral ‘recognition’ could turn the coastal State's claim into a right of territorial sovereignty erga omnes, they could reasonably be interpreted, in certain circumstances, as implying a renunciation on the part of the State concerned of the rights it enjoys, under general international law, in the area claimed by the coastal State. As the Permanent Court observed in 1910, ‘though a State cannot grant rights on the High Seas it certainly can abandon the exercise of its right to fish on the High Seas within certain definite limits’ {supra, n. 48, at p. 195). The same could be said as far as other rights, such as the right to navigate, are concerned.

92. Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Rep. (1984) p. 246 et seq., at p. 305.Google Scholar

93. In the dissenting opinion appended to the 1951 judgment in the Anglo-Norwegian Fisheries case, Judge Read stated: ‘The only convincing evidence of State practice is to be found in seizures, where the coastal State asserts its sovereignty over the waters in question by arresting a foreign ship and by maintaining its position in the course of diplomatic negotiation and international arbitration’ (ICJ Rep. (1951) at p. 191). As a statement of the necessary degree of effectiveness of the coastal State's claim, Judge Read's opinion is too restrictive: as will be seen later, in certain circumstances, the actual enforcement of the claim may not be necessary for the formation of title to a historic bay. But there can be little doubt that evidence of tacit consent on the part of a foreign State could not easily be found in the absence of the exercise of the coastal State's imperium vis-à-vis ships flying its flag, be it in the form of an actual ‘seizure’ or in the form of an order to leave the area claimed or to desist from prohibited activities.

94. Memorandum of 17 September 1973 prepared by Oxman, B.H., Assistant Adviser for Ocean Affairs of the US Department of State, 68 AJIL (1974) at pp. 107–108.Google Scholar

95. Fitzmaurice, G., ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’, 30 BYIL (1953) p. 1 et seq., at p. 30.Google Scholar

96. As seen above, the ambiguous language used by the Court could be interpreted in the sense diat, even if the Norwegian baselines had been illegal under general international law, they could be justified on the basis of an exceptional historic title (supra, n. 61). The Court observed, from a general point of view, that ‘the general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact.’ Moreover, in rejecting the UK's contention that ‘the Norwegian system of delimitation was not known to it and that the system therefore lacked the notoriety essential to provide the basis of a historic title enforceable against it,’ the Court added that: ‘The notoriety of the facts, the general toleration of the international community, Great Britain's position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway's enforcement of her system against the United Kingdom’ (ICJ Rep. (1951) at pp. 138–139).

97. See for example ICJ Pleadings, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Vol. I, Mémoire de la Tunisie, at pp. 7–8 and 105–106.Google Scholar

98. See for example, Panamanian Act No. 9 of 30 January 1959 dealing with the alleged ‘historic’ character of the Gulf of Panama: an English translation of this statute is in the US Department of State's Maritime Claims Reference Manual, Vol. II (1987) at pp. 330–331.Google Scholar

99. See for example ICJ Pleadings, Fisheries Case (United Kingdom v. Norway), Vol. II, Reply of the United Kingdom, at pp. 603–610.Google Scholar

100. Ibid., at p. 651.

101. The expression ‘acquisitive custom’ has been borrowed from Sperduti, G., ‘Sul regime giuridico dei mari’, 43 Rivista di diritto internazionale (1960) p. 58 et seq., at p. 72Google Scholar. Other writers sometimes refer to the concept of ‘special’, ‘regional’, or ‘local’ custom. These expressions are, however, misleading, inasmuch as they are usually employed to describe a ‘custom’ which creates rules binding on a limited number of States, i.e., a ‘custom’ which is extremely difficult, if not impossible, to distinguish from a tacit agreement, especially where it involves purely bilateral relations. The expression ‘local custom’ could, therefore, probably be employed to describe the nature of a ‘historic title’ whose only function were to derogate from the rules applicable to the delimitation of maritime areas between two States, such as the ‘historic title’ referred to in Art. 12(1) of the 1958 Geneva Convention (supra, n. 65) and in the corresponding Art. 15 of the 1982 UN Convention (supra, n. 67): the source of a historic right of delimitation is probably a tacit agreement deriving from the enforcement of a claim and the acquiescence of the State affected by such claim. But title to a historic bay is only ‘special’ ratione materiae, in the sense that it is the source of territorial sovereignty over an individual bay; ratione personarum, title to a historic bay is clearly erga omnes. It is precisely for this reason that general acquiescence, intended as consent on the part of all States, is not considered to be necessary for the formation of title to a historic bay.

102. The UK position in the Anglo-Norwegian Fisheries case is especially significant in this respect. The UK went as far as saying diat: ‘… when the usage has not merely continued a long time, but has also been expressly or by inference acquiesced in by most States, … a State, which has indeed objected but has confined its objection to a mere protest, may be held precluded from continuing to object to what has become part of the established legal order’ (supra, n. 99, at p. 653). It may be questioned, however, whether such a position was really consistent with the UK contention that ‘the international legal order is essentially derived from the consent of States’ (supra, n. 100): to speak of a ‘presumption of acquiescence’ when a State contents itself with a mere paper protest seems, indeed, little more than a petitio principii.

103. Loc. cit. n. 94.

104. See the passages in the 1951 judgment in the Anglo-Norwegian Fisheries case, quoted supra, n. 96.

105. In its 1982 judgment in the Libya/Tunisia Continental Shelf case, the International Court of Justice observed, in an obiter dictum, that: ‘historic titles must enjoy respect and be preserved as they have always been by long usage’ (ICJ Rep. (1982) at p. 72).

106. Loc. cit. n. 94.

107. Blum, op. cit. n. 77, at p. 269.

108. See ICJ Rep. (1992) at p. 746.

109. Blum, op. cit. n. 77, at p. 279. See also, for example Gidel, op. cit. n. 36, at p. 627.

110. For the view that multinational bays can be claimed as historic bays see among others: Strohl, op. cit. n. 78, at pp. 404–405; Bouchez, op. cit. n. 77, at pp. 173 and 198.

111. See 11 AJIL (1917) at pp. 700–701.

112. Ibid., at p. 701.

113. Idem.

114. This aspect of the 1917 judgment was rightly criticized by a well-known contemporary commentator, who pointed out that, if the basis of title was to be the tacit consent of foreign States to the coastal States' claim, then ‘all other circumstances … can simply give the reason of such an agreement and explain or confirm its existence’ (Anzilotti, D., ‘Baie storiche, loro caratteri, rapporti tra gli Stati costieri’ [1917], in Scritti di diritto internazionalepubblico, Vol. I (1956) p. 723 et seq., at pp. 724–725; author's translation). As pointed out above, geographical factors and ‘vital interests’ are not technically elements of title to a historic bay: once the coastal State's claim has met with the ‘acquiescence’ or ‘toleration’ of the international community, the question of what was the geographical configuration of the bay and the question of whether or not the interests of the coastal State(s) were really ‘vital’ become logically irrelevant.Google Scholar

115. The 1917 judgment has been quoted by some writers as a relevant precedent for the doctrine of so-called ‘vital bays’: see for example Gidel, op. cit. n. 36, at p. 629; Bourquin, loc. cit. n. 40, at p. 50. In effect, in another passage of the judgment, the Court did refer to the Gulf of Fonseca as ‘a historic or vital bay’: see 11 AJIL (1917) at p. 717; but the question is really one of definition. On the origin of the doctrine of ‘vital bays’ and on its present relevance in the light of the practice of States see Gioia, op. cit. n. 38, at pp. 36–45 and 924–937 respectively.

116. ICJ Rep. (1992) at p. 593.

117. Ibid., at p. 601.

118. See Supra, section 3.1, n. 56 and the corresponding text.

119. See 11 AJIL (1917) at p. 701.

120. See ibid., at p. 709.

121. Anzilotti, loc. cit. n. 114, at p. 727 (author's translation).

122. ICJ Rep. (1992) at p. 604.

123. Idem.

124. See supra, section 2, n. 28 and the corresponding text.

125. See 11 AJIL (1917) at pp. 705 and 715 respectively. For the view that the Court had found that the waters of the Gulf were territorial waters, see among others Gidel, op. cit. n. 36, at p. 627; Malek, Ioc. cit. n. 36, at pp. 147–148 and 169–170; ‘Les baies historiques’, op. cit. n. 36, at p. 27.

126. ICJ Rep. (1992) at p. 592.

127. Ibid., at pp. 592–593.

128. supra, n. 10.

129. ICJ Rep. (1992) at pp. 604–605.

130. Supra, n. 2.

131. ICJ Rep. (1992) at p. 593.

132. ICJ Rep. (1982) at p. 74.

133. See ICJ Rep. (1992) at pp. 588–589.

134. While it may be that the drawing of a baseline was not necessary at the time when bays were usually claimed as ‘territorial’, the same is no longer true since the time when general customary law has definitively allowed for the drawing of straight baselines across the mouths of bays. As a consequence, even assuming that full sovereignty over the whole Gulf of Fonseca had been acquired by the three coastal States before, or as a result of, the 1917 judgment, its waters could not have been included, in 1992, in internal waters on the basis of a historic title unless the coastal States had in fact adopted a straight baseline for the purpose of measuring the territorial sea outside the Gulf. On this question, see the more detailed analysis in Gioia, op. cit. n. 38, at pp. 881–886.

135. See supra, section 4.2, n. 123 and the corresponding text. The Chamber observed, in this respect, that it had ‘difficulty in understanding how, if this line is the Gulfs ocean limit, it can escape being also the baseline for whatever regime lies beyond it’ (ICJ Rep. (1992) at p. 604). It further observed that: ‘There can be no serious doubt that the closing line of a historic bay is the baseline of the territorial sea. To hold otherwise would be incompatible with the legal status of a bay’ (ibid., at p. 607). But what seems really difficult to understand is how the waters of a bay can ever become internal waters if the coastal States do not agree on the drawing of a baseline across its mouth.

136. 11 AJIL (1917) at pp. 709–712. One of the passages quoted in the text has been taken from a revised translation of the judgment, which was quoted by the Chamber in the 1992 judgment: see ICJ Rep. (1992) at p. 599 (para. 400).

137. For similar criticism see Anzilotti, loc. cit. n. 114, at p. 728.

138. For an analysis of State practice and of relevant precedents on this question, see recently Nesi, G., ‘Uti possidetis juris e delimitazioni marittime’, 74 Rivista di diritto internazionale (1991) p. 534 et seq.Google Scholar

139. ICJ Rep. (1992) at p. 589.

140. Ibid., at pp. 599–600.

141. ‘The Chamber, accordingly, sees the Judgment of 1917 as using the term condominium, or ‘co-ownership’, to describe what it regards as the legal result where three States jointly inherited by succession waters which for nearly three centuries had been under the single sway of the State from which they were the heirs; and in which waters there were no maritime administrative boundaries at the time of inheritance, at 1821 or indeed at the end of the Federal Republic of Central America in 1839’ (ICJ Rep. (1992) at p. 598).

142. ICJ Rep. (1992) at p. 598.

143. On this question see among others: Oppenheim, op. cit. n. 72, at p. 554; Giuliano, op. cit. n. 78, at p. 88 et seq.; Jennings, R.Y., The Acquisition of Territory in International Law (1963) at p. 6 et seq.Google Scholar; Brownlie, op. cit. n. 76, at pp. 132–133.

A different question is, of course, that of the ‘determination of the location in detail of the frontier line’ between two or more neighbouring States: as Brownlie rightly puts it, this question is ‘distinct from the issue of title’ (op. cit. n. 76, at p. 124). This question is left, in principle, to the agreement of the States concerned. In the absence of such an agreement, it is arguable that general customary law provides for a special body of rules: in this respect, the uti possidetis rule may play a role, at least when it is a question of the dissolution of a colonial empire; it is also in this respect that the question of ‘succession’ in boundary treaties may arise, but there is never a ‘succession’ in respect of sovereignty. The term ‘State succession’ is itself a misleading private law analogy, since, in the international legal order, it refers both to the fact of a change of sovereignty and to its legal effects, and irrespective of whether or not such effects really consist in a transmission of rights and duties from one State to another or in the acquisition of new rights and duties on the part of the States concerned: for a more detailed discussion of this question see Gioia, A., ‘Successione internazionale tra Stati’, 43 Enciclopedia del diritto (1990) p. 1407 et seq.Google Scholar

144. ICJRep. (1992) at p. 598.

145. Ibid., at p. 597. The Chamber observed that this second situation might more aptly be defined as ‘co-imperium’.

146. It may be interesting to mention, in this respect, the peculiar conception of ‘closed seas’, or ‘regional seas’, which had been advanced in the past by some Soviet writers and, perhaps, by the Soviet Government itself. According to this conception, not only the Black Sea, but also the Baltic Sea and the Sea of Ochotsk were to be considered as subject to the exclusive jurisdiction of their respective coastal States. It may be doubted, however, that such a conception was equivalent to a claim of full territorial sovereignty: see among others de Hartingh, F., Les conceptions soviétiques du droit de la mer (1960) at pp. 27–30Google Scholar; Butler, W.E., The Soviet Union and the Law of the Sea (1971) at p. 116 et seq.Google Scholar; Solodovnikoff, P., La navigation maritime dans la doctrine et la pratique soviétiques (1980) at p. 136 et seqGoogle Scholar. On this question, see Part IX of the 1982 UN Convention (see supra, n. 67), dealing with ‘enclosed or semi-enclosed seas’.

147. ICJ Rep. (1992) at p. 597. On the conventional nature of a local ‘custom’, see supra, n. 101.

148. For a more detailed discussion of the intertemporal aspects of the formation of historic titles see Gioia, op. cit. n. 38, at pp. 45–63 and 841–847.

149. ICJ Rep. (1992) at p. 600.

150. See supra, section 3.1, n. 46 and the corresponding text.

151. It is difficult to agree, in this respect, with Vice-President Oda's dissenting opinion: Vice-President Oda seems to have had some doubts as to the fact that the Gulf of Fonseca had been ‘in its entirety (as a bay) within the territorial jurisdiction of a single riparian State’ prior to 1821 or 1839, because ‘in 1821 or 1839, there did not at the time exist any concept of a bay defined as a united body of waters in terms of geographical features and the applicable legal status’ (ICJ Rep. (1992) at p. 753). But the fact that the legal concept of a ‘bay’ did not exist at that time does not mean that bodies of water lying intra fauces terrae were not placed in a special position as far as the acquisition of territorial sovereignty was concerned: on the contrary, State practice clearly showed that the ordinary rule on the measurement of the territorial sea was not applicable to such bodies of water. As for legal doctrine, the view that ‘diverticula maris’ were subject to ‘occupation’ dates back, at least, to Grotius, H., De jure belli ac pacis libri tres [1625], Molhuysen, P.C., ed., Lugduni Batavorum (1919) at p. 157Google Scholar (Book I, Chapter III, viii). See also ibid., Grotius’ Mare liberum [1633] (1916) at pp. 36–37. All that can be said is that, at that time, the concept of the baseline of the territorial sea, in the modern sense, was unknown, and that such bodies of water were wholly included in the territorial sea.

152. As seen above, these rules never succeeded in acquiring the character of general customary rules: see supra, section 3.2, n. 63 and the corresponding text. However, such rules were in force among the States who had ‘recognized’ their application in their mutual relations, on the basis of a ‘special custom’ in the nature of a tacit convention.

153. In this sense, see Vice-President Oda's dissenting opinion: supra, n. 88.

154. Supra, 76. As seen above, both provisions refer to the possibility of derogating from the equidistance rule on the basis of a historic title or of other special circumstances, but, according to Vice-President Oda, no such historic titles or special circumstances had been advanced by either El Salvador or Honduras: see ICJ Rep. (1992) at p. 759. On the nature of such ‘historic titles’, see Supra, n. 101.

155. See supra, section 2, n. 20 and the corresponding text.

156. In this sense, see Vice-President Oda's dissenting opinion: supra, n. 88, at p. 759.

157. The Chamber observed, in this respect, that: ‘The existence of the joint sovereignty in all that area of waters other than those subject to the treaty or customary delimitation means that Honduras has existing legal rights … in the Gulf waters up to the bay closing line, subject of course to the equivalent rights of El Salvador and Nicaragua’ (ICJ Rep. (1992) at p. 606).

158. ICJ Rep. (1992) at p. 603.

159. Ibid., at p. 606.

160. See supra, section 3.3.

161. See supra, section 5.2.

162. See for example, the dictum by the International Court of Justice quoted supra, n. 39.

163. Supra, n. 85.

164. See supra, n. 85.

165. On this question see for example Conforti, op. cit. n. 85.

166. See supra, n. 85.

167. See especially the 1984 judgment in the Gulf of Maine case, supra, n. 92, which seems to contain the best account of the law applicable to maritime delimitations as developed by the Court.

168. As for the Chamber's opinion in this respect see infra, n. 173.

169. See supra, section 3.3, n. 85 and the corresponding text.

170. In this respect, see Vice-President Oda's dissenting opinion: ICJ Rep. (1992) at pp. 760–761.

171. See Arts. 61 and 62 of the 1982 UN Convention, supra, n. 67, which are referred to in Art. 70.

172. See ICJ Rep. (1992) at pp. 607–608.

173. See ibid., at pp. 608 and 617. The Chamber observed, in particular, that ‘thus must be so, both in respect of continental shelf rights belonging ipso jure to the three coastal States, and in respect of an exclusive economic zone which requires proclamation’ (ibid., at p. 608).

174. See ibid., at 608–609 and 617.

175. Ibid., at p. 607.

176. Ibid at p. 607.

177. See ibid., at p. 751.

178. See Supra, section 2, n. 29 and the corresponding text.

179. ICJ Rep. (1992) at p. 600.

180. See supra, n. 7. The Chamber, therefore, concluded that its judgment was nor res judicata for Nicaragua: see ICJ Rep. (1992) at p. 610.

181. See supra, section 1, n. 9 and the corresponding text.