one administrative district or the other.
Thus the Court was forced to concentrtate more on the
Land, Island and Maritime Frontier Dispute Case
(El Salvador v. Honduras),
Judgment of 11 September 1992
On 11 December 1986, El Salvador and Honduras jointly notified the Court of a Special Agreement
concluded between them on 24 May 1986 whereby a dispute referred to as "Land, Island and
Maritime Frontier Dispute" would be submitted for decision by a Chamber to be constituted
according to Article 26 para.2 of the Statute. The Chamber would consist of three Members of the
Court and two judges ad hoc chosen by each Party. The Chamber finally consisted of Judges
Oda, Sette-Camara and Sir Robert Jennings and the ad hoc judges Valticos and Torres Bernárdez
(cf. Digest, vol. 1, page 294).
The dispute was essentially rooted in the fall of the Spanish Colonial Empire in Central America
in the 19th century. Both Honduras and El Salvador belonged to the Captaincy-General of
Guatemala, which itself was a part of Mexico at the time. In 1821, Honduras and El Salvador
joined the Federal Republic of Central America and became independant in 1839 after the
disintegration of the Federal Republic. Their respective national borders corresponded to the
administrative borders recognized for the former Spanish colonies according to the uti possidetis
iuris principle applied first in Central America and later in Africa.
As early as 1854, the legal status of the islands located in the Gulf of Fonseca became an issue
of dispute; the question of the land frontier followed in 1861. Border incidents led to mounting
tension between the States and, ultimately, to an armed conflict in 1969. However, in 1972 the
parties were able to reach an agreement on a substantial part of the land border between El
Salvador and Honduras; only six sectors of the frontier remained unsettled. A mediation process
initiated in 1978 resulted in the conclusion of a peace treaty in 1980.
Under this treaty a Joint Border Commission was created to determine the boundary in the
remaining six sectors as well as to decide upon the legal status of the islands and the maritime
spaces. In the event that the parties did not reach a settlement within five years, the treaty provided
that the parties, within six months, conclude a Special Agreement to submit the dispute to the ICJ.
Accordingly, a Special Agreement was concluded on May, 24, 1986 requesting the Court to delimit
the frontier between El Salvador and Honduras in the subject six sectors and to determine the
legal status of the islands in the Gulf of Fonseca, and the waters of the Gulf itself.
Regarding the land boundary, the decision of the Court was unanimous for all but the fourth sector,
which was decided against the vote of ad hoc Judge Valticos.
The Court relied on the uti possidetis juris principle, according to which the national boundaries of
former colonies correspond to the earlier administrative borders of the colonies. The Court
underlined that it was the application of this principle which provided States liberated from former
colonial empires with internationally recognized borders. The different titles invoked by the parties
to the case were of different legal value; thus, the Court decided to recognize only the title deeds
granted by the Spanish crown as valid proof of title as well as topographical characteristics in
order to define a clearly recognizable borderline.
With regard to the islands in the Gulf of Fonseca, the Court decided in a vote of 4 to 1 (against
: ad hoc Judge Torres Bernárdez) that, according to Art. 2 para. 2 of the Special Agreement, the
parties had transferred general jurisdiction over all islands located in the Gulf to the Court as far
as their national affiliation was in dispute. Accordingly, the Court concluded that three islands were
in dispute, namely El Tigre, Meanguera and Meanguerita, refusing Honduras' contention that El
Tigre had been part of Honduras since 1854, without challenge.
The decision of the Court was based on the assumption that none of the islands had been terra
nullius in 1821, the date of independance. Thus, sovereignty over the islands had been achieved
according to the uti possidetis juris principle. However, the application of this principle suffered
from the lack of documents that might have testified clearly the appertainance of the islands to
behaviour of the parties with regard to the islands after 1821. On this basis the Court found that
El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador.
The decision on the legal situation of the maritime spaces of the Gulf constituted the part of the
proceedings where the intervention of Nicaragua had been admitted (Cf. Digest, vol. 1, p. 294f).
The Court, in this context, had first to decide whether the Special Agreement empowered it to
draw the frontier only within or also outside the closing line of the Gulf. Following the argument of
El Salvador, the Court came to the conclusion that it was not competent to delimit the waters of
the Gulf, because the Special Agreement did not contain indications in this sense. According to
the Agreement, the Court had to determine the legal status of the waters of the Gulf on the basis
of applicable international law and, insofar as necessary, the General Peace Treaty of 1980
between El Salvador and Honduras. In view of its general characteristics, dimensions and
proportions, the Gulf would today be regarded as a juridical bay in accordance with the Convention
on the Territorial Sea and the Contiguous Zone of 1958 and the Convention on the Law of the Sea
of 1982. As a consequence thereof, if the Gulf was a single State bay, a closing line could be
drawn and the waters thereby enclosed and considered as internal waters. However, the Gulf was
not a single State bay but constituted a so called historical bay, which is neither defined in the
1958 Convention nor in the Convention of 1982. From this fact the Court concluded that its
decision had to be taken on the basis of customary international law. After reviewing its own
jurisprudence on the topic, the Court found that it had to examine the history of the Gulf. In this
context, much weight was accorded to a judgment of the Central American Court of Justice of
1917 in a dispute between El Salvador and Nicaragua. That Court had come to the conclusion
that the Gulf of Fonseca effectively constituted a "closed sea" belonging to all three coastal States
communally, with the exception of a three mile zone established unilaterally by each coastal State.
Thus, the Central American Court viewed the Gulf of Fonseca as a condominium resulting from
the succession of the three States from Spain in 1821. Until then, the Gulf had been a single State
bay belonging to Spain alone. According to the Court, the decision of the Central American Court
underlined the fact that at the time of independance, no boundaries were delimited in the Gulf and
thus the waters had remained undivided. The Court, however, stressed that the decision of the
Central American Court constituted a binding judgment only between the two parties originally
involved, namely El Salvador and Nicaragua, and accordingly, the Court had to reach its own
decision. With a 4 to 1 vote, the Court affirmed that the Gulf of Fonseca was a case of "historic
waters", whereby the three coastal States had succeeded to communal sovereignty. In contrast
to the frontier delimited on land, the waters of the Gulf had never been divided or otherwise
delimited after the independance of the three coastal States. Thus, the communal succession for
the three States was a logical consequence of the uti possidetis juris principle with regard to the
sovereignty of the Gulf.
Finally, the Court drew the closing line of the Gulf between Punta de Amapala and Punta
Cosiguina and determined that the special regime of the Gulf did not extend beyond this closing
line. The legal status of these waters inside the Gulf were defined by the Court as sui generis, but
would be the same as that of internal waters and not that of territorial sea, except for the three-
mile coastal zone of each State.
As to the waters outside the Gulf, the Chamber noted that intirely new concepts of maritime law
existed present day, unheard of in 1917. The Chamber held in this context that there is a territorial
sea proper seawards of the closing line of the Gulf. Since there is a condominium of the waters
inside the Gulf, there is a tripartite presence at the closing line. Only seaward of the closing line
could modern territorial seas exist, as otherwise, the Gulf waters could not be waters of a historic
bay. Therefore, the three coastal States, joint sovereigns of the internal waters, must each be
entitled outside the closing line to a territorial sea, continental shelf and exclusive economic zone.
It is, however, for the three States to decide whether this situation should be upheld or replaced
by a division and delimitation into three separate zones.
Clipperton Island Case (France v Mexico) (1932)
FACTS: France claimed to have occupied an island but Mexico also claimed that Spain
discovered it and that it was the successor.
Clipperton Island is an uninhabited island coral atoll in the eastern Pacific Ocean, southwest of
Mexico, west of Costa Rica and northwest of Galapagos Islands, Equador. The island was
discovered by French.
They drew up the first map and annexed it to France. The first scientific expedition took place in
1725 under Frenchman M. Bocage, who lived on the island for several months.
Mexico also claimed it due to activities undertaken therein as early as 1848-1849. On November
17, 1858, Emperor Napoleon III annexed it as part of the French colony of Tahiti. This did not
settle the ownership question. After which, there were no apparent acts of sovereignty on the part
of France. The island remained without population. On November 24, 1897, French naval
authorities found three Americans working for the American Guano Company, who had raised the
American flag. U.S. authorities denounced their act, assuring the French that they did not intend
to assert American sovereignty.
Mexico and France signed a compromise in 1909, agreeing to submit the dispute over sovereignty
over Clipperton Island to binding arbitration by King Victor Emanuel of Italy.
Issue: The issue is who, between the France and Mexico, has the sovereignty over the
Clipperton Island.
HELD: For occupation you also need to possess the land which France did. (Arbitrator: King Victor
Emmanuel III of Italy) “that island was in the legal situation of terratorium nullius, and, therefore,
susceptible of occupation. The question remains whether France proceeded to an effective
occupation, satisfying the conditions required by international law for the validity of this kind of
territorial acquisition.”
It is beyond doubt that by immemorial usage having the force of law, besides the animus
occupandi, the actual, and not the nominal, taking of possession is a necessary condition of
occupation. This taking of possession consists in the act, or series of acts, by which the occupying
state reduces to its possession the territory in question and takes steps to exercise exclusive
authority there. Strictly speaking, and in ordinary cases, that only takes place when the state
establishes in the territory itself an organization capable of making its laws respected. But this
step is, properly speaking, but a means of procedure to the taking of possession, and, therefore,
is not identical with the latter. There may also be cases where it is unnecessary to have recourse
to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from
the first moment when the occupying state makes its appearance there, at the absolute and
undisputed disposition of that state, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.
There is no reason to suppose that France has subsequently lost her right by derelictio, since she
never had the animus of abandoning the island, and the fact that she has not exercised her
authority there in a positive manner does not imply the forfeiture of an acquisition already
definitively perfected.3
In 1931 Victor Emanuel issued his arbitral decision in the Clipperton Island Case, declaring
Clipperton to be a French possession.[23][24][25] The French rebuilt the lighthouse and settled a
military outpost, which remained for seven years before being abandoned.
ISLAND OF LAS PALMAS
Brief Fact Summary. Both the United States (P) laid claim to the ownership of the Island of
Palmas. While the U.S. (P) maintained that it was part of the Philippines, the Netherlands (D)
claimed it as their own.
Synopsis of Rule of Law. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty.
Facts. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the
U.S. (P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own.
The claim of the U.S. (P) was back up with the fact that the islands had been ceded by Spain by
the Treaty of Paris in 1898, and as successor to the rights of Spain over the Philippines, it based
its claim of title in the first place on discovery. On the part of the Netherlands (D), they claimed to
have possessed and exercised rights of sovereignty over the island from 1677 or earlier to the
present.
Issue. Can a title which is inchoate prevail over a definite title found on the continuous and
peaceful display of sovereignty?
Discussion. Evidence of contracts made by the East India Company and the Netherlands (D)
was examined by the arbitrator. The claims made by the Netherlands (D) were also based on the
premise of the convention it had with the princes and native chieftains of the islands. Hence, at
the time of the Treaty of Paris in 1898, Spain was found not to have dominion over the island. y
4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals amounting to over $2.5
billion.
EASTERN GREENLAND CASE NORWAY v DENMARK
Citation. Court of Int’l Justice, 1993 P.C.I.J. (ser. A/B) No. 53 at 71
Brief Fact Summary. The statement made by the Norwegian Minister was claimed to be binding
on his country by Denmark (P).
Synopsis of Rule of Law. A country is bound by the reply given on its behalf by its Minister of
Foreign Affairs.
Facts. The agreement not to obstruct Danish (P) plans with regard to Greenland was what
Denmark wanted to obtain from Norway (D). To this request, a declaration on behalf of the
Norwegian government (D) was made by its Minister for Foreign Affairs that Norway (D) would not
make any difficulty in the settlement of the question.
Issue. Is a country bound by the reply given on its behalf by its Minister of Foreign Affair
Held. Yes. A country is bound by the reply given on its behalf by its Minister of Foreign Affairs.
Therefore in this case, the response by the diplomatic representative of a foreign power is binding
upon the country the Minister represents.
Discussion. The main source of international law on treaties is the Vienna Convention on the Law
of Treaties. The Convention was ratified by 35 countries but not by the United States. Unilateral
statements may also be binding on states.
LOTUS CASE (SUMMARY)
Permanent Court of International Justice, Contentious Case: The Lotus Case (France vs Turkey)
Year of the decision: 1927.
Overview:A collision occurred on the high seas between a French vessel and a Turkish vessel.
Victims were Turkish nationals and the alleged offender was French. Could Turkey exercise its
jurisdiction over this French national under international law?
Facts of the Case: A collision occurred on the high seas between a French vessel – Lotus – and
a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the
Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on
board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the
Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to 80
days of imprisonment and a fine. The French government protested, demanding the release of
Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this
dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).
Questions before the Court: Did Turkey violate international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey
pay compensation to France?
not overstep the limits which international law places upon its jurisdiction; within these limits, its
title to exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite
to exercise jurisdiction, the Court argued, then “it would…in many cases result in paralysing the
action of the courts, owing to the impossibility of citing a universally accepted rule on which to
support the exercise of their [States’] jurisdiction” (para 48).
The Court based this finding on the sovereign will of States. It held that:
“International law governs relations between independent States. The rules of law binding upon
States therefor emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the
relations between these co-existing independent communities or with a view to the achievement
of common aims. Restrictions upon the independence of States cannot therefore be presumed”

The Court’s Decision: Turkey, by instituting criminal proceedings against Demons, did not violate
international law.

Relevant Findings of the Court: Establishing Jurisdiction: Does Turkey need to support its
assertion of jurisdiction using an existing rule of international law or is the mere absence of a
prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits it to do so. This is what we called
the first principle of the Lotus Case. The Court held that:

“Now the first and foremost restriction imposed by international law upon a State is that – failing
the existence of a permissive rule to the contrary – it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by
a State outside its territory except by virtue of a permissive rule derived from international custom
or from a convention.” (para 45)

The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction,
in any matter, even if there is no specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only limited by the prohibitive rules
of international law.The Court held that:

“It does not, however, follow that international law prohibits a State from exercising jurisdiction in
its own territory, in respect of any case which relates to acts which have taken place abroad, and
in which it cannot rely on some permissive rule of international law. Such a view would only be
tenable if international law contained a general prohibition to States to extend the application
of their laws and the jurisdiction of their courts to persons, property and acts outside their territory,
and if, as an exception to this general prohibition, it allowed States to do so in certain specific
cases. But this is certainly not the case under international law as it stands at present. Far from
laying down a general prohibition to the effect that States may not extend the application of their
laws and the jurisdiction of their courts to persons, property and acts outside their territory, it
leaves them in this respect a wide measure of discretion, which is only limited in certain cases by
prohibitive rules; as regards other cases, every State remains free to adopt the principles which it
regards as best and most suitable. This discretion left to States by international law explains the
great variety of rules which they have been able to adopt without objections or complaints on the
part of other States …In these circumstances all that can be required of a State is that it should