46. Guinea vs. Guinea Bissau

Facts:

The two former colonial states located in West Africa were embroiled in territorial dispute specifically with regards to maritime delimitation. Guinea was a former French colony which obtained its independence on 1958 while Guinea Bissau got independent from Portugal in 1973 well after Guinea’s actuations in 1964 made it seem that it was pursuing a maritime delimitation of its boundary according to the parallels of latitude doctrine, that is its marine territory extended from its outermost coastal landmass boundary and up to 12 miles outerward parallel to the latitude in accordance with the convention on the LAW of the Sea. To this claim Portugal, which was then administering Guinea – Bissau made no objection. However Portugal granted oil concessions in areas well within the marine territory claimed by Guinea but the latter did not make any formal protests against it. In 1973, Guinea-Bissau gained its independence from Portugal and adopted all Portuguese laws not incompatible with its own. Later that year, Guinea-Bissau published its claim of territorial seas in the Official Journal. Guinea-Bissau's claim was substantially the same as that claimed by Portugal. Again, Guinea did not protest that the claim overlapped its own. By 1975, Guinea-Bissau had denounced all of the Portuguese oil concessions off the Guinean coast and started its own seismic research operations in the area subject to both nations' claims of territoriality.

In April 1977, Guinea-Bissau initiated maritime delimitation negotiations with Guinea. Both countries acknowledged that a settlement was necessary in order to develop the maritime resources - no oil c. In December 1982,18 representatives of the countries agreed to submit the dispute to an Arbitral Tribunal. On February 18, 1983, the states signed a Special Agreement to submit to arbitration their dispute. The tribunal was composed of 3 judges 2 of whom are nationals of the respective contesting nations while the third judge was nominated by the 2 judges. The main bone of contention between the two nation’s claims was whether the Convention of 12 May 1886 between France and Portugal establish the maritime boundary between the respective possessions of those two states in West Africa.

The last paragraph of Article I states:

“Shall belong to Portugal all islands located between the Cape Roxo meridian, the coast and the southern limit represented by a line which will follow the thalweg of the Cajet River, and go in a southwesterly direction through the Pilots' Pass to reach 100 40' north latitude, which it will follow up to the Cape Roxo meridian.”

Issues:

1. Did the Convention of 12 May 1886 between France and Portugal establish the maritime boundary between the respective possessions of those two states in West Africa?

2. How should the case be decided in light of Guinea’s argument for maritime delimitation via the parallels of latitude doctrine against the argument of Guinea Bissau’s adherence to the equidistance rule as enunciated in the North Sea Continental Shelf Case?

Ruling:

With regard to the land boundary between Guinea and Guinea-Bissau, both parties affirmed the modern validity of the Convention as it was agreed to by France and Portugal in 1886 and further held that a newly formed government to respect state boundaries as they exist at the time of the new state's independence. With this in mind there was no dispute that the land boundary between the two States is settled. However, The Tribunal considered the "complete absence of the words waters, sea, maritime or territorial sea" to be clear evidence that the Convention was essentially concerned with land possessions and that therefore recourse to international customary law should be made to delimit their maritime boundaries.

Following the 1984 Gulf of Maine case, decided by the International Court of Justice, the Tribunal stated the international customary law could provide "only a few basic legal principles, which lay down guidelines to be followed with a view to reaching an essential objective." The Tribunal's express essential objective was to find "an equitable solution [to the dispute) with reference to the provisions of Article 74, paragraph 1, and Article 83, paragraph 1, of the Convention of 10 December 1982 on the Law of the Sea." The rules referred to allow the Tribunal to examine the factors of each case against the backdrop of the considerations of law. Due to the nature of the West African coastline and the fact that there were few settled maritime boundaries fixed in the area, the Tribunal found it necessary to consider the effect its decision would have on neighboring countries' maritime claims. The central concept of the Tribunal's analysis was that each State should control the waters opposite its coast.

After examining each parties’ objections and special considerations, the Tribunal upheld and confirmed the proposed maritime boundary between Guinea and Guinea-Bissau.

a) First following the "southern limit" of the 1886 Convention, i.e., the Pilots' Pass from the mouth of the Cajet River and the parallel of the 10° 40' north latitude, as far as the island of Alcatraz. Because, in this way, the island in question would have only 2.25 nautical miles of territorial waters to the north - and there is even less reason to grant more in this direction in that the "southern limit" marked the maximum claim by Guinea in its conclusions - the Tribunal would consider it equitable to grant it, at least towards the west, the 12 nautical miles provided for in the 1982 Law of the Sea Convention, without however taking into account any reefs. The "southern limit" could therefore be adopted as far as 12 miles west of Alcatraz.

b) The line would then go in a southwesterly direction, being grosso modo perpendicular to the line joining the Almadies Point and Cape Shilling. This would give just one straight line bearing 236. The Tribunal considers that such a line would re-duce the risk of enclavement to a minimum and, in this re-spect, would be more satisfactory than any line drawn perpen-dicular to the other lines envisaged .. .2

41. El Salvador vs. Honduras ( with Nicaragua intervening)

Facts: The boundary dispute between Honduras and El Salvador has persisted since the middle

of the nineteenth century. These two independent states were created after the collapse of the Spanish Empire in Central America. From the time that Central America declared its independence on September 15, 1821 until 1839, Honduras and El Salvador joined with Nicaragua, Costa Rica, and Guatemala to form the Federal Re-public of Central America.7 4 After the break-up of that Republic in 1839, Honduras, El Salvador, and the other Central American territories became separate states.

For years, the land disputed between these two states were simmering until it culminated in the Soccer wars of 1969 . The dispute were centered principally on the islands of and the Gulf of Fonseca itself , a small bay guarding the coastal entrance to the countries involved in the case.

Finally they entered into The Convention for the Adoption of a Mediation Proce-dure Between the Republics of El Salvador and Honduras con-cluded on October 6, 1976 and named the former President of the ICJ, Jos6 Luis Bustamante y Rivero, as mediator."' The mediation process began on January 18, 1978 and resulted in a General Treaty of Peace that both parties signed on October 30, 1980. Article 16 of the General Treaty commemorated the agreement of the parties to delimit the boundaries in the undisputed areas and declared that a Joint Frontier Commission should delimit the frontier in the six unsettled areas as well as determine the legal status of the islands and the maritime spaces. In addition, Article 31 of the General Treaty required the parties to negotiate and draft a Special Agreement to submit any unresolved controversy to the ICJ if total agreement was not reached within five years."

Since the Commission was unable to reach a satisfactory settlement," Honduras and El Salvador complied with the terms of the General Treaty and invoked the voluntary jurisdiction of the World Court by submitting their case to the International Court ofJustice by a Special Agreement of May 24, 1986.1 16 According to Article 35 of the General Treaty, the express submission of the frontier dispute to the voluntary jurisdiction of the World Court prevailed over any reservations to compulsory jurisdiction made by the states in their declaration.

Issue:

1. What is the nature of the uti possidetis principle?2. How is the uti possidetis principle to be applied in the absence of persuasive

documentary evidence?

Ruling:The Spanish-American legal principle uti possidetis juris involves a determination of

territorial boundaries by an assessment of the parties' rights at the time of independence from the colonizer or the State granting independence. Although uti possidetis juris was not mentioned specifically in either the General Treaty of Peace or the Special Agreement, both parties as well as the Chamber accepted it as the fundamental principle for the determination of the land boundary. 148 The Chamber acknowledged the importance of the principle but noted the difficulty of determining the precise boundaries of the colonial administrative divisions that became Honduras and El Salvador in 1821. Although the parties each specified the provinces to which they claimed to have succeeded, neither party submitted any legislative documents in-dicating the actual proportions of the territories and location of the boundaries. To establish the role of the effectivitis, the Chamber focused on the importance of determining the boundaries ac-cording to the principle of uti possidetis juris and concluded that it could consider only

documentary evidence of colonial effectivitis at the time of independence. Although the Chamber recognized the difficulty in collecting such evidence, the Chamber refused to infer the existence of evidence that had never been submitted. The Chamber, however, held that it would consider documentary evidence of post-independence effectivitis only if it aided in the determination of the boundary that existed in 1821.

By applying the uti possidetis juris principle, interpreting Spanish colonial land titles, and examining evidence of post-colonial effectivitis, the Chamber delimited the land boundary in the six disputed areas. Although the Chamber primarily relied on the uti possidetisjuris principle to determine the land boundaries, it took account of the suitability of certain topographical features to provide a practicable and functional boundary in each of the disputed areas.

The Chamber ruling gave Honduras full control of the disputed land segment at the delta of the Goascorin River and nearly full control of two other segments along the Negro-Quiagara and the Sazalapa Rivers. El Salvador was awarded most of the disputed area near Guatemala, and half of the two segments along the Sumpul and Torola rivers.