Jura novit curia? Condominium in the Gulf of Fonseca and the "local illusion" of a pluri-state bay.

• Author: Rossi, Christopher R.

1. INTRODUCTION II. CONDOMINIA IN INTERNATIONAL LAW III. THE HISTORICAL SETTING A. Pre-Independence: 1522-1821 B. Post-Independence: 1821-1917 IV. CONDOMINIUM AND OUTSIDE INTERESTS; CONDOMINIUM AND HARMONY OF INTERESTS V. THE BRYAN-CHAMORRO TREATY AND ITS AFTERMATH VI. THE 1917 DECISION OF THE CACJ AND ITS AFTERMATH VII. CONCLUSIONS I. INTRODUCTION

   The concept of sovereignty as an indivisible building block of the state system dates to the Peace of Westphalia in 1648. (1) A doctrinal formulation introduced earlier by Jean Bodin (1530-1596) (2) distilled to the "absolute, and perpetual power" of an individual to rule over subjects and territory. (3) This personification of the individual as ruler found artistic and iconic expression on the copper-plate engraving adorning the title page of the first English language edition of Hobbes' Leviathan (1651). (4) The inscription at the top of the copper-plate, serving as the motto of the sovereign, derives from the Book of Job (41:33): Non est potestas super terram quae compareteur ei: "Upon earth, there is not his like." The uniqueness of the sovereign, the magnus homo, (5) meant he had no earthly counterpart with whom to divide or share power; as French king Louis XIV (1638-1715) purportedly quipped, "L'Etat c'est moi." (6) Carl Schmitt, Hobbes' twentieth century admirer, interpreted the Leviathan engraving as contributing powerfully to the evocative effect of the book, (7) and doubtless, to the enduring significance of the concept of undivided sovereignty. Few concepts in international law have endured as long or have been subject to as much scrutiny and diatribe. (8)

   In an age where this "dogma of sovereignty" still influences international legal discussion, (9) how curious is it to consider the prospect of an amalgam of sovereignties presiding indivisibly over joint property, where states are granted a jus prohibendi, enjoining "one joint owner from doing anything" harmful to the interests of other socii (associates)? (10) And how more curious is it to consider the extension of this essentially territorial concept seaward, to a realm once thought by Hugo Grotius (1583-1645) so immense it could never be possessed? (11) Analogized from private property concepts of Roman law (pro indiviso communis), (12) these curious adaptations resulted not by international agreement among states, but by the judgment of the Chamber of the International Court of Justice (ICJ) in the historically complicated case involving the Gulf of Fonseca and the 1992 Land, Island and Maritime Frontier Dispute Between El Salvador and Honduras, with Nicaragua Intervening (Gulf of Fonseca case). (13) There, the Chamber gave juridical expression to the pelagic adaptation of the concept of condominium. (14)

   This Article investigates the legal and historical bases for this application of condominium, which found expression in the Chamber's determination that the maritime space in dispute--the Gulf of Fonseca--constitutes "a condominium" of "co-ownership"; (15) not simply of "an historic bay" (16)--but of "an enclosed pluri-State bay"; (17) it characterized the Gulf as a "closed sea" (18)--but "subject to a joint sovereignty of ... three coastal states," (19) having "internal waters"--but "subject to a special and particular regime not only of [threefold] (20) joint sovereignty but of rights of passage." (21)

   In judicial administration, the presumption of jura novit curia reigns: "The court knows the law," which it may apply ex officio, that is, independent of the legal arguments of the parties in dispute. (22) But in this case, did the Chamber know its facts? And after wending its way through land, island, and maritime geo-space regimes, involving by its own estimation "a kind of bay for which ... there are notoriously no agreed and codified rules," (23) where did the Chamber find this curious law about sharing sovereignty?

2. CONDOMINIA IN INTERNATIONAL LAW

   Condominium arrangements arise when two or more states exercise joint sovereignty over a territory. (24) The concept "is not common in the relations among nations," but its appearance is "not an inconceivable or an isolated fact." (25) Such arrangements resemble the "community of interest" standard governing riparian relations, where the interest in a navigable river becomes "the basis of a common legal right." (26) Although often confused with other post-war or post-colonial administrative arrangements, such as mandates, trusts, non-self-governing territories, and protectorates, condominia retain their significance because their purpose and scope attach to the administering powers rather than to third parties, and they are intended to be longstanding if not permanent arrangements. (27)

   There is some doctrinal variance. Hans Kelsen, for example, wrote of condominium in the proposed rule over post-Nazi Germany, (28) and again when the United States, Soviet Union, Great Britain and Provisional Government of the French Republic signed the Berlin Declaration of 5 June 1945. (29) In his construction, the temporal element was less important than the special quality of the new political order created: he employed the concept in the post-war German context given what he considered to be a sui generis circumstance: all continuity with the previous political order was to be destroyed through its application and the "new constitution of sovereign Germany would not be the result of a constitutional or revolutionary change" from within. (30) In contrast, the Chamber in the Gulf of Fonseca case "relied on principles of state succession" (31) and detailed references to historical continuity to validate its application--the opposite of Kelsen's formulation. But the Chamber nevertheless "found it sensible to regard the waters of the Gulf and the subject of the condominium of ownership, as sui generis." (32)

   Despite notable historical examples, (33) recourse to the concept has been limited and generally "dismissed" both as a means of dispute settlement and territorial administration. (34) A leading international legal treatment of the concept calls it "incompatible" with modernity, an "historical relic from the feudal age," and a "patently inadequate anomaly" that has never established itself in modern international law as anything more than an exigent stop-gap measure of last resort. (35)

   J.H.W. Verzijl referred to it as "peculiar and exceptional," citing the provisional condominium created in 1920 with the Free City of Danzig and surrounding communities. (36) Others have investigated its provisional application, for example as between the United States and Great Britain and their joint control over the Oregon Country/Columbia District of the Pacific Northwest from 1815-1846, (37) in the Atacama desert region of Bolivia/Chile/Peru, (38) in the 1910/1912 trilateral conferences among Norway, Sweden, and Russia on the High Arctic administration of Spitsbergen (Svalbard), (39) or in regard to the historical oddity of tiny Andorra, which from 1278-1993 was administered jointly by France and the Catalan Bishop of Urgell. (40) Part of this "exceptional" treatment stems from condominium's incompatible relation to sovereignty, as classically construed above. Another part relates to a perceived lack of need for the concept. Hersch Lauterpacht thought it practical only where "an atmosphere of understanding or co-operation" prevails between two states, "in which case solutions more simple than a condominium will be found in the first instance." (41) The Chamber in the Gulf of Fonseca case seemingly agreed, noting it would be "difficult to see how such a structured system of joint government could be created" absent agreement. (42) Problematically, the Chamber went on to apply the concept over the objections of two of the three parties involved. (43)

   Notwithstanding its rare appearance in modern relations, the concept intrigues international legal scholars, who periodically revisit its prospects in disputed boundaries, including Gibraltar, Brcko in the former Yugoslavia, the West Bank and Gaza, the Caspian Sea, and in pelagic spaces such as the Barents Sea, the Baie du Figuier, possessed jointly by France and Spain, and Lake Constance, located on the adjoining shores of Germany, Switzerland, and Austria. (44) It has received an indirect boost in attention from the work of Elinor Ostrom and common-pool resource theorists. (45) These theorists investigate the often informal but enduring joint management "rules" regarding natural or human made resources deemed too large to exclude beneficiaries from use. (46) The concept of condominium is not far removed from proposals involving joint administration of the global commons, making its significance more important than is perhaps appreciated.

   But its controlling appearance in the Gulf of Fonseca case stands out and is almost alone in the jurisprudence. In dissent, the erudite and meticulously systematic Judge Shigeru Oda (47) rebuked the Chamber for its application of jura novit curia. Judge O da intimated that the Chamber engaged in a perilous form of judicial innovation, claiming the Chamber's condominium articulation of an historic, pluri-state bay had no basis in law. (48) He had problems with the Chamber's usage of the term "historic bay," which found hardly any legal support prior to 1910, (49) and could not be granted legal status sua sponte, as a sui generis regime; (50) he had problems with the notion that a bay, regardless of its description geographically or historically, could be accorded special legal status as one united area as between two or more riparian states; (51) he had problems with the conflated treatment of the waters within the bay, as "internal waters" and as "territorial sea." He argued that sea waters adjacent to the coasts of states admit to one of two conjoined legal descriptions:52 they are either territorial seas, which provide for a right of innocent passage, or internal waters, which...