INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICATION FOR REVIEW OF JUDGEMENT
No. 158 OF THE UNITED NATIONS
ADMINISTRATIVE TRIBUNAL

(REQUEST FOR ADVISORY OPINION)

ORDER OF 14 JULY 1972

1972

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE DE REFORMATION DU JUGEMENT
N® 158 DU TRIBUNAL ADMINISTRATIF
DES NATIONS UNIES

(REQUÊTE POUR AVIS CONSULTATIF)

ORDONNANCE DU 14 JUILLET 1972
Official citation:
Application for Review of Judgement No. 158 of
the United Nations Administrative Tribunal, Order
of 14 July 1972, L.C.J, Reports 1972, p. 9.

Mode officiel de citation:

Demande de réformation du jugement n° 158 du
Tribunal administratif des Nations Unies, ordonnance
du 14 juillet 1972, C.I.J. Recueil 1972, p. 9.

Sales number 3 6 5
N° de vente:

{4 JULY 1972

ORDER.

APPLICATION FOR REVIEW OF JUDGEMENT No. 158
OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL

(REQUEST FOR ADVISORY OPINION)

DEMANDE DE REFORMATION DU JUGEMENT N° 158
DU TRIBUNAL ADMINISTRATIF DES NATIONS UNIES

(REQUETE POUR AVIS CONSULTATIF)

14 JUILLET 1972

ORDONNANCE
INTERNATIONAL COURT OF JUSTICE

1972 YEAR 1972
14 July
General List
No. 57 14 July 1972

APPLICATION FOR REVIEW OF JUDGEMENT
No. 158 OF THE UNITED NATIONS
ADMINISTRATIVE TRIBUNAL

(REQUEST FOR ADVISORY OPINION)

ORDER

Present: President Sir Muhammad ZAFRULLA KHAN; Vice-President
AMMOUN; Judges Sir Gerald FITZMAURICE, PADILLA NERVO,
FORSTER, GROS, BENGZON, PETREN, LACHS, ONYEAMA, DILLARD,
IGNACIO-PINTO, DE CASTRO, Morozov, JIMENEZ DE ARECHAGA;
Registrar AQUARONE.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 66, paragraph 2, of the Statute of the Court,
Makes the following Order:

Whereas, on 20 June 1972, the Committee on Applications for Review

of Judgements of the Administrative Tribunal of the United Nations
adopted the following decision:

4
10 APPLICATION FOR REVIEW (ORDER 14 VII 72)

“The Committee on Applications for Review of Administrative
Tribunal Judgements has decided that there is a substantial basis
within the meaning of Article 11 of the Statute of the Administrative
Tribunal for the application for the review of Administrative Tri-
bunal Judgement No. 158, delivered at Geneva on 28 April 1972.

Accordingly, the Committee requests an advisory opinion of
the International Court of Justice on the following questions:

1. Has the Tribunal failed to exercise jurisdiction vested in it as
contended in the applicant’s application to the Committee on
Applications for Review of Administrative Tribunal Judgements
(A/AC.86/R.59)?

2. Has the Tribunal committed a fundamental error in procedure
which has occasioned a failure of justice as contended in the
applicant’s application to the Committee on Applications for Re-
view of Administrative Tribunal Judgements (A/AC.86/R.59)?”

Whereas certified true copies of the English and French texts of the
aforesaid decision were transmitted to the Court by a letter of the Secre-
tary-General of the United Nations dated 28 June 1972 and filed in the
Registry on 3 July 1972;

Whereas the Secretary-General has stated in his letter:

“as required by paragraph 2 of Article 11 of the Statute of the United
Nations Administrative Tribunal, I shall arrange to transmit to the
Court any views which the applicant to the Committee on Applications

. for Review of Administrative Tribunal Judgements may wish to
submit”,

THE COURT

Fixes 20 September 1972 as the time-limit within which written state-
ments may be submitted in accordance with Article 66, paragraph 2, of
the Statute of the Court;

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this fourteenth day of July, one thousand
nine hundred and seventy-two.

(Signed) ZAFRULLA KHAN,
President.

(Signed) S. AQUARONE,
Registrar.


843

DÉCLARATION DE M. SHI

[Traduction]

Je me range aux côtés de la majorité de la Cour quand celle-ci estime
ne pas pouvoir trouver en l'espèce de base de compétence prima facie
pour indiquer les mesures conservatoires sollicitées par le demandeur.

Je suis pourtant d’avis que, face à la situation d’urgence créée par le
drame humain qu’expriment les pertes en vies humaines et les souffrances
causées par l'emploi de la force en Yougoslavie et contre celle-ci, la Cour
aurait dû favoriser le maintien de la paix et de la sécurité internationales
dans la mesure où ses fonctions judiciaires l’y autorisent.

L'action de la Cour aurait été pleinement justifiée en droit si, dès
qu'elle a été saisie de la part du demandeur de sa requête en indication de
mesures conservatoires, et indépendamment de son éventuelle conclusion
quant à sa compétence prima facie dans l'attente de sa décision définitive,
elle avait lancé un appel de caractère général aux Parties pour leur
demander d’agir conformément aux obligations leur incombant en vertu
de la Charte des Nations Unies et de toutes les autres règles du droit
international intéressant la situation, y compris le droit international
humanitaire, et leur demander à tout le moins de s'abstenir d'aggraver ou
étendre leur différend. A mon sens, il n’y a rien dans le Statut ni dans le
Règlement de la Cour qui interdise à celle-ci d’agir de cette façon. Aux
termes de la Charte, la Cour est après tout le principal organe judiciaire
de Organisation des Nations Unies, son Statut faisant partie intégrante
de la Charte; et, sous l'effet des buts et des principes de ladite Charte, y
compris son chapitre VI (relatif au règlement pacifique des différends), il
a été attribué un rôle à la Cour dans le cadre général de l'Organisation
des Nations Unies aux fins du maintien de la paix et de la sécurité inter-
nationales. I] ne fait aucun doute que l’appel de caractère général dont je
parle relève implicitement des pouvoirs impartis à la Cour dans l'exercice
de ses fonctions judiciaires. Ayant aujourd’hui statué définitivement sur
la requête du demandeur, la Cour n’a pas saisi l’occasion qui lui était
donnée d'apporter le concours qu’elle aurait dû au maintien de la paix et
de la sécurité internationales au moment où ce concours est on ne peut
plus indispensable.

En outre, dans la lettre qu’il a adressée au président et aux membres de
la Cour, l’agent de la Yougoslavie a dit ceci:

«Considérant le pouvoir conféré à la Cour aux termes du para-
graphe | de l’article 5 de son Règlement, et compte tenu de l’extréme
urgence de la situation née des circonstances décrites dans les de-
mandes en indication de mesures conservatoires, je prie la Cour de bien
vouloir se prononcer d'office sur les demandes présentées ou de fixer
une date pour la tenue d’une audience dans les meilleurs délais.»

21
LICÉITÉ DE L'EMPLOI DE LA FORCE (DECL. SHI) 844

Dans une affaire très récente, l'affaire LaGrand, la Cour, sur la requête
de l'Etat demandeur et en dépit des objections de Etat défendeur, a
décidé d'exercer le pouvoir qui lui est ainsi conféré par le paragraphe 1 de
l'article 75 de son Règlement sans entendre l'Etat défendeur, ni par écrit
ni oralement (ordonnance du 3 mars 1999, CIJ. Recueil 1999, p. 13,
par. 12, et p. 14, par. 21). Par opposition, en l’espèce, la Cour n’a eu
aucun geste positif à la suite de la requête similaire formulée par l'agent
de la Yougoslavie dans une situation dont le caractère d’urgence était
même beaucoup plus prononcé que dans l'exemple que Je cite.

Ce sont ces motifs qui m'ont obligé à voter contre le paragraphe 1 du
dispositif de la présente ordonnance.

(Signé) Sui Jiuyong.

22


                                                                                1176

             DÉCLARATION DE M. LE JUGE GEVORGIAN

[Traduction]

   Clarification concernant le paragraphe 49 de l’ordonnance — Lien entre
l’article 4 de la convention de Palerme et les principes de droit international qui y
sont visés — Immunités ratione personae découlant du principe de l’égalité
souveraine des Etats.

   1. Je souscris aux conclusions et raisonnement exposés dans l’ordon-
nance. J’estime néanmoins nécessaire de préciser mon point de vue sur le
lien entre l’article 4 de la convention de Palerme et les principes de droit
international qui y sont visés.
   2. Aux termes du premier paragraphe de cet article, « [l]es Etats Parties
exécutent leurs obligations au titre de la présente Convention d’une manière
compatible avec les principes de l’égalité souveraine et de l’intégrité territo-
riale des Etats et avec celui de la non-intervention dans les aﬀaires inté-
rieures d’autres Etats ». Au paragraphe 49 de l’ordonnance, la Cour a
considéré que cette disposition « n’appara[issait] pas créer de nouvelles
règles concernant les immunités des personnes de rang élevé dans l’Etat ou
incorporer des règles de droit international coutumier concernant de telles
immunités ». Ce faisant, elle ne dit pas, selon moi, que les règles d’immunité
de juridiction pénale étrangère des représentants de l’Etat ne découlent pas
des principes mentionnés à l’article 4 de la convention de Palerme. C’est du
reste précisément l’inverse qui est vrai : ce type d’immunités a ses racines
dans le principe de l’égalité souveraine. Comme l’a noté la Commission du
droit international dans son commentaire de l’article 4 des projets d’article
sur l’immunité de juridiction pénale étrangère des représentants de l’Etat
(concernant la portée de l’immunité ratione personae), « l’immunité
ratione personae … a trait … à la protection de l’égalité souveraine de
l’Etat » (Commission du droit international, paragraphe 6 du commentaire
du projet d’article 4, adopté provisoirement à la soixante-cinquième ses-
sion, Nations Unies, doc. A/68/10, p. 69). La Cour est parvenue à une
conclusion similaire en ce qui concerne les immunités de l’Etat 1.

  1      « La Cour considère que la règle de l’immunité de l’Etat joue un rôle important en
      droit international et dans les relations internationales. Elle procède du principe de
      l’égalité souveraine des Etats qui, ainsi que cela ressort clairement du paragraphe 1
      de l’article 2 de la Charte des Nations Unies, est l’un des principes fondamentaux de
      l’ordre juridique international. Ce principe doit être considéré conjointement avec celui
      en vertu duquel chaque Etat détient la souveraineté sur son propre territoire, souverai-
      neté dont découle pour lui un pouvoir de juridiction à l’égard des faits qui se produisent
      sur son sol et des personnes qui y sont présentes. Les exceptions à l’immunité de l’Etat
      constituent une dérogation au principe de l’égalité souveraine. L’immunité peut consti-
      tuer une dérogation au principe de la souveraineté territoriale et au pouvoir de juridic-
      tion qui en découle. » (Immunités juridictionnelles de l’Etat (Allemagne c. Italie ; Grèce
      (intervenant)), arrêt, C.I.J. Recueil 2012 (I), p. 123-124, par. 57.)

                                                                                32

         immunités et procédures pénales (décl. gevorgian)             1177

   3. Par conséquent, la considération susmentionnée exprimée au para-
graphe 49 renvoie, selon moi, non pas au lien entre immunités et égalité
souveraine, mais à la relation entre les principes de droit international
visés à l’article 4 de la convention de Palerme et la convention elle-même.
C’est donc sous cet angle que je parviens en l’espèce moi aussi à la conclu-
sion, telle que formulée au paragraphe 49, que le diﬀérend allégué dont la
Guinée équatoriale a saisi la Cour « n’a pas trait à la manière dont la
France a exécuté ses obligations au titre des articles 6, 12, 14 et 18 de la
convention » de Palerme.

                                             (Signé) Kirill Gevorgian.

                                                                         33


732

DISSENTING OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs
I. INTRODUCTION. DISSENT IN RESPECT OF THE LEGAL SITUATION OF
THE MARITIME SPACES OF THE GULF OF FONSECA 1-6
II. “Bay” or “Historic BAY” : LEGAL CONCEPTS UNDER THE LAW OF
THE SEA 7-26
1. The legal status of a bay towards the turn of this century 7-13
2. The concept of a bay throughout the codification process of
the law of the sea 14-2]
(i) The 1930 League of Nations Codification Conference 14-18
(ii) The United Nations Conferences on the Law of the Sea 19-21
3. The contemporary concept of a bay or historic bay: the legal
status of it being internal waters of a single riparian State 22-26
II]. THE Term “Historic Bay” AS MISAPPLIED TO THE GULF OF
FONSECA IN THE 1917 JUDGMENT OF THE CENTRAL AMERICAN
Court OF JUSTICE AND IN THE PRESENT JUDGMENT 27-34
1. Impact of the misapplication of the term “historic bay” in
the 1917 Judgment 27-31
2. The 1917 Judgment re-examined 32-34
IV. THE LEGAL STATUS OF THE WATERS OF THE GULF OF FONSECA AS
MISCONCEIVED IN THE 1917 JUDGMENT AND IN THE PRESENT
JUDGMENT 35-44
V. THE TRUE LEGAL STATUS OF THE WATERS OF THE GULF OF
FONSECA: THE WATERS OF THE GULF OF FONSECA CONSISTING OF
THE TERRITORIAL SEAS OF EACH OF THE RIPARIAN STATES 45-50
VI. THE RIGHTS OF HONDURAS WITHIN AND OUTSIDE THE GULF OF
FONSECA 51-55
(i) Within the Gulf 51-52
(ii) Outside the Gulf 52-55

385
733 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

I. INTRODUCTION. DISSENT IN RESPECT OF THE LEGAL SITUATION
OF THE MARITIME SPACES OF THE GULF OF FONSECA

1. I regret that I am unable to share the view of the Chamber with
regard to the legal situation of the maritime spaces within and outside the
Gulf of Fonseca. My dissent is a result of my understanding of the con-
temporary as well as the traditional law of the sea, an understanding
which seems to be greatly at variance with the views underlying the pres-
ent Judgment.

2. The Chamber defines the Gulf of Fonseca as “an historic bay”
(Judgment, para. 432 (1)). In my view, however, the Gulf of Fonseca is not
a “bay” as conceived in the law of the sea, since the concept of a “pluri-
State bay” which the Chamber employs to characterize the Gulf has no
existence as a /egal institution. Neither does the Gulf of Fonseca actually
fall into the category of a “historic bay”, despite what the Chamber
assumes.

3. The decision of the Chamber concerning the legal status of the
waters in the Gulf, reading that

“the waters of the Gulf... were... held in sovereignty by the Repub-
lic of El Salvador, the Republic of Honduras, and the Republic of
Nicaragua, jointly, and continue to be so held ... but excluding a
belt .. . extending 3 miles (1 marine league) from the littoral of each
of the three States, such belt being under the exclusive sovereignty of
the coastal State...” (ibid.)

seems to be totally unfounded. I believe, on the contrary, that the waters in
the Gulf of Fonseca off the shores of the three riparian States, El Salvador,
Honduras and Nicaragua, constitute, under general rules of the law of the
sea (that is, international law itself), the sum of the distinct territorial seas
of each respective State.

4. Under the rules of the law of the sea, the sea-waters adjacent to the
coasts of States are in principle territorial sea. Some coasts, satisfying cer-
tain geographical requirements concerning coastal configuration, form
under those rules a “bay”, the waters of which constitute “internal
waters”. It is, however, essential to note that the concept of a “bay” does
not immediately denote the legal status of the waters but is meant first to
specify the geographical circumstances which allow the waters therein to
be “internal waters” instead of territorial sea. The “historic bay” — a con-
cept which emerged only towards the end of the last century in parallel
with the new idea of giving special legal significance to the notion of a
“bay”, and a term used only since the beginning of this century — does not
exist in a régime sui generis, that is, a regime applying rules different from
those applicable to a normal “bay”. “Historic bays” are those bay-like fea-
tures (in a geographical sense) which, because of their greater width at the
mouth or their lack of penetration into the landmass, could not normally
be classified legally as bays but can for historical reasons be given the

386
734 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

same legal status as “bays”. The words “historic bay” are certainly not
meant to suggest that the legal status of the waters concerned is anything
other than that of “internal waters” of the coastal State, as in the case of a
normal (juridical) “bay”. Under the contemporary concept of the law of
the sea, the sea-waters adjacent to the coasts of States are either territorial
sea or, otherwise, internal waters. There cannot be any other category for
such offshore sea-waters!.

5. In this respect, I am afraid that the Chamber, in defining the Gulf of
Fonseca and the legal status of its waters, obscures the proper understand-
ing of the law of the sea. The concepts which the Chamber employs to
denominate the area of the Gulf of Fonseca, or the legal status of its
waters, are all, in differing degrees, extraneous to the law of the sea pre-
vailing for the past century and as it stands today. The traditional and cur-
rent tenets of the law of the sea, as I understand them, thus offer no
support to the considerations advanced by the Chamber, with the aid of
those terms, in defining the legal situation of the maritime spaces of the
Gulf.

' I must add here the newly emerging concept of archipelagic waters, which I put
aside for later comment (cf. para. 43 of this opinion).

2 Irefer specifically to the following expressions : “an historic bay, and. . . the waters
of it accordingly historic waters” (Judgment, para. 383), “the maritime belt in a pluri-
State bay” (para. 392), “the 3-mile maritime belts of exclusive jurisdiction” (para. 393),
“an historic bay that constitutes an enclosed sea entirely within the territory of a single
State” (para. 395), “an enclosed pluri-State bay” (ibid.), “an historic bay and therefore a
‘closed sea’” (ibid.), “historic waters . .. subject to a joint sovereignty of the three coastal
States” (para. 404), “pluri-State historic bay” (para. 412), “the littoral maritime belts
subject to the single sovereignty of each of the coastal States, but with mutual rights of
innocent passage” (ibid.), “internal waters subject to a special and particular régime, not
only of joint sovereignty but of rights of passage” (ibid. ), “the waters of the Gulf [being]
the subject of the condominium or co-ownership” (ibid. ), “internal waters in a qualified
sense” (ibid. ), “internal waters. . . subject to certain rights of passage” (ibid.), “the area of
joint sovereignty {in 1917]” (para. 413), “the 3-mile belt of exclusive jurisdiction enjoyed
by each of the States along its coast” (ibid.), “the joint sovereignty in all that area of
waters” (para. 414), “the 3-mile maritime littoral belt of exclusive jurisdiction within the
Gulf” (para. 415), “the littoral maritime belts of | marine league along the coastlines of
the Guif” (para. 416), “the inner littoral maritime belts. . . not territorial seas in the sense
of the modern law” (ibid.), “the internal waters of the coastal State, not being subject to
the joint sovereignty, and even though subject . . . to rights of innocent passage” (ibid. },
“a condominium of the waters of the Gulf” (para. 418), “the exclusive littoral maritime
belts . . . limited to 3 miles in breadth” (ibid.), “internal waters subject to a single, exclu-
sive sovereignty” (ibid.), “an historic bay” (ibid.), “the waters internal to [the] bay ...
subject to a threefold joint sovereignty” (ibid.), “the legal situation [being] one of joint
sovereignty” (para. 420).

387
735 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

6. To explain my view in full, it is necessary for me to begin with a
somewhat detailed outline of both the traditional and the contemporary
law of the sea relevant to the present case (Part II of this opinion). I will
then show why, in my opinion, the 1917 Judgment of the Central Ameri-
can Court of Justice, upon which the Chamber seems to rely heavily, was
seriously misguided in its application of the concept of a “historic bay” to
the Gulf. As a result of that Judgment, the status of the Gulf of Fonseca
has been misinterpreted by some scholars, and even misrepresented in
official documents of the United Nations (Part III). I shall then go on to
show how both the 1917 Judgment and the present Judgment are in error
in finding, where the legal status of the waters of the Gulf is concerned,
that 3-mile belts may be left to each riparian State while the central part
remains in condominium or joint ownership. The present Judgment
appears to me to misapply the concept of condominium and to misunder-
stand the concept of “historic waters” (Part IV). After that, ] shall expound
the legal status which I hold to be correctly applicable to the Gulf of
Fonseca, that is, as constituting the sum of the separate territorial seas of
the three riparian States (Part V). Lastly I shall consider what rights Hon-
duras, whose territorial sea is bottled up in the Gulf, may be entitled to in
the maritime spaces within and outside the Gulf (Part VI).

II. “Bay” or “Historic BAY” : LEGAL CONCEPTS UNDER THE
LAW OF THE SEA

1. The Legal Status of a Bay towards the Turn of this Century

7. The parallel régimes of the open seas, free from the control of any
State, and of the waters which lie under the territorial sovereignty of coas-
tal States — the territorial waters in the traditional sense —, are centuries
old and have not until recent times, when the concepts of the continental
shelf and the exclusive economic zone emerged, been placed in doubt.
The problem of the way in which the borders of these two parallel régimes
were to be drawn involved, as a preliminary issue, the question of the
breadth of the coastal maritime belt around or alongside the land. The rule
of the range of cannon-shot, which had prevailed in the last century, was
about to be replaced by some fixed limits when the régime for territorial
jurisdiction over coastal waters extending over a breadth of 1 marine
league was emerging in parallel with the 1878 Territorial Waters Jurisdic-
tion Act of Great Britain.

8. The legalconcept of a “bay” emerged only in parallel with this devel-
opment as an exception to the régime of | marine league territorial juris-
diction. While there would not have been any problem in a case where

388
736 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

opposite headlands at the mouth of a geographical bay were less than
2 marine leagues apart (even when its centre was at a greater distance than
1 marine league from either coast) some slightly wider distances between
the headlands, reflecting the real range of cannon-shot at that time, were
proposed as permitting the entire waters of a bay to be under the territorial
jurisdiction of a single riparian State.

9. In 1894 the Institut de droit international, under the Presidency of
Louis Renault and with the assistance of Thomas Barclay as Rapporteur,
adopted the following rules:

“Pour les baies, la mer territoriale suit les sinuosités de la côte,
sauf qu’elle est mesurée a partir d’une ligne droite tirée en travers de
la baie dans la partie la plus rapprochée de l’ouverture vers la mer, ou
Pécart entre les deux côtes de la baie est de douze milles marins de
largeur, à moins qu’un usage continu et séculaire n’ait consacré une
largeur plus grande.” (Règles sur la définition et le régime de la mer
territoriale, Art. 3, Annuaire de l’Institut de droit international, XIN,
1894-1895, p. 329.)

In the year that followed, the International Law Association (Thomas
Barclay being the Secretary of the Special Committee on Territorial
Waters) adopted the same provision, with the exception that the distance
of 12 miles would be replaced by 10 miles (International Law Association,
Report of the Seventeenth Conference, 1895, p. 109). These ideas are well
reflected by Oppenheim, who first published in 1905 his most well-known
treatise on international law:

“[Territorial Gulfs and Bays]

It is generally admitted that such gulfs and bays as are enclosed by
the land of one and the same riparian State, and whose entrance from
the sea is narrow enough to be commanded by coast batteries erected
on one or both sides of the entrance, belong to the territory of the
riparian State even if the entrance is wider than two marine leagues,
or six miles.” (L. Oppenheim, /nternational Law, Vol. I, ist ed., 1905,
p. 246, para. 191.)

The 10-mile rule was confirmed in the Award given in 1910 by the
Permanent Court of Arbitration in the North Atlantic Coast Fisheries
case (UNRIAA, Vol. XI, pp. 167, 199). I am suggesting not that the 10-mile
rule had then become established but that the concept of a bay was about
to be realized as constituting an exception to the 1-marine-league terri-
torial sea in the case of special configurations of the coast forming a geo-
graphical bay.

10. It is further important to note that a riparian State’s continued or
long-standing usage of the waters in a geographical bay was made a fur-
ther source of derogation from the rule based on a maximum width of
mouth, so that the whole of the waters in a bay characterized by such usage

389
737 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

could be placed, as a unity, under the territorial jurisdiction of the State in
question. Some national practice, involving a claim to territoriality over
certain bays on the ground of continued or long-standing usage, had
been reported. In the case of Delaware Bay in the United States (which is
10 miles across at its entrance and 40 miles long from its entrance to the
mouth of the Delaware River), Attorney-General Randolph, in 1793, ren-
dered (in the case of the capture of the British vessel Grange by a French
frigate) an opinion to the effect that the bay was within the jurisdiction of
the United States, and Secretary of State Jefferson took action accord-
ingly. As for Chesapeake Bay (which is 12 miles across at its entrance), its
status was considered in 1885 by the Second Court of Commissioners of
Alabama Claims in the case of the Alleganean, a vessel which had been
sunk in the waters of the bay by the Confederate forces, and the Court
held that this bay was entirely within the territorial jurisdiction of the
United States. In Regina v. Cunningham in 1859, Chief Justice Cockburn
held that the part of the sea in the Bristol Channel (the width of its mouth
being slightly more than 10 miles), where wounding of a seaman on board
the Gleaner had occurred, formed part of the County of Glamorgan. A
claim by Great Britain to Conception Bay in Newfoundland (which is
20 miles across at its entrance) was upheld in 1877 by the Privy Council in
the case of The Direct United States Cable Co. Ltd. v. The Anglo-American
Telegraph Company.

11. These four cases simply present examples of the practice whereby
States claimed exceptions to the geographical requirements governing a
bay on the basis of their historic exercise of authority. These examples of
national practice, among others, were reported in most of the leading
treatises of international law towards the turn of the last century. I
quote again, as one example, from Oppenheim’s 1905 work:

“[Territorial Gulfs and Bays]

Some writers maintain that gulfs and bays whose entrance is wider
than ten miles, or three and a third marine leagues, cannot belong to
the territory of the riparian State, and the practice of some States
accords with this opinion. But the practice of other countries,
approved by many writers, goes beyond this limit. Thus Great Britain
holds the Bay of Conception in Newfoundland to be territorial,
although it goes forty miles into the land and has an entrance fifteen
miles wide. And the United States claim the Chesapeake and Dela-
ware Bays, as well as other inlets of the same character, as territorial,
although many European writers oppose this claim.” (Op. cit., Vol. I,
1905, para. 191.)

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738 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

Those bays were given the name “historic bay”, probably for the first time,
in the 1910 Arbitral Award in the North Atlantic Coast Fisheries case
(UNRIAA, Vol. XI, pp. 167, 197). The term “historic bay” was found in
hardly any document prior to 1910.

12. Except as regards bays such as those listed above, the legal rule gov-
erning a bay-feature was well expressed by the opinion of the Institut de
droit international in 1894, which was partly quoted above, to the effect
that “[pJour les baies, la mer territoriale suit les sinuosités de la côte”. It
should also be noted that, according to Oppenheim (1905),

“{Non-territorial Gulfs and Bays]

Gulfs and bays surrounded by the land of one and the same ripar-
ian State whose entrance is so wide that it cannot be commanded by
coast batteries, and, further, all gulfs and bays enclosed by the land of
more than one riparian State, however narrow their entrance may be,
are non-territorial. They are parts of the Open Sea, the marginal belt
inside the gulfs and bays excepted.” (Op. cit., para. 192.)

13. To conclude, a geographical bay which was bordered by the land of
two or more riparian States could not, as one area, be accorded any spe-
cial status in the law of the sea; thus the waters inside such a bay were left
as being the maritime belt (the territorial sea) and the open sea (high seas).
One can hardly find any scholar towards the beginning of this century
who had ever argued the case of a “pluri-State bay”, to use the Chamber’s
term. In addition, while claims to the territoriality of a bay the mouth of
which spanned more than a certain fixed limit (say 10 miles) had been
made on grounds of immemorial usage, or for historical reasons, as the
examples given above indicate, it is certain that no such claim was ever, or
could have been, made in respect of any bay the coast of which was
divided among two or more States.

2. The Concept of a Bay throughout the Codification
Process of the Law of the Sea

(i) The 1930 League of Nations Codification Conference

14. What I explained above may also be verified by scrutinizing the
process of codification of the relevant provisions of the law of the sea at
the 1930 Conference for the Codification of International Law, convened
by the League of Nations, where the subject of territorial waters was one
of the three major items discussed. Prior to the Conference, Governments

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739 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

were requested to provide information on various points, such as inter alia
Point IV, “Determination of the Base Line for Measurement of the
Breadth of Territorial Waters”, and Point VIII, “Line of Demarcation
between Inland Waters and Territorial Waters” (Conference for the
Codification of International Law, Bases of Discussion, Vol. I], pp. 35
and 61).

15. Mr. Walther Schiicking, Rapporteur of the Committee of Experts
for the subject of “Territorial Waters”, had already in 1927 drawn up a
memorandum and a draft convention (Committee of Experts for the Pro-
gressive Codification of International Law, Report to the Council of the
League of Nations on the Questions which Appear Ripe for International
Regulation, 1927, pp. 29 and 39). The text of the draft convention,
amended by Mr. Schiicking in consequence of the discussions in the Com-
mittee of Experts and submitted to the Preparatory Committee in 1929,
stated inter alia:

“Article 4.
Bays.

In the case of bays which are bordered by the territory of a single
State, the territorial sea shall follow the sinuosities of the coast,
except that it shall be measured from a straight line drawn across the
bay at the part nearest to the opening towards the sea where the dis-
tance between the two shores of the bay is ten marine miles !, unless a
greater distance has been established by continuous and immemorial
usage. The waters of such bays are to be assimilated to internal
waters.

In the case of bays which are bordered by the territory of two or
more States, the territorial sea shall follow the sinuosities of the
coast.” (Conference for the Codification of International Law, Bases
of Discussion, Vol. II, p. 193.)

Mr. Schiicking had suggested the 10-mile length for the mouth of a bay but
had been prepared to recognize an exception in cases of continuous and
immemorial usage. He had conceived that the legal concept of a bay
would be applicable solely to a single-State bay. The “right of pacific
passage” would have been guaranteed only through the “territorial
sea” (Art. 7) but not a bay “assimilated to internal waters”.

16. In 1929, after examination of the replies and, presumably, of the
draft convention drawn up by Mr. Schiicking, the Preparatory Committee

for the Conference drafted Bases of Discussion for the use of the pro-
posed conference which read inter alia

! In the original draft of 1927 this distance was fixed at 12 miles, not 10 miles.

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DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

“ Limits of the Territorial Waters

Basis of Discussion No. 7

In the case of bays the coasts of which belong to a single State, the
belt of territorial waters shall be measured from a straight line drawn
across the opening of the bay. If the opening of the bay is more than

ten miles wide, the line shall be drawn at the nearest point to the
entrance at which the opening does not exceed ten miles.

Basis of Discussion No. 8

The belt of territorial waters shall be measured from a straight line
drawn across the entrance of a bay, whatever its breadth may be, if by
usage the bay is subject to the exclusive authority of the coastal State:
the onus of proving such usage is upon the coastal State.

Basis of Discussion No. 9

If two or more States touch the coast of a bay or estuary of which
the opening does not exceed ten miles, the territorial waters of each
coastal State are measured from the line of low-water mark along the
coast.

Basis of Discussion No. 18

The base line from which the belt of territorial waters is measured
in front of bays, ... forms the line of demarcation between inland
[now called internal waters] and territorial waters [now called territo-

rial sea].” (Conference for the Codification of International Law,
Bases of Discussion, pp. 45 and 63!.)

“Inland waters” would certainly have been differentiated from “territo-
rial waters” in the sense that the right of innocent passage of foreign ships
should be guaranteed only in the latter, as stated:

“ Foreign ships passing through territorial waters
Basis of Discussion No. 19

A coastal State is bound to allow foreign merchant ships a right of
innocent passage through its territorial waters . . .” (Ibid., p. 71.)

17. During the course of the Conference from 13 March to 12 April
1930, some delegations presented observations and amendments regard-

' The text of the Bases of Discussion was also quoted in Acts of the Conference for the
Codification of International Law, Vol. IL, p. 179, and it is only there that the titles are
given.

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741 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

ing those bases of discussion in the Second Committee (Territorial
Waters). A report adopted by the Second Committee on 10 April 1930
(with Mr. J. P. A. François as Rapporteur), disclosed an absence of agree-
ment as to the breadth of the territorial sea, and announced a failure to
conclude a convention on the territorial sea mainly for that reason!. It
read as follows:

“The absence of agreement as to the breadth of the territorial sea
affected to an even greater extent the action to be taken on the Second
Sub-Committee’s report. The questions which that Sub-Committee
had to examine are so closely connected with the breadth of the terri-
torial sea that the absence of an agreement on that matter prevented
the Committee from taking even a provisional decision on the arti-
cles drawn up by the Sub-Committee. These articles, nevertheless,
constitute valuable material for the continuation of the study of the
question, and are therefore also attached to the present report.” (Acts
of the Conference for the Codification of International Law, Vol. III,
p. 211.)

The draft articles proposed by the Second Sub-Committee, which though
not adopted were appended to the Report of the Committee itself, read:

“ Bays

In the case of bays the coasts of which belong to a single State, the
belt of territorial waters shall be measured from a straight line drawn
across the opening of the bay. If the opening of the bay is more than
ten miles wide, the line shall be drawn at the nearest point to the
entrance at which the opening does not exceed ten miles.” (/bid.,
Vol. IE, p. 217; see also Vol. I, p. 131.)

In parallel, the draft articles prepared by the First Sub-Committee were
provisionally approved by the Committee. In them it was stated that the

! It is only since the 1930 Codification Conference that the wording “territorial
seas” (which were often termed “territorial waters”) has been uniformly used to denom-
inate the coastal maritime belt (see Report of the Second Committee: Territorial Sea
(Rapporteur: Mr. Frangois), Appendix I, Art. 1, Observations; Acts, Vol. I, p. 126;
Vol. III, p. 213). The relevant passage reads:

“There was some hesitation whether it would be better to use the term ‘territorial
waters’ or the term ‘territorial sea’. The use of the first term, which was employed
by the Preparatory Committee, may be said to be more general and it is employed in
several international conventions. There can, however, be no doubt that this term is
likely to lead — and indeed has led — to confusion, owing to the fact that it is also
used to indicate inland waters, or the sum total of inland waters and ‘territorial
waters’ in the restricted sense of this latter term. For these reasons, the expression
‘territorial sea’ has been adopted.”

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742 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

“right of innocent passage” would be guaranteed to foreign commercial
vessels in a belt of sea called the “territorial sea”.

18. The draft articles did not, however, include any provision concern-
ing bays bordered by the land of two or more States. If, in these draft arti-
cles contained in the Report of the Committee, no rule or regulation was
suggested in regard to multi-State bays, this was doubtless because it stood
to reason that such cases would be amenable to the general rule whereby
the territorial sea of each riparian State is measured from that State’s own
coastline. Furthermore, the lack of a reference to a historic bay in those
draft articles was presumably due to the difficulty of generalizing histori-
cal elements that could have justified giving the status of a bay to certain
coastal configurations which would otherwise not be regarded as bays
because of their larger measurement at the mouth. Though this lack of
reference may not, admittedly, be interpreted as meaning that the concept
of a “historic bay” was denied, the fact remains that there was never any
suggestion that it could be applicable to a “pluri-State bay”.

(ii) The United Nations Conferences on the Law of the Sea

19. At the United Nations International Law Commission Mr. J. P. A.
Francois, nominated as Special Rapporteur on the subjects of the territo-
rial seas and of the high seas, making his first report in 1952 on the territo-
rial sea, proposed the same provision concerning a bay as that endorsed
by the 1930 Codification Conference (ILC Yearbook, 1952, IL p. 34).
Mr. François’s second report in 1953 followed the same lines (ILC Year-
book, 1953, EL, p. 56). Incorporating the suggestions made by the group of
experts on the geographical and technical aspects of the territorial sea,
Mr. Francois in his third report in 1954 submitted a more detailed propo-
sal in which, while the 10-mile width was maintained for a closing-line of a
bay, it was specified that the dimensions of a bay should not be smaller
than a semi-circle constructed with that closing-line as diameter
(ILC Yearbook, 1954, II, p. 4). The draft articles on the “Régime of the
Territorial Sea” prepared by the International Law Commission in 1955
provided for the first time for the detailed definition of a “bay”, the mouth
of which would not be more than 25 miles in width, taking into account the
then prevailing trend in favour of a 12-mile territorial sea (instead of a
3-mile limit), while the waters within a single-State bay would be con-
sidered “internal waters” (Art. 7, paras. 3 and 4; ILC Yearbook, 1955,
II, p. 36). It was also stated that “the provision laid down in paragraph 4
[concerning the 25-mile rule] [should] not apply to so-called ‘historical’
bays...” (Art. 7, para. 5). It may be added that the 1955 draft articles on
the “Régime of the High Seas” provided that there would, apart from the
high seas, be only territorial sea or internal waters of a State (Art. 1;

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743 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

ILC Yearbook, 1955, II, p. 21). The 1956 “Articles concerning the Law of
the Sea” followed those of 1955 (combining the two sets of draft articles),
except that the width of the mouth of a — juridical — bay was reduced to
15 miles (Art. 7, para. 3; ILC Yearbook, 1956, I, p. 268) because it was
recognized that the presumption of a 12-mile limit for the territorial sea
would at that time be difficult to maintain. This was the text of the draft
used as the basis for discussion at UNCLOS I.

20. At UNCLOS I in 1958, a distance of 24 miles as the limit for the
mouth of a bay was adopted as Article 7 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone on the basis of a recommenda-
tion included in a joint proposal submitted by the USSR, Bulgaria and
Poland (A/CONF.13/C.1/L.103). Although the Conference failed to fix
the limit of the territorial sea, the trend towards a 12-mile limit could not
be ignored and the mouth of a bay could not be fixed at a distance shorter
than twice the length of that limit. At the same time a proposal presented
by Japan to define the term “historic bays” as meaning

“those bays over which coastal State or States have effectively exer-
cised sovereign rights continuously for a period of long standing,
with explicit or implicit recognition of such practice by foreign
States” (A/CONF.13/C.1/L.104)

was withdrawn in favour of a proposal by India and Panama, recom-
mending that “the General Assembly should make appropriate arrange-
ments for the study of the juridical régime of historic waters including
historic bays” (A/CONF.13/C.1/L.158/Rev.1), which was adopted by
the Conference as a resolution on the “Régime of Historic Waters” !, The
“historic” bay was thus not defined in clear terms in the Convention,
which states in paragraph 6 of Article 7 (as suggested in the 1956 draft of
the International Law Commission), that “[t]he foregoing provisions
[relating to a bay] shall not apply to so-called ‘historic’ bays. . .”. A propo-
sal by the United Kingdom to insert a new paragraph reading that the
provisions concerning a bay “relate[s] only to bays the coasts of which
belong to a single State” (A/CONF.13/C.1/L.62) was adopted by

! In 1962, pursuant to the resolution adopted by UNCLOS I and General As-
sembly resolution 1453 (XIV) of 1959 the United Nations Secretariat prepared a note on
the “Juridical Régime of Historic Waters, including Historic Bays” (A/CN.4/143;
ILC Yearbook, 1962, II, p. 1), which it is not necessary to quote here.

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744 DISPUTE (EL SALVADOR/ HONDURAS) (DISS. OP. ODA)

28 votes to 21 with 20 abstentions and became paragraph 1 of Article 7 of
the 1958 Convention.

21. The subject of a “bay” was barely touched upon in UNCLOS HI.
The only proposal relating to bays was submitted by Colombia at the
fourth session in 1976 and was to the effect that the 24-mile rule of the bay
should “not apply to so-called ‘historic’ bays or to bays the coasts of which
belong to more than one State” (A/CONF.62/C.2/L.91). Colombia also
proposed another article stating

“2. A bay the coasts of which belong to two or more States and
which satisfies the requirements laid down in paragraph 1 of this
article [concerning the demonstration of the sole possession of
the waters of the bay continuously, peaceably and for a long time,
and the tacit acceptance of that situation by third States] shall be
regarded as historic only when there is agreement between the
coastal States to that effect.” (Ibid.)

There is no record indicating that this Colombian proposal was discussed
at the meetings of the Conference. In view of the fact that all the debates
in that session were considered to be informal negotiations and, for that
reason, not placed on record, there is no reason to think that that pro-
posal was not discussed: yet the texts which were successively prepared
by the Conference, such as ICNT (Informal Composite Negotiating Text)
(1977), ICNT/Rev.1 (1979), ICNT/Rev.2 (1980) and the Draft Conven-
tion (1980), were all identical to the relevant text in the 1958 Convention.
The provisions of the 1982 United Nations Convention on the Law of the
Sea concerning a bay remain practically identical to those of the
1958 Geneva Convention, except that they “do not”, instead of “shall not”
apply to “so-called ‘historic’ bays”.

3. The Contemporary Concept of a Bay or Historic Bay: the Legal
Status of It Being Internal Waters of a Single Riparian State

22. The contemporary law of the sea is as follows. A territorial sea, over

which the territorial jurisdiction of the coastal State extends for a 12-mile
distance!, is measured in principle from the baselines of the coast. The

1 The 12-mile rule is provided for in the 1982 United Nations Convention (Art. 3),
which may now properly be considered as having confirmed the norm.

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745 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

baselines for measuring the breadth of the territorial sea are in principle
the “normal baselines”, i.e., those that closely follow the configuration of
the coast. They can, however, be “straight baselines” in the exceptional
cases of “localities where the coastline is deeply indented and cut into, or
if there is a fringe of islands along the coast in its immediate vicinity”, and
of the “closing line” for a bay as specifically defined in terms of the
breadth of its mouth, its features and the degree of its landward penetra-
tion. The waters within such straight baselines of the territorial sea are
regarded as “internal waters of the State”. These principles are clearly
stated in the 1982 United Nations Convention on the Law of the Sea
(Arts. 3, 4, 7, 8 and 10), which are practically identical to the relevant pro-
visions of the 1958 Geneva Convention on the Territorial Sea and the
Contiguous Zone and may legitimately be considered as expressing cus-
tomary international law today. Immediate offshore sea-waters are thus
either territorial sea or internal waters, both included in the territory of the
coastal State but subjected to some conditions (in particular, the right of
innocent passage to be granted to foreign commercial vessels in the terri-
torial sea), but cannot be anything else’.

23. Inthe case of a “bay”, the waters within it are treated as an expanse
of “internal waters” and the territorial sea is measured from the bay’s clos-
ing-line as a baseline. That point has gone undisputed throughout the
development of the contemporary law of the sea since the 1930 Codifica-
tion Conference. As I must repeat, if there has been any uncertainty in this
respect, it relates only to the kind of features, geographically or histori-
cally, that could constitute criteria for classifying a particular coastal con-
figuration as a “bay”, hence as enclosing internal waters of the State where
the right of innocent passage is not granted.

24. It may be concluded that the simple outcome of this study of the
development of the law of the sea is that there did not and still does not (or,
even, cannot) exist any such legal concept as a “pluri-State bay” the waters
of which are internal waters. It is not surprising that no rule covering such
a pluri-State bay has ever been presented in international law. The very
concept of “internal waters”, which only appeared — under the term of
“inland waters” — in parallel with the fixing of the limit of the territorial
waters (sea), implies, as a norm, the enclosure or semi-enclosure of the
waters concerned within the embrace of a given jurisdiction. This element

1 We must also remain aware of the new concept of archipelagic waters, which may
not be directly relevant to the present case (cf. footnote 1, p. 734, above).

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746 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

of embracement is absent or disappears when the shores of a geographical
bay are so divided up between States as to render the criteria and rationale
of a legal bay incapable of fulfilment. This is tacitly confirmed by the
absence of any provision concerning the delimitation or division of inter-
nal waters either in the 1958 or the 1982 Conventions; the internal waters
of one State cannot abut the internal waters of another State.

25. Some exemptions from the geographical criteria normally required
for a (juridical) bay have been justified on historical grounds for certain
topographical features, and the contemporary law of the sea admits the
concept of a “historic bay”. The words used in the 1958 and 1982 Conven-
tions to the effect that the provisions defining a (single-State) bay “shall
not apply” or “do not apply” to “so-called ‘historic’ bays” (1982 Conven-
tion, Art. 10, para. 6) are meant to suggest that the geographical criteria
serving to define a bay for legal purposes, such as the width of the mouth
or the depth of penetration into the landmass, are not in those cases strict
conditions of “bayhood”.

26. I must mention two points. First, a bay whose shores are divided
among two or more States cannot be a bay in the legal sense of the Con-
ventions, that is to say, cannot even belong to the legal category to which,
in any event, “historic bays” do not conform!. Secondly, the waters of a
“historic bay” are nothing other than “internal waters”. I must recall that,
for the purpose of denoting the status of offshore waters, the only con-
cepts available under the law of the sea are “territorial sea” or “internal
waters” (the new concept of archipelagic waters excepted). In other
words, such concepts as “an historic bay, and. . . the waters of it are accor-
dingly historic waters” (Judgment, para. 383), “an historic bay that consti-
tutes an enclosed sea entirely within the territory of a single State”
(para. 395), “an historic bay and therefore a ‘closed sea’” (ibid.), “historic
waters ... subject to a joint sovereignty of the three coastal States”
(para. 404), “internal waters subject to a special and particular régime, not
only of joint sovereignty but of rights of passage” (para. 412), “the waters
of the Gulf [being] the subject of the condominium or co-ownership”

' I must add in this respect that some bays named “historic bays” in classical treatises
since early this century are now regarded as normal “bays” owing to the enlargement of
the distance criterion required for the closing-line of a bay from a rather narrow dis-
tance (say 10 miles) to 24 miles under the 1958 Convention on the Territorial Sea and the
1982 United Nations Convention (see para. 43 below).

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747 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

(para. 412), “internal waters in a qualified sense” (ibid.), “internal waters...
subject to certain rights of passage” (ibid), “the area of joint sovereignty
[in 1917]” (para. 413), “the joint sovereignty in all that area of waters”
(para. 414), “a condominium of the waters of the Gulf” (para. 418), “the
waters internal to [the] bay ... subject to a threefold joint sovereignty”
(ibid.), “the legal situation [being] one of joint sovereignty” (para. 420),
“the waters ... subject to the ... entitlement of all three States”
(para. 432 (1)) — all of which concepts are suggested by the present Judg-
ment to define the legal status of the waters of the Gulf — are in no way
indicative of that status.

III. THE TERM “Historic BAY” AS MISAPPLIED TO THE GULF OF FONSECA IN
THE 1917 JUDGMENT OF THE CENTRAL AMERICAN COURT OF JUSTICE AND IN
THE PRESENT JUDGMENT

I. Impact of the Misapplication of the Term “Historic Bay”
in the 1917 Judgment

27. The Gulf of Fonseca appeared for the first time on the legal stage
clothed as “a historic bay possessed of the characteristics of a closed sea”
in the 1917 Judgment of the Central American Court of Justice (trans.
AJIL, Vol. 11, p. 716). It was not until the rendering of that Judgment that
the Gulf of Fonseca began to be mentioned in any of the treatises of inter-
national law. Hardly any scholar of international law prior to 1917 had
thought that the Gulf of Fonseca, surrounded by three States, had become
a (juridical) bay, whether ordinary or historic, and was thus entitled to
some special legal status. (There was no mention of the Gulf of Fonseca
even in the eight volumes of Moore’s Digest of International Lawin 1906,
or The Sovereignty of the Sea, Fulton’s classic work, in 1911.) Even the term
“historic bay” itself seems never to have been employed in a judicial deter-
mination or a scholarly work prior to 1917, except in the 1910 Award of
the Permanent Court of Arbitration in the North Atlantic Coast Fisheries
case, in which the Tribunal

“recognize[d] that the conventions and established usages might be
considered as the basis for claiming as territorial those bays [single-
State bays, including Delaware Bay and others] which on this ground
might be called historic bays” (UNRIAA, Vol. XI, pp. 167, 197).

The Gulf of Fonseca, a bay bordered by the land of the three littoral States,

400
748 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

was certainly not uppermost in the minds of the members of the 1910 Arbi-
tral Tribunal.

28. In contrast, practically all scholars dealing with the law of the sea
after 1917 have been in accord in echoing the concept of a “historic bay”
employed in the 1917 Judgment solely to define the Gulf of Fonseca, as the
present Judgment admittedly notices (see paras. 383, 394). Yet the fact
must be faced that the authors of the treatises in question simply gave the
name “historic bay” to the Gulf of Fonseca, as a unique case in which the
coast belongs to two or more States, solely on the ground that the Central
American Court of Justice, in 1917, had passed a Judgment employing
that term. Having never suggested any specific régime for even a single-
State “historic bay”, they a fortiorinever contended that the rules or regu-
lations established for such a régime should apply to this bay surrounded
by three States. This is so even in the case of Oppenheim, since he picked
up that Gulf only in his third edition, published in 1920 (International
Law, 3rd ed., 1920, p. 344, para. 192, n. 4), referring to it as an exception to
“[non-territorial] gulfs and bays enclosed by the land of more than one
littoral State”. Fauchille in 1925 (Traité de droit international public, Vol. 1,
2nd Part, 8th ed., 1925, p. 308: in Bonfils’ Manuel de droit international
public edited by Fauchille (5th ed.) in 1908 the Gulf of Fonseca was not
mentioned at all); Jessup in 1927 (The Law of Territorial Waters and Mari-
time Jurisdiction, 1927, p.398); Wheaton in 1929 (Elements of International
Law, 6th English ed., 1929, p. 365: in his 5th English edition in 1916 no
mention was made of the Gulf of Fonseca); Gidel in 1934 (Le droit interna-
tional public de la mer, Vol. 111, 1934, p. 604), and others, all followed
Oppenheim. These scholars after 1917 who referred to the Gulf of Fon-
seca as a (juridical) bay never presented any justification for this label
outside the fact that the 1917 Judgment had so styled the Gulf. Their state-
ments thus carry little cumulative value.

29. Some United Nations documents supplied in preparation for
UNCLOS I in 1958 also referred to the Gulf of Fonseca as a “historic
bay”, though as a unique case of one bordered by the land of two or more
States. In the Memorandum entitled “Historic Bays” (A/CONF.13/1;
UNCLOS I, Official Records, Vol. I, p. 1) drawn up by the United Nations
Secretariat in 1957, this Gulf was the only example given in Part I,
Section I (“The Practice of States: Some Examples of Historic Bays”),
under sub-section B, “Bays the Coasts of Which Belong to Two or More
States”, but the explanations given therein did not go beyond a simple
reference to the 1917 Judgment. The Gulf similarly appeared again,
only with the explanation of the 1917 Judgment, in Part II, Section I
(“Legal Status of the Waters of Bays Regarded as Historic Bays”), under
sub-section B, “Historic Bays the Coasts of Which Belong to Two or More

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749 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

States !.” The writers of the United Nations documents seem to have given
that Gulf a somewhat special treatment without offering any sufficiently
convincing reasons, and did not suggest that the rules governing a “his-
toric bay”, if any, would apply in the particular case of pluri-State bays.
Although the application of the term “historic bay” was extended to the
altogether unique case of the Gulf of Fonseca, no rule was suggested for
pluri-State bays as such. This is not surprising, since a unique case cannot
be governed by the rules of a category: it requires the application of gen-
eral principles.

30. Likewise, in the present case, the two Parties and the intervening
State gave the name of “historic bay” to the Gulf of Fonseca simply
because the 1917 Judgment so called it. But they never proved any estab-
lished rules governing a “historic bay” bordered by the land of two or
more States, or even that a concept of a “historic bay” covering such a case
exists. The three States only concurred in maintaining that, because of its
alleged historical background as well as its geographical features, some
exceptional rules under international law should be applicable to the Gulf
of Fonseca. They did not share any clear picture of the Gulf in spite of the
common denomination of the term “historic bay”. They showed a total
lack of agreement or even of reciprocal understanding as to what elements
could constitute a “historic bay” and what really was the concept of a “his-
toric bay”. Each of these three States seemed to sketch its own image just
from the name “historic bay”.

31. The Chamber, in defining the legal status of the waters of the Gulf,
seems to depend greatly upon the 1917 Judgment of the Central American
Court of Justice, which it

“should take ... into account as a relevant precedent decision of a
competent court, and as, in the words of Article 38 of the Court’s
Statute, ‘a subsidiary means for the determination of rules of law’”
(Judgment, para. 403).

! The Gulf of Fonseca is also referred to in another United Nations document
prepared for UNCLOS I: “A Brief Geographical and Hydrographic Study of Bays
and Estuaries, the Coasts of Which Belong to Different States”, by Commander
R. H. Kennedy (A/CONF.13/15; UNCLOS I, Official Records, Vol. I, p. 198) which
does not require any explanation here.

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The Chamber, relying simply upon the 1917 Judgment, states that “[t]his
unanimous finding that the Gulf of Fonseca is an historic bay with the
character of a closed sea presents now no great problem” (para. 394) and
decides that “the Gulf of Fonseca is an historic bay...” (para. 432 (1)). It
is hardly necessary for me to repeat that, from the standpoint of the devel-
opment of the legal concepts of a bay or historic bay (as explained in
Part II, above), the Gulf of Fonseca cannot, under the law of the sea, fall
into the category of a bay or historic bay, the legal status of the waters of
which must be a united body constituting “internal waters” of a single
riparian State. By the same token, the Chamber’s decision that

“the waters [of the Gulf]... continue to be... held [in sovereignty by
the three littoral States, jointly],. . . but excluding a belt. . . extending
3 miles (1 marine league) from the littoral of each of the three States,
such belt being under the exclusive sovereignty of the coastal
State...” (Judgment, para. 432 (1))

is clearly incompatible with the Chamber's description of the Gulf as a
“historic bay”, which description cannot, a fortiori, be used to sustain that
decision. This point will be developed later in paragraph 38, below.

2. The 1917 Judgment Re-examined

32. How did the Central American Court of Justice proceed in order
to characterize the Gulf of Fonseca as “a historic bay possessed of the
characteristics of a closed sea” (trans. AJIL, Vol. 11, p. 716)? It simply
drew its conclusion on the basis of the replies given by each judge of that
Court in response to some questionnaires prepared in advance, among
which one question read:

“ Ninth question — Taking into consideration the geographic and
historic conditions, as well as the situation, extent and configuration
of the Gulf of Fonseca, what is the international legal status of that
Gulf?” (bid., p. 693.)

It is also noted that “[tlhe judges answered unanimously that [the Gulf of
Fonseca] is an historic bay possessed of the characteristics of a closed sea”
{ibid.). No ground except for these answers of the judges is to be found in
the 1917 Judgment which could justify the contention that the Gulf of
Fonseca was a “historic bay”, a concept hardly known to international
law except in relation to a number of (geographical) bays where the
authority of a single coastal State was for some historical reasons exer-
cised even beyond range of cannon-shot (such as Delaware Bay, the Bris-
tol Channel, etc.), and a term rarely used prior to the 1910 Award in the
North Atlantic Coast Fisheries case.

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751 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

33. Certainly the Central American Court of Justice did not demon-
strate why the concept of a “historic bay”, previously applied solely to
some single-State bays, should apply in 1917 to the unique case of the Gulf
of Fonseca, enclosed by more than one littoral State. It seems to have mis-
interpreted both the 1910 Award of the Permanent Court of Arbitration,
which used the term “historic bay” only in the cases of a single-State bay
referred to in many historical documents (as mentioned in paragraph 28
above), and Judge Drago’s dissenting opinion appended thereto, which in
this respect did not depart from the Award itself (UNRIAA, Vol. XI,
pp. 167, 203).

34. Does the fact that the five judges of the Central American Court of
Justice unanimously agreed that the Gulf of Fonseca was a “historic bay
possessed of the characteristics of a closed sea” help us now to ascertain
the positive legal status of that Gulf? Whatever respect may be owed to the
1917 Judgment, it seems a needless self-restriction on the part of the
Chamber to have refrained from any critical inspection of its contents.
Due account should have been taken of the following points in that
1917 Judgment. Firstly, it was delivered in a case between El Salvador and
Nicaragua only, a case to which Honduras was not a party. Secondly,
that Court was constituted by agreement between five Central American
nations, including Honduras. Thirdly, Honduras had earlier lodged its
objection to the proceedings before that Court, on the grounds that it had
not been invited to participate. Fourthly, Honduras itself expressed its
objection to the decision of the 1917 Judgment that the Gulf of Fonseca
constituted a condominium, which concept, according to that Judgment,
was a logical consequence of the use of the term “historic bay”. Lastly, the
legal status of the waters of the Gulf as between all three riparian States
was not, at all events, necessarily at issue in the particular dispute submit-
ted to the Central American Court. These various factors should be taken
into account in considering the contention to the effect that the Gulf of
Fonseca is now a “historic bay possessed of the characteristics of a closed
sea”. The most important fact at that time was that the concept of “historic
bay = condominium” was introduced mainly in order to buttress El Sal-
vador’s contention that the building of a United States naval base on
Nicaraguan territory, facing the Gulf, should not be permitted.

IV. THE LEGAL STATUS OF THE WATERS OF THE GULF OF FONSECA AS
MISCONCEIVED IN THE 1917 JUDGMENT AND IN THE PRESENT JUDGMENT

35. The 1917 Judgment suggested that the waters within the closing-
line of the Gulf, which was a “historic bay possessed of the characteristics

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of a closed sea”, were subject to a condominium created by joint inherit-
ance of an area which had been a unity in its entire history previous to the
succession in 1821 and, being neither territorial sea nor internal waters,
had been the object either of the joint ownership or of a condominium of
the three riparian States since 1821. It is important, however, to note that
in that Judgment the 1-marine-league belt would be excluded from that
régime, the waters of that belt thus being divided between the three respec-
tive riparian States. In the concrete terms suggested by the Central Ameri-
can Court of Justice,

“this Court has held [the Gulf of Fonseca] to belong to the category of
historic bays and to be possessed of the characteristics of a closed sea”
(trans. AJIL, Vol. 11, p. 707)

and

“{tjhe legal status of the Gulf of Fonseca having been recognized by
this Court to be that of a historic bay possessed of the characteristics
of a closed sea, the three riparian States of El Salvador, Honduras
and Nicaragua are, therefore, recognized as codwners of its waters,
except as to the littoral marine league which is the exclusive property
of each...” (ibid. p. 716).

Likewise, the present Judgment finds that “the Gulf waters, other than the
3-mile maritime belts, are historic waters and subject to a joint sovereignty
of the three coastal States” (para. 404). It also deems the waters of the Gulf
to be “the subject of [a] condominium or co-ownership” (para. 412). Thus
the Chamber decides that

“the Gulf of Fonseca is an historic bay the waters whereof, having
previously to 1821 been under the single control of Spain, and from
1821 to 1839 of the Federal Republic of Central America, were there-
after succeeded to and held in sovereignty by [the three littoral
States], jointly, and continue to be so held. . ., but excluding a belt...
extending 3 miles (1 marine league) from the littoral of each of the
three States, such belt being under the exclusive sovereignty of the
coastal State, .. .” (para. 432 (1)).

36. This decision of the present Judgment which I have just quoted
above (and similarly that of the 1917 Judgment) is the part of the whole
Judgment which I find most difficult to understand. Does the Chamber
suggest that the Gulf of Fonseca, as a historic bay claimed to have been
inherited in 1821 or 1839 by El Salvador, Honduras and Nicaragua from
Spain or the Federal Republic of Central America as a condominium
without any division among them, is now composed of the (minimal) cen-
tral part of the waters, which remains subject to the joint sovereignty of
three States, while a 3-mile coastal belt along the entire coastline in the
Gulf (actually occupying most of the Gulf) is apportioned individually to
each of them respectively?

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37. Topography and history indicate that, prior to 1821, the Gulf of
Fonseca was surrounded by the territory of Spain, as a single State, and
then until 1839 by the Federal Republic of Central America. Spain, and
subsequently the Federal Republic of Central America, might have exer-
cised a certain authority and control in its offshore waters. Yet there is no
ground for believing that at times prior to 1821 or 1839 Spain or the Fed-
eral Republic of Central America had any control in the sea-waters
beyond the traditionally accepted rule of the range of cannon-shot in the
Gulf. Both the 1917 Judgment and the present Judgment depend on the
hidden assumption that the maritime area in question was, prior to 1821
or 1839, not only “single and undivided” but also in its entirety (as a bay)
within the territorial jurisdiction of a single riparian State. They overlook
the basic fact that, in 1821 or 1839, there did not at the time exist any con-
cept of a bay defined as a united body of waters in terms of geographical
features and of the applicable legal status.

38. Another thesis implicit in the 1917 Judgment and the present Judg-
ment, which heavily relies upon its predecessor, is — in the words of the
latter — that “there seems no reason in principle why a succession should
not create a joint sovereignty where a single and undivided maritime area
passes to two or more new States” (Judgment, para. 399). This prompts the
question: if the assumption of unitary status for the entire waters in the
Gulf had been correct in 1821 or 1839, why should the 1917 Judgment and
the present Judgment not have preferred the far more natural interpreta-
tion that, once the territory over which a single State, Spain, and later the
Federal Republic of Central America, had sovereignty was divided into
five States as a result of their independence, the authority over and control
of the offshore waters (which had always been considered as appurte-
nances of the land) might have been divided correspondingly to the
divided territories of those newly independent States, and that the three
riparian States of El Salvador, Honduras and Nicaragua each inherited
authority over and control of their respective offshore waters of their own
land territory in the Gulf of Fonseca? Indeed, the 1917 Judgment itself
had recognized “the littoral marine league which is the exclusive property
of each [State]” (trans. AJIL, Vol. 11, p. 716; emphasis added), and the
present Judgment recognizes

“a belt, as at present established, extending 3 miles (1 marine league)
from the littoral of each of the three States, such belt being under the
exclusive sovereignty of the coastal State” (Judgment, para. 432 (1)).

39. The Central American Court of Justice seems to have contradicted
itself in suggesting at one and the same time the concept of “a single and
undivided maritime area [having passed] to two or more new States, [thus]

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creat[ing] a joint sovereignty” and that of “the littoral marine league
which is the exclusive property of each [State]”. It appears to me that the
1917 Judgment was based upon a local illusion as concerns the historical
background of law and fact. If I may be allowed to add my view, the pres-
ent Judgment perpetuates an error in depending on the 1917 Judgment
and proposing in parallel “the waters of the Gulf... held in sovereignty by
the Republic of El Salvador, the Republic of Honduras, and the Republic
of Nicaragua, jointly” and “a belt, as at present established, extending
3 miles (1 marine league) from the littoral of each of the three States, such
belt being under the exclusive sovereignty of the coastal State” Judgment,
para. 432 (1)).

40. My query continues: what is the legal status of the waters described
by the Judgment as follows: “the maritime belt in a pluri-State bay”
(para. 392), “the 3-mile maritime belts of exclusive jurisdiction”
(para. 393), “the littoral maritime belts subject to the single sovereignty of
each of the coastal States, but with mutual rights of innocent passage”
(para. 412), “the 3-mile belt of exclusive jurisdiction enjoyed by each of
the States along its coast” (para. 413), “the 3-mile maritime littoral belt of
exclusive jurisdiction within the Gulf” (para. 415), “the littoral maritime
belts of 1 marine league along the coastlines of the Gulf” (para. 416), “the
inner littoral maritime belts . . . not territorial seas in the sense of the mod-
ern law” (ibid.), “the internal waters of the coastal State, not being subject
to the joint sovereignty, and even though subject .. . to rights of innocent
passage” (ibid. ), “the exclusive littoral maritime belts . . . limited to 3 miles
in breadth” (para. 418), “internal waters subject to a single, exclusive
sovereignty” (ibid.)? After all, what is the 3-mile coastal belt in the concept
of the Judgment? I simply believe that the Chamber confuses the law of
the sea in applying such unusual concepts.

41. With regard to the concept of condominium (or co-ownership) or of
a joint sovereignty, which the Central American Court of Justice and the
Chamber employed to define the waters of the Gulf of Fonseca excluding
the 3-mile coastal belt (not of the whole area of the Gulf!), it must be noted
that Honduras itself denies that the Gulf constitutes a condominium of
the three riparian States of Honduras, El Salvador and Nicaragua and
refers to the absence of an agreement between the States concerned. I
agree that a condominium may be created by the consent of the States
concerned with respect to the area to which those States could have ori-
ginally been entitled. I am not suggesting any general rule that the concept
of a condominium should not be applicable in maritime areas. The pres-
ent Judgment refers to the case of the Baie du Figuier, where there has
existed a zone of condominium possessed jointly by France and Spain
since 1879 (Judgment, para. 401). This precedent does not, however, give
any ground for justifying the status of a condominium for the Gulf of

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755 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

Fonseca, in connection with which no agreement between the States con-
cerned has ever existed. The rationale underlying the Baie du Figuier solu-
tion was that France and Spain agreed to keep the small area in that bay
(which itself is so small, the mouth of it being about 3,000 metres across,
that it could by the mere distance criterion have been under the jurisdic-
tion of either State) under their joint administration for the common use of
the anchorages in the roadsteads therein located (Déclaration pour la
délimitation de la juridiction de la France et l’Espagne dans les eaux de la
baie du Figuier, 1879, Ministère des Affaires Etrangères, Traités et conven-
tions en vigueur entre la France et les puissances étrangères, Second Volume,
1919, p. 141); the question of separate title thus yielded to practicality. It
is very evident that in the present case other considerations prevail.

42. I must also refer in this instance to the fact that, while the 1917 Judg-
ment did not use the term, the Chamber alone attempts to rely on the con-
cept of “historic waters” in order to define the waters of the Gulf of
Fonseca. I must confess that I am extremely confused as to whether the
Chamber is talking of “historic waters” for the whole area of the Gulf or
the (minimal) central part of the Gulf excluding “the three-mile maritime
belt”. The Chamber states: that “[the Gulf of Fonseca] is an historic
bay, . . . the waters of it are accordingly historic waters” (Judgment,
para. 383), that “[wjhat does present a problem . . . is the precise character
of the sovereignty which the three coastal States enjoy in these historic
waters” (para. 395), that “[tfhe essence of the 1917 decision concerning the
legal status of the waters of the Gulf was. . . that these historic waters were
then subject to a ‘co-ownership’ (condominio) of the three coastal States”
(para. 398), that “the maritime area in question had long been historic
waters under a single State’s sovereignty” (para. 401), and that “the Gulf
waters, other than the 3-mile maritime belts, are historic waters and sub-
ject to a joint sovereignty of the three coastal States” (para. 404). The
Chamber seems simply to add confusion by its misconception of what
constitutes “historic waters”.

43. “Historic waters” were defined in the Fisheries case of 1951 as
meaning “waters which are treated as internal waters but which would not
have that character were it not for the existence of an historic title” (1.C.J.
Reports 1951, p. 130). In fact, waters in the situation of those disputed in
the 1951 case are by now enclosed as “internal waters” by an application
of the new concept of straight baselines under the 1958 and 1982 Conven-
tions, so that their “historic” background has become a superfluous refer-
ence. Similarly, a claim to a “historic bay” could have been justified by the
status of its waters as “historic waters”, but by now most bays known as
“historic bays”, such as Delaware Bay, Chesapeake Bay, the Bristol
Channel or Conception Bay, have become, as I already stated above, ordi-
nary bays because of the new rule of the 24-mile closing-line. Further-
more, some “historic waters” in a rather different situation have also been

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756 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

the subject of a parallel evolution. In the course of the preparation for
UNCLOS III, the delegate of the Philippines introduced a draft article
concerning “historic waters” reading that “historic rights or title
acquired by a State in a part of the sea adjacent to its coasts shall be recog-
nized and safeguarded” (A/AC.138/SC.II/L.46) and another draft arti-
cle on “breadth of territorial sea” reading that “the maximum limit [of the
territorial sea] shall not apply to historic waters held by any State as its
territorial sea” (A/CONF.138/SC.I1/L.47/Rev.1). These proposals by
the Philippines did not appear in any of the texts which were later brought
to UNCLOS III. In fact, the waters which the Philippines intended to
claim on grounds of historic rights or titles would have been brought
under the jurisdiction of the coastal State in terms of the new concept of
“archipelagic waters” under the 1982 Convention, which would have a
sui generis status similar to that of territorial sea but not, however, to that
of internal waters!. In other words, the concept of “historic waters” has
become irrelevant in the case of the Philippines because of the agreed new
concept of archipelagic waters.

44, In sum, the concept of “historic waters” has become practically a
redundancy, which is perhaps why it does not appear in either the 1958 or
the 1982 Conventions. In fact, it is not so much a concept as a description
expressive of the historic title on the basis of which a claim to a particular
status for certain waters has been made. Thus, firstly in the 1951 Fisheries
case a claim to “historic waters” was used to justify the status of internal
waters, secondly a claim to “historic waters” for the waters of a bay could
have justified a concept of a “historic bay” the waters of which are “inter-
nal waters”, and thirdly in another instance, i.e., in the case of the Philip-
pines, it has been used to justify only the status of territorial sea, resulting
in the emergence of a new sui generis concept of archipelagic waters. It
follows, therefore, that “historic waters” have no special legal status dif-
ferent from the categories which have long been recognized, that is, either
internal waters or territorial sea (or the newly recognized archipelagic
waters): in other words, “historic waters” as such did not and do not exist
as an independent institution in the law of the sea. I have to add this expla-
nation because the essential implications of this terminology seem to have
been overlooked in the present Judgment, particularly when I note in the
Judgment the presumption that, the Gulf of Fonseca being “[a] historic

! The reference to “archipelagic internal waters” in the present Judgment (para. 393)
is thus misleading.

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757 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

bay, ... the waters of it are accordingly historic waters” (Judgment,
para. 383; emphasis added).

V. THE TRUE LEGAL STATUS OF THE WATERS OF THE GULF OF FONSECA:
THE WATERS OF THE GULF OF FONSECA CONSISTING OF THE TERRITORIAL SEAS
OF EACH OF THE RIPARIAN STATES

45. Since the time when the rather vague concept of the territorial
waters or the coastal belt first emerged in the last century, the three ripar-
ian States of the Gulf of Fonseca had in principle maintained 1 league
(3 miles) as the limit of their territorial seas and there was no evidence that
their claims to territorial seas in the Gulf differed from their relevant
claims elsewhere. In addition, the three riparian States seem to have exer-
cised certain police powers for inspection beyond their respective
1-league territorial seas. El Salvador provided, in its Civil Code of 1860, in
addition to the 1-league territorial sea, that police powers should be exer-
cised outside the territorial sea to a distance of 4 leagues from the coast
(United Nations Legislative Series, Vol. 1; ST/LEG/SER.B/1, p. 71). This
claim was repeated in the 1933 Navigation and Maritime Act (ibid.; see
also Vol. VI; ST/LEG/SER.B/6, p. 126). Honduras likewise claimed in
its 1906 Civil Code (ibid., ST/LEG/SER.B/1, p. 71), in addition to the
1-league territorial sea, a 4-league belt for the exercise of its police power.
Nicaragua is reported to have taken the same position. Such a competence
on the part of the coastal State has been generally accepted since
World War I, particularly through the new régime of the contiguous zone
which the United States initiated in the bilateral treaties that it concluded
with a number of States. In such circumstances, no objection by any State
has ever been lodged against those three riparian States in connection
with their additional claims to exercise police powers beyond the territo-
rial sea.

46. Apart from those territorial claims over the waters of the Gulf, the
three riparian States could early in this century have been united in con-
sidering that the small expanse of sea represented by the waters of the
Gulf — which would in any event be covered by their respective territorial
seas and police zones — should not remain open to free use by any State
other than themselves. It would not have been surprising if the Gulf of
Fonseca had politically been the subject of a common interest of the three
riparian States, thus precluding unwished-for use or participation by
other States, or if their attitudes in 1917 had featured a common confi-
dence in rejecting the then prevailing “open seas” doctrine as applicable

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758 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

to the waters of the Gulf of Fonseca. No evidence has been shown that
they actually voiced such a rejection, or asserted a corresponding historic
claim, jointly, and thus proposed for the Gulf a sui generis régime. Yet a
tacit implication to that effect led El Salvador then to raise an objection to
the establishment of a United States naval base on Nicaraguan territory,
and also lent impetus to the Central American Court of Justice in naming
the Gulf of Fonseca as a “historic bay” and in consecrating the idea of
shared ownership of non-territorial waters. This has also led the three
riparian States in the present case to unitedly denominate that Gulf as a
“historic bay”, even though, as I have suggested, this particular term has
been used erroneously to describe the Gulf of Fonseca.

47. Whether or not any precise delimitation of the territorial sea and/
or the zone for police powers was needed at any given moment for practi-
cal purposes, these waters in the Gulf could undoubtedly have been
properly divided by boundary lines and, in fact, a boundary line was
adopted in 1900 by a mixed commission established by Nicaragua and
Honduras, a line extending an approximate distance of 20 nautical miles
to a central point of the Gulf equidistant from the coasts of Honduras
(El Tigre) and Nicaragua, which are more than 10 nautical miles apart. It
is not known if the Governments either of Honduras or of Nicaragua had
any clear idea of the status of the waters they were then dividing. Yet Hon-
duras could certainly have proceeded to the same exercise of drawing a
boundary in relation to El Salvador, though this would in practical terms
have been more difficult owing to the existence of scattered islands in the
western part of the Gulf.

48. 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
régime of the law of the sea, the Gulf of Fonseca must now be deemed to
be totally covered by the territorial seas of the three riparian States. It
cannot, moreover, be disputed that the area which had previously been
claimed by each of these States for the exercise of its police powers has
been completely absorbed in the extended 12-mile territorial sea in the
Gulf. Thus I conclude that the waters within the Gulf of Fonseca now
consist of the territorial seas of three riparian States, without leaving any
maritime space beyond the 12-mile distance from any part of the coasts.
This, to my mind, is the legal status of those waters.

49. As to any more specific decision, the Chamber is not in a position to
make any delimitation of the territorial sea of these three riparian States
in the Gulf (Judgment, para. 432 (2)). Nevertheless, Article 15 of the 1982
United Nations Convention cannot be ignored:

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759 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ODA)

“Where the coasts of two States are opposite or adjacent to each
other, neither of the two States is entitled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median
line every point of which is equidistant from the nearest points on the
baselines from which the breadth of the territorial seas of each of the
two States is measured. The above provision does not apply, how-
ever, where it is necessary by reason of historic title or other special
circumstances to delimit the territorial seas of the two States in a way
which is at variance therewith.”

In other words, the equidistance method is the rule in delimitation of the
territorial sea of the neighbouring States either opposite or adjacent to
each other, and the shape of the coast as a baseline is of importance for
measuring the territorial sea. I do not see that any historic title or other
special circumstances have been advanced by either El Salvador or
Honduras which would justify any departure from the application of
the general rule of the “equidistance line”. In the particular instance of
the Gulf of Fonseca, the terminal points of the land boundaries between
El Salvador and Honduras, and between Honduras and Nicaragua, are of
crucial significance for the delimitation of the respective territorial seas.
The Chamber has determined that the terminal point of the territorial
boundary between El Salvador and Honduras is north-west of the
Islas Ramaditas at the mouth of the river Goascoran. In addition, sover-
eignty over the islands located in the Gulf is one of the factors to be taken
into account, and the islands of Meanguera and Meanguerita are deter-
mined by the Chamber as being under the sovereignty of El Salvador.

50. It seems to be clear from the geographical point of view that Hon-
duras, sandwiched between El Salvador and Nicaragua in the Gulf, is not
entitled to claim any territorial sea beyond the meeting point somewhere
in the Gulf of the respective territorial seas of the three riparian States,
which may well be determined, if necessary, by agreement among them-
selves or by any other means that they may deem fit. I must emphasize at
this juncture that, while the delimitation of the exclusive economic zone
and the continental shelf between the neighbouring States should be
effected “in order to achieve an equitable solution” (1982 United Nations
Convention, Arts. 74 and 83), application of the equidistance method
remains a rule in the delimitation of the territorial sea.

VI. THE RIGHTS OF HONDURAS WITHIN AND OUTSIDE
THE GULF OF FONSECA

(i) Within the Gulf

$1. It cannot be overlooked that Honduras, whose territorial title to
waters in the Gulf is locked within the Gulf itself, has always enjoyed the

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right of innocent passage through the traditional 3-mile territorial sea and
certainly will also be guaranteed this right through the now expanded ter-
ritorial seas of the other two riparian States, E] Salvador and Nicaragua,
which territorial seas meet within the Gulf. The Chamber, in defining the
legal status of the waters of the Gulf, seems to be motivated by its concern
about the passage of vessels, whether of Honduras or of other foreign
nations, to and from the Pacific Ocean, but the right of innocent passage
is, in any event, protected by international law even in the territorial sea of
any State.

52. I must add, furthermore, that given the large measure of mutual
understanding displayed by the three riparian States in respect of the
common interest derived from their geographical location bordering on
the Gulf, it may be possible (under a new concept enshrined in the 1982
United Nations Convention) for them, as “States bordering an enclosed
or semi-enclosed sea”, to accept their obligation of “[co-operation] with
each other in the exercise of their rights and in the performance of their
duties under this Convention”, as provided for under Part IX of the 1982
United Nations Convention on the Law of the Sea, entitled “Enclosed or
Semi-Enclosed Sea” (Art. 123).

(ii) Outside the Gulf

53. I believe that I have sufficiently demonstrated the reasons why I am
unable to associate myself with the present Judgment’s finding to the
effect that, since a condominium of three States extends up to the closing-
line of the Gulf, Honduras, as one of the three, is entitled to claim an
exclusive economic zone and continental shelf outside the Gulf. Such a
finding is hardly tenable in the light of any rule, traditional or contempor-
ary, of the law of the sea. Because of its geographical situation, Honduras
cannot lay claim, in the offshore areas of the Pacific coast outside the
Gulf, to any territorial title in terms of the territorial sea, the continental
shelf or the exclusive economic zone. This is a geographical reality of
nature which — if I may adopt the Court’s dictum in the North Sea Conti-
nental Shelf cases — there “can never be any question of completely
refashioning” (1.C.J. Reports 1969, p. 49, at para. 91).

54. Of course, as I have already stated, Honduras is fully guaranteed
access to the high seas of the Pacific Ocean outside the Gulf of Fonseca by
the unchallenged concept of innocent passage through the territorial seas
of the two neighbouring States both within and without the Gulf.

55. The concept of the continental shelf and the exclusive economic
zone has recently been developed to extend coastal jurisdiction to vast
offshore areas which had traditionally been regarded as a part of the high

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seas. Thus the interests of the coastal State have been strengthened and
expanded — albeit at the expense of the general and common interests of
the international community to be enjoyed on the high seas — and the
general interests capable of being asserted by the international commu-
nity on the high seas are now diminished (although the navigation inter-
ests of non-coastal nations remain unaffected in those expanded areas). In
return for that sacrifice, land-locked States and geographically disadvan-
taged nations are assured, under the 1982 United Nations Convention on
the Law of the Sea, of:

“the right to participate, on an equitable basis, in the exploitation
of an appropriate part of the surplus of the living resources of the
exclusive economic zones of coastal States of the same sub-region or
region...” (Art. 69, para. 1, and Art. 70, para. 1).

The “geographically disadvantaged States” are meant to include:

“States bordering enclosed or semi-enclosed seas, whose geographi-
cal situation makes them dependent upon the exploitation of the liv-
ing resources of the exclusive economic zones of other States in the
subregion or region for adequate supplies of fish for the nutritional
purposes of their populations or parts thereof, and coastal States
which can claim no exclusive economic zones of their own” (Art. 70,
para. 2).

This new concept of the “right to fish” in the exclusive economic zone of
the neighbouring State was introduced into the new régime of the seas to
compensate geographically disadvantaged States which might otherwise
have suffered owing to the expanded coastal jurisdiction of these neigh-
bouring States placed geographically in a better position. I should refrain
at this juncture from taking any interpretative position on the question
whether, in view of the fact that it has a long coastline on the Atlantic
side — thus enabling it to claim its own exclusive economic zone in that
region —, Honduras falls within the definition of “geographically disad-
vantaged States”, which would enable it to claim in the Pacific Ocean the
rights of “geographically disadvantaged States” under the 1982 United
Nations Convention. I would simply suggest that the possibility of Hon-
duras claiming or being granted such a right in the exclusive economic
zones in the Pacific of its two neighbouring States may not be excluded.

(Signed) Shigeru Opa.

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