Gulf of Fonseca
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The Gulf of Fonseca (Spanish: Golfo de Fonseca), part of the Pacific Ocean, is a gulf in Central America, bordering El Salvador, Honduras and Nicaragua. On the Nicaraguan side, Cosiguina Peninsula ((Spanish) Península de Cosigüina) advances nearly halfway across its mouth; the peninsula is dominated by Cosiguina Volcano, part of the Maribios Range, and whose eruption on January 20, 1835 was the largest in Nicaragua's history. The eruption was heard 2000 kilometres away. Now considered dormant, its 2-kilometre wide crater is testimony to the estimated 8 cubic kilometres (nearly three times Mount Vesuvius' 79 A.D. eruption volume) it blew into the air, lopping off its top 500 metres —it now rises to 859 metres. Ash fell from Mexico to Colombia, and the Sun was blotted out of Nicaragua's skies for 36 hours.
In 1849, Ephraim Squier negotiated a treaty for the United States to build a canal across Honduras from the Caribbean Sea to the Gulf. Frederick Chatfield, the British commander in Central America, was afraid that American presence in Honduras would destabilize the British Mosquito Coast, and sent his fleet to occupy Tigre Island at the entrance to the Gulf. Shortly thereafter, however, Squier demanded the English to leave, since he had anticipated the occupation and negotiated the island's temporary cession to the United States. Chatfield could only comply.
All three countries - Honduras, El Salvador, and Nicaragua - with coastline along the gulf have been involved in a lengthly dispute over the rights to the gulf and the islands located there within. In 1992, a chamber of the International Court of Justice (ICJ) decided the Land, Island and Maritime Frontier Dispute, of which the gulf dispute was a part. The ICJ determined that El Salvador, Honduras, and Nicaragua were to share control of the Gulf of Fonseca. El Salvador was awarded the islands of Meanguera and Meanguerita, and Honduras was awarded the island of El Tigre.
[edit] History of the Condominium
By the end of the eighteenth century the Spanish colonial epoch was finally drawing to a close. On the continent, sustained guerrilla warfare against Napoleon’s France and the liberal demands brought forth by the enlightenment were to change Spanish ideals forever. The new king, Ferdinand VII, was forced by the immutable conditions of the time, to adopt a liberal constitution ceding traditional class privileges in tandem with many of his own monarchical powers. The effects on the Spanish American colonies were staggering. Having witnessed the legitimacy of their rule swept away overnight, the viceroy and his entourage soon found themselves in the midst of rebellion: first to the north in Mexico City and then south in Guerrero and Michoacan. Fearing the new liberal constitution of Spain would continue to exacerbate the class struggle in the Americas and deprive many colonisers of their advantages, independence was declared for ‘New Spain’ in 1821. Shortly, the various administrative districts ceded one by one from the new empire to form smaller units, basing their rule not on autocracy, but democracy. By 1823, Guatemala, Honduras, El Salvador, Nicaragua and Costa Rica could all claim statehood, their borders in accordance with the Uti Possidetis Juris principle: that is, determining the limits of territorial sovereignty by advocating the equivalence between the preceding administrative borders and new national borders. Throughout the mid nineteenth century Honduras, El Salvador and Nicaragua were riddled with regionalism and political instability. The effects of colonisation here had upset the social order to the extent that miscegenation was commonplace, the phenomenon owing to the vast numbers of Spaniards imported to maintain order. As such, the distribution of wealth among the elite was sparse and when Caudillos attempted to obtain financial and popular backing, the diaphanous nature of society meant coups were frequent but never very successful. However, the hospitality extended to the Caudillos by neighbouring States allowed for resuscitation of movements (in return for the promise of territorial concessions of course). It is not surprising then, that borders became as indistinct as the powers that presided over them. By 1854 the legal status of the islands in the Gulf of Fonseca came under contestation and the land boundary followed suit in 1861. What followed was an arduous series of manoeuvres eventually exploding into armed conflict over one hundred years later, in 1969. However, in 1972 the countries were able to reach an agreement over a portion of the land border, and in 1980 a peace treaty made provisions for a Joint Border Commission with referral to the International Court of Justice (ICJ) should the dispute remain unresolved at the end of a five year period. With no conclusion reached a Special Agreement was concluded on the 24th May 1986, requesting the ICJ to determine the disputed land frontiers, the jurisdiction over the islands in the Gulf of Fonseca and the same for the waters of the Gulf itself. This essay shall set forth the decision reached by the ICJ with sole regards to the maritime component and attempt thereafter to formulate a critique, detailing the deficiencies of the court’s decision.
The Gulf of Fonseca, in accordance with the 1982 Law of the Sea Convention, is classified as a juridicial bay and had it been encompassed by the territory of a single state, been closed off and classed as internal waters. The fact that the coasts of three states run adjacent to its waters discounts this possibility and as such, no definition nor past precedent existed to aid the court in its decision. However, in 1917 the Central American Court of Justice had delivered a decision of this very issue, providing the ICJ with a previous legal framework which it effectively reaffirmed. The Central American Court had expressed its wish that the bay be co-administered with the exception of a three nautical mile zone which would exist as territorial waters. The ICJ reissued the verdict, pronouncing its jurisdiction due to the exclusion of Honduras from the 1917 decision. The Gulf was to be governed as a condominium by the three concomitant states except where a three nautical mile territorial sea was generated by each state. It is with regards to the unusual, and at the time, unprecedented decision of the ICJ to issue a condominium that issue must be taken. Condominia were not paradigmatic at the time the decision was made. Indeed, France and Spain, in an 1879 declaration asserted the creation of a condominium with regards to the ‘Baie du Figuier’ at the Atlantic boundary between the two nations. What the decision did challenge, however, was the axiom that States must agree in order to perpetuate a successful condominium. It is clear that, should a state wish to exercise its exclusive right to sovereignty over a maritime district, little benefit can be gleamed from a forced condominium regime. Certainly, during the court proceedings both Honduras and Nicaragua expressed a desire to delimit the gulf, each producing evidence that this was their intention as early as 1900 when a delimitation agreement between the two states was ratified. The 1917 Central American Court decision (which the ICJ relied heavily upon when fashioning their proposal) had been continually rejected by Nicaragua who, in 1917, consolidated their position by issuing a formal statement to the ‘States of Central America’ stating that it did not accept the judgement. Despite these objections, the ICJ has perverted the prerequisites of a condominium so as to promote a unanimous show of hands when dissolving condominia rather than creating one: El Salvador, in favour of the condominium from the outset, continues to ignore protests from the two dissenters, imprisoning them in the court’s judgment. This has far reaching implications, not least the challenge to sovereignty, but rather than espouse the conjectural contradictions to the perceived rights of the international community, I shall instead construct a critique of the decision at an idiosyncratic level.
In its judgement, the court pronounced the Gulf an ‘historical bay’ and as such, decided all maritime law concluded after 1917 would not be relevant given the lack of provisions determining the nature of such a phenomenon. As was proven by the delimitation of the Gulf of Guinea as part of the resolution of the Nigeria-Cameroon case, the ICJ is happiest when adhering to consistencies and past precedent. This, advocates of which would argue, bestows uniformity upon the international area with regards to boundary formation. Cynics would say that it leaves the court with less work. It was clear that the latter opinion prevailed in the Gulf of Guinea when the judgement left a huge error in calculations and an oil well straddling the delimited boundary. Regardless of the decision from this instance, large discrepancies appear in the decision of the ICJ in this case also, for should it not be that if past precedent takes the form of a 1917 court verdict, surely the circumstances surrounding that judgement should be addressed to conclude the viability of the judgement at the time? Otherwise the decision would be akin to the world using carrier pigeons to transmit mail: A fair mode of information transportation for its time, but wholly unviable in the present informational climate and more to the point, fraught in hindsight, with inefficiencies. It is my opinion that had a thorough analysis been performed with regards to the inadequacies of the system in 1917, the court would not have deemed the perpetration of a condominium as the most suitable settlement. Herein lays my argument for such a claim:
The first question should be whether the colonial period under the Spanish is a strong enough pretext to necessitate a condominium. After all, native Hondurans resisted Spanish colonialism, and, by some accounts, almost managed to drive the colonisers from the mainland. The indigenous Lenca tribe rebelled against the Spanish in 1538 but were dealt a fatal blow when their leader, Lempira, was assassinated during peace talks. The only argument legitimising colonisation of the region was that of a ‘just war’, claiming the violent conquests conducted globally by the Spanish, British and French were in the name of Christ, the justification of which was based around Aristotelian metaphysics and subsequently outmoded in the wake of the Enlightenment. It was such then, that by the end of the eighteenth century that both the indigenous population and the colonisers understood that due to the evolving morality that dominated the European mindset and as such, conventional law, the Spanish had no legal basis to remain in control. Yet despite these facts, the Court claimed the legal basis of the condominium as a vestige of Spanish hegemony, a claim long since destroyed politically, philosophically and legally. To further the argument we could even state that during the colonial period, the Spanish simply could not exercise sovereignty over the Gulf. Before maritime law was restructured by the United Nations, the customary principles lay in a treatise penned in 1609 by Grotius: Mare Liberum. In his article Grotius espoused the idea that the ocean is a vast area of inexhaustible resources, to which universal access should be axiomatic (provided, of course, the correct etiquette be adhered to whilst traversing the seas). Not only does this principle dispense with the pretext that the Gulf of Fonseca had belonged to Spain during their colonisation of Central America, but also that any form of effectivité exercised over the waters could be reduced to merely upholding Grotius’ law with regards to etiquette: namely combating piracy and smuggling. To expound upon the punishment for piracy will hopefully elucidate the reasoning as to why records of policing in the Gulf by Spain could never amount to what would today be viewed as an historical example of possession. Piracy, to this day, has been subject to time-honoured international cooperation. As early as 1700, the first legal documentation, issued by the British, confirmed as much by stating Britain’s right to prosecute pirates wherever they were found, the ‘Act for the More Effectual Suppression of Piracy’ also enforced the use of the death penalty, gave rewards for resisting pirate attack and was not trial by jury but by a special court of naval officers. The law was passed extremely quickly, in part to effect the trial of the infamous Captain Kidd. He was hanged at Execution Dock in Wapping where his body was placed in a gibbet and coated with tar to help preserve it. His remains were displayed at Tilbury Point to be a “terror to all that saw it.” The blackened and rotting corpse was intended to serve as a lucid reminder to the common seaman of the risks of privateering. Presently, piracy is still the subject of international law; the most important legislative ‘jump’ was the signing of the 1958 Convention on the High Seas in Geneva. Although this Convention was superseded by the 1982 Law of the Sea, the clauses related to piracy remained nearly identical, declaring that “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” Thus for centuries the same precedent has remained in place, advocating international cooperation on the high seas with regards to combating piracy. If the same can be said of fishing on the high seas prior to the invention of the Exclusive Fishing Zone (and thereafter the availability of stocks through quota delegation), then the immutable conditions governing maritime law cannot be claimed to have advocated exclusivity of external waterways. Hence effectivité simply could not have been exercised by the Spanish.
The legitimacy of the Central American Court should also be called into question. It had existed, in various manifestations, from as early as 1902, when it was expressed in the Corinto Convention – signed by all the Central American States (save Guatemala) – invoking regional tribunals or arbitrators to resolve cross border disputes. The signature of failure came in 1906 when Guatemalan revolutionaries attempted to overthrow the dictator Cabrera, a war drawing in both El Salvador and Honduras. The war ended with US intervention and a pact, signed onboard the USS Marblehead, resurrecting the tribunal initiative which failed to settle the very first dispute put to it. The final version of the Central American Court, the one which issued the condominium between Nicaragua and El Salvador, was established in Washington, USA, in 1907. Nicaragua’s rejection of the 1917 Condominium verdict aside, this Court also dissolved after failing to condemn the Bryan-Chamorro Treaty between the USA and Nicaragua. The Central American Court only existed to alleviate the pressures of international relations for these fledgling governments already inundated with the domestic intricacies of trade, constitution and infrastructure. To assume these political novices would have been able to delimit the Gulf had they wished to, in the midst of internal strife, coupled with the embryonic state of maritime law is akin to expecting a baby to walk before it can crawl. That Nicaragua and Honduras hammered out an agreement during this difficult time is testament to the desire for delimitation.
It is clear that the grounds for instituting a condominium were tenuous at best, but evidence since the decision also points to the unfeasibility of the regime. There is an ongoing conflict between Honduras and Nicaragua over maritime zones in the Caribbean Sea which frequently leads to militarised incidents. During the weekend of the 16th – 17th December, 1995, a Nicaraguan coastguard contingent stopped and inspected four Honduran fishing boats and subsequently arrested over a hundred crewmen. A fire-fight ensued in which a Nicaraguan sailor and a Honduran fisherman were wounded. Nicaragua released ninety-four of the fishermen few days later, but retained twelve Hondurans and eight Nicaraguans for questioning. They also promised to investigate the incident and apologized to Honduran authorities. On the 22nd December, 1995, in response to the incident, Honduras threatened to open fire on any Nicaraguan patrol boats in the disputed waters. In retaliation, Nicaragua announced that it would continue patrols off Cape Gracias a Dios on Nicaragua’s northern Atlantic coast, and warned that its navy boats would act against hostile manoeuvres. While this latter incident does not concern the Gulf of Fonseca, it is a further indication of the hostilities between the Honduran and Nicaraguan governments, manifested in a display of contestation over territorial sovereignty. If this is indicative of the tone in which the governments relate then far from improving relations in Central America, a condominium decision in the Gulf serves only to encourage conflict by blurring the boundaries between the states, especially given the deployment of territorial waters. Indeed in April 1995, following an agreement on their ongoing conflict over the territorial waters in the Gulf of Fonseca, Nicaraguan armed forces captured four Honduran fishing boats and eight fishermen; each side claiming that the Honduran fishermen were in its own territorial waters when arrested. The boats were detained on a small Nicaraguan island by Nicaraguan authorities, prompting the deployment of Honduran police and naval authorities, inevitably leading to the break out of armed conflict. Another naval clash occurred on the 31st May 1995 as Honduran armed forces tried to prevent Nicaraguan armed forces from arresting Honduran fishermen in the Gulf of Fonseca, who were allegedly fishing in Nicaraguan waters. Nicaragua asked Honduras to intervene to prevent ‘future incidents’, but given Honduras’ avowal to press for delimitation in the Gulf, stringent regulation of the territorial waters would always be a precursor to the grand scheme. Consequently a Nicaraguan officer was detained by Honduras while he was either standing guard over a captured Honduran fishing boat or trying to tow a captured fishing boat to port (reports vary). The deal struck returned the officer to Nicaragua on the 2nd June, 1995, in exchange for the release of the fishermen Nicaragua had arrested. On the 13th June, 1995, in order to prevent armed Honduran fishermen from encroaching in their territorial waters, the Nicaraguan navy reinforced patrols of its territorial waters in the Gulf of Fonseca by transferring additional boats to the area and intensifying operations. Three days later, Honduras and Nicaragua agreed to start demarcating the waters of the Gulf with buoys, starting in the first week of July.
The rational of the 1917 Judgement appears to be this: the condominium decision is resultant of the fact that since the time of independence, no delimitation between the three countries has been undertaken; and while the absence of delimitation does not always result in community, the undelimited waters of the Gulf have remained undivided and in a state of community. Furthermore, the existence of a community is assumed as a result of continued and peaceful use of the waters by all three riparian States after independence. The Chamber held that the Central American Court was correct, as a matter of international law, in affirming that the mere absence of the delimitation of maritime territory cannot be said of itself always to entail a joint sovereignty over that area. Of importance, however, is not what is always true, but what paradigms must be addressed in individual cases. The maritime area in question had long been historic waters under a single power's sovereignty, apparently without any demarcated administrative limits, and was, in l82l, jointly acquired by the three States by reason of the succession. That seems to be the essence of the decision of the Central American Court for this confined maritime area which so intimately concerns all three coastal States. Unfortunately, due to the flagrant disregard of the discrepancies concerning the 1917 decision, the ICJ failed to address the dispute with the scrutiny this particular paradigm deserved. Thus far El Salvador has successfully managed to remain steadfast against the two dissenting nations and the condominium, although lamented, remains. Certainly there is no reason why co-ownership should not exist over maritime territory per se, but to put this scenario in context, a joint sovereignty initiative (which is not accepted) governs the Gulf on the basis of past precedent (which was rejected) established by the Central American Court of Justice (which was not credible) because it was the natural course after the Spanish decolonised the region (which was not in keeping with the then political climate).
