244
it reached was based solely on the precedent set down in the Gulf of Fonseca case.
Leaving aside the reservations some have about the finding of the ICJ Chamber,
97
it
must be noted that, in 1992, the Court did not stop there. Rather, that finding was a
preliminary step to considering the legal status and legal regime of the Gulf—which,
as noted above, the ICJ concluded was an historic bay mainly on the basis of the
“consistent claim” of the three coastal States, which were all in agreement with each
other. It should be emphasized, moreover, that the Central American Court of Justice
had taken the same approach in an earlier decision to which the ICJ Chamber made
extensive reference. Thus, neither the CACJ nor the ICJ considered it sufficient to
assess the legal status of the Gulf at a time when the territory of only one State bordered it. On the contrary, they both focused most of their analysis on the attitude of
the successor States.
98
Therefore, not only is the Tribunal’s failure to give reasons
certainly open to criticism, but some doubts arise also as to whether its reference to
the Court’s judgment was appropriate.
In this regard, it should be recalled that the “critical date” of the dispute was
expressly stated in Article 5 of the Arbitration Agreement, which reads:
No document or action undertaken unilaterally by either side after 25 June 1991 shall be
accorded legal significance for the tasks of the Arbitral Tribunal or commit either side of the
dispute and cannot, in any way, prejudge the award.
Owing to its very strict wording, this provision may have played a part in the
Arbitral Tribunal’s decision. As we have seen, the possibility of drawing a closing
line between the entrance points of a multinational bay seems to depend on the
evaluation of the attitude of the coastal States bordering the bay, as well as on the
existence of an agreement between them to that effect. If that is true, perhaps we
may say that Article 5 prevented the Tribunal from making such evaluation. While
the concept of “critical date” usually allows a certain flexibility in its application to
territorial disputes,
99
the fact that a critical date was specified in the Arbitration
Agreement may have ‘tied the hands’ of the Tribunal. This is reflected also in the
determinations with respect to the waters of the Bay, which the Tribunal classified
as internal waters and delimited on the basis of the uti possidetis principle.
97 Gioia (1993), pp. 126–127.
98 See Central American Court of Justice, El Salvador v. Nicaragua, Opinion and Decision,
pp. 700–701. This reflects the more general attitude of the 1992 Chamber with respect to the interpretation of the principle of uti possidetis juris and the issue of the critical date (see Land, Island
and Maritime Frontier Dispute, para. 67)—an aspect of the Judgment that received criticism from
some commentators writing at the time of the Award (see Kohen (1993), pp. 961–964).
99 Even without agreeing with the definition provided by Sir Robert Y. Jennings, which is reflected
in paragraph 67 (quoted above) of the 1992 Judgment in the Gulf of Fonseca case, a more restricted
view of this notion recognizes, in any case, “la pertinence des [faits postérieures à la date critique]
en tant qu’éléments de preuve pour éclaircir la situation existante à la date critique”, see Kohen
(1993), p. 961. See also ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 135, and
ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea,
paras 117 and 123.
A. Insolia
it reached was based solely on the precedent set down in the Gulf of Fonseca case.
Leaving aside the reservations some have about the finding of the ICJ Chamber,
97
it
must be noted that, in 1992, the Court did not stop there. Rather, that finding was a
preliminary step to considering the legal status and legal regime of the Gulf—which,
as noted above, the ICJ concluded was an historic bay mainly on the basis of the
“consistent claim” of the three coastal States, which were all in agreement with each
other. It should be emphasized, moreover, that the Central American Court of Justice
had taken the same approach in an earlier decision to which the ICJ Chamber made
extensive reference. Thus, neither the CACJ nor the ICJ considered it sufficient to
assess the legal status of the Gulf at a time when the territory of only one State bordered it. On the contrary, they both focused most of their analysis on the attitude of
the successor States.
98
Therefore, not only is the Tribunal’s failure to give reasons
certainly open to criticism, but some doubts arise also as to whether its reference to
the Court’s judgment was appropriate.
In this regard, it should be recalled that the “critical date” of the dispute was
expressly stated in Article 5 of the Arbitration Agreement, which reads:
No document or action undertaken unilaterally by either side after 25 June 1991 shall be
accorded legal significance for the tasks of the Arbitral Tribunal or commit either side of the
dispute and cannot, in any way, prejudge the award.
Owing to its very strict wording, this provision may have played a part in the
Arbitral Tribunal’s decision. As we have seen, the possibility of drawing a closing
line between the entrance points of a multinational bay seems to depend on the
evaluation of the attitude of the coastal States bordering the bay, as well as on the
existence of an agreement between them to that effect. If that is true, perhaps we
may say that Article 5 prevented the Tribunal from making such evaluation. While
the concept of “critical date” usually allows a certain flexibility in its application to
territorial disputes,
99
the fact that a critical date was specified in the Arbitration
Agreement may have ‘tied the hands’ of the Tribunal. This is reflected also in the
determinations with respect to the waters of the Bay, which the Tribunal classified
as internal waters and delimited on the basis of the uti possidetis principle.
97 Gioia (1993), pp. 126–127.
98 See Central American Court of Justice, El Salvador v. Nicaragua, Opinion and Decision,
pp. 700–701. This reflects the more general attitude of the 1992 Chamber with respect to the interpretation of the principle of uti possidetis juris and the issue of the critical date (see Land, Island
and Maritime Frontier Dispute, para. 67)—an aspect of the Judgment that received criticism from
some commentators writing at the time of the Award (see Kohen (1993), pp. 961–964).
99 Even without agreeing with the definition provided by Sir Robert Y. Jennings, which is reflected
in paragraph 67 (quoted above) of the 1992 Judgment in the Gulf of Fonseca case, a more restricted
view of this notion recognizes, in any case, “la pertinence des [faits postérieures à la date critique]
en tant qu’éléments de preuve pour éclaircir la situation existante à la date critique”, see Kohen
(1993), p. 961. See also ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 135, and
ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea,
paras 117 and 123.
A. Insolia