Títulos Ejidales: El Salvador v. Honduras (1992)
BOUNDARY DISPUTES IN LATIN AMERICA
In the the 1992 Land, Island and Maritime Frontier Disputes (Nicaragua Intervening), El Salvador and Honduras asked the International Court of Justice (ICJ) to delimit six sections of their international land boundary and to determine the legal situation of the islands and maritime spaces in the Gulf of Fonseca. The case is typical of Latin American boundary disputes in that:
1. The dispute is over land boundaries that date from colonial times (Dominguez et al., 2003).
2. The parties agreed at the outset that the dispute was to be settled in accordance with uti possidetis de jure.
3. The parties to the dispute were unable to produce any legislative documents that definitively defined the boundary (Glassner, 1998, p. 249).
4. The boundary is in a remote region that had not been mapped or surveyed by official cartographers; the disputed areas are often represented on colonial maps as terra nullius (empty land).
5. The judgment almost completely ignores the Territorial rights of the local Indigenous population (Gilbert, 1999; Castellino, 2004).
The disputed lands in El Salvador v. Honduras were (and are) the traditional territories of the Chorti Mayan, Lenti, and Pipil Peoples of Central America.
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UTI POSSIDETIS AND TITULOS EJIDALES
El Salvador and Honduras asked the ICJ to settle their boundary dispute by determining the uti possidetis line of 1821. The ICJ was to determine the location of provincial boundary between El Salvador and Honduras on 15 September 1821, the day the countries declared independence from the Spanish Crown. What was once the provincial boundary would then be converted into an international boundary.
El Salvador’s position was that the ICJ should take Indigenous titulos ejidales (title to the commons) in account when deciding the uti possidetis line. Titulos ejidales were land grants that that the Spanish Crown had issued to the Indigenous communities in the seventeenth and eighteenth centuries. At the time of independence, most of the territory that El Salvador and Honduras were now disputing had been the subject of grants of various kinds. In Latin America, Indigenous ejidales are endowed lands that were established in the colonial period and placed under the control of the colonial municipalities or villages. It is important to note, as Greer (2018, p. 73) does in his work on Indigenous property systems, that the Spanish Crown did not “grant” the land to the Indigenous pueblos. Unlike the English and French in North America, the Spanish recognized the prior existence and legitimacy of Indigenous property. Indigenous title was accepted as primordial and the courts did not require documentary proof from Indigenous Peoples as they would have if a Spaniard was claiming title.
For El Salvandor, the titulos ejidales were “the best possible evidence, the supreme means of proof” of the 1821 boundary line. The titulos ejidales acknowledge that Indigenous peoples used their territories for subsistence planting and harvesting, while also showing that the territories has been placed under the administrative control of the Spanish-run municipalities (Evans, 1992). The documents also establish that the Indigenous tribes of the borderlands had possessed their territories since time immemorial. They prove (justly or unjustly) that the Spanish-led municipal authorities had been granted jurisdiction over the indigenous poblaciones, which were in turn overseen by the provincial authorities of either El Salvador or Honduras.
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TECPANGUISIR MOUNTAIN
Tecpanguisir Mountain was the first of the six boundaries that the ICJ was asked to delimit. Tecpanguisir Mountain lies between the El Trifinio (tripoint) boundary marker that divides Guatemala, Honduras, and El Salvador in the west and the peak of El Zapotal Mountain in the east. According to the Salvadorean memorial, Tecpanguisir Mountain had been inhabited since time immemorial by the Indigenous peoples of San Francisco Citalá in the Spanish Colonial Province of San Salvador [1]. The land west of the River Lempa had “always been cultivated by the Indian population of Citalá,” while the land to the east belonged to the Ocotepeque tribes of the Honduran province.
El Salvador produced the titulos ejidales from 1658, 1702, 1742, and 1776. The 1776 titulos ejidales were particularly important for the Salvadorean case as they documented the request of the Indigenous Peoples of Citalá that the Spanish authorities measure Tecpanguisir Mountain so that… The Spanish authorities granted the request. They measured the mountain and agreed to extend the boundaries of the Citalan lands so that the Indigenous Peoples would have a larger area for planting and harvesting. For El Salvador, the titulos ejidales proved that the Indigenous township of Citalá was located within the Province of San Salvador, that the town had had been granted title to the commons of Tecpanguisir Mountain, and that the administrative control of the Citalá fell under the Province of San Salvador [2].
The Tecpanguisir Mountain boundary dispute was a long-standing dispute between the Citalá Peoples of El Salvador and the Ocotepeque Peoples of Honduras. Honduras countered the titulos ejidales of 1776, however, and argued that the boundary between the Citalá and the Ocotepeque Indigenous communities was irrelevant when determining the uti possidetis line of 1821. The 1776 titulos ejidales may have modified the boundary between the Indigenous Peoples of Citalá and Ocotepeque, but it did not modify the border between the provinces of El Salvador and Honduras. In short, the boundary between the Indigenous communities was irrelevant when deciding upon the uti possidetis de jure line of 1821 [3].
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THE ICJ JUDGMENT
The ICJ sided with Honduras. The ICJ rejected the 1776 titulos ejidales in favour of postcolonial documents that were published in 1881, 1884, 1914, and 1935 [4]. The ICJ ruled that the conflict over the Tecpanguisir Mountain boundary line was best understood as originating in a discrepancy in a 1935 document that defined the latitude and longitude of the tripoint marking the border of Guatemala, El Salvador and Honduras [5]. According to the ICJ, the discrepancy was the result of the choice of different datum [6].
Michael Reisman (1999, p. 356-358) calls the ICJ’s decision “astonishing.” El Salvador had invited the ICJ to examine uti possidetis claims based on the earlier rights of the Indian poblaciones. El Salvador had “selected indigenous law as the law that might have governed the acquisition or retention of title as one of the temporal links through which international title could be traced” (p. 358). The ICJ’s rejection of the titulos ejidales meant that “a juridical value for indigenous rights was denied, even in a case where the parties had authorized the Court to take account of them” (p. 356).
The judgment is typical of the ICJ, as the Court addresses “only the issues raised by the formal parties before them, which, under the rules of the game established by states, can only be states” (p. 356). According to Reisman, Indigenous peoples at the ICJ are consigned to a kind of “international legal shadow land” rendered “essentially invisible” and “treated, legally, along with the flora and fauna of the land concerned” (p. 356).
Koivurova (2010) concurs with Reisman. The ICJ’s judgment did not “accord weight to indigenous peoples, even though the peoples were living in the territories on which the states’ dispute turned” ( p. 174). The ICJ ruled that anything pertaining to the precolonial Indigenous legal order was irrelevant and instead based it’s decision on postcolonial documents and postcolonial effective occupation. The ICJ was constrained, however, because “as the international community is built on states, not peoples, so, too is international law, the body of law that the ICJ is supposed to apply” (Koivurova, p. 157). Under international law, peoples (nations) have rights and duties “only to the extent that they are states” (Koivurova, 2010p. 158). The boundary adjudication process at the ICJ assumes a statist, property-based conception of territorial rights.
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SUMMARY
El Salvador argued that the ICJ ought to take the pre-colonial Indigenous boundaries into account when deciding upon the uti possidetis line of 1821 and that the Court ought to accord documentary proof to the titulos ejidales (title to the commons) granted by the Spanish Crown to the local Indigenous communities. The ICJ rejected El Salvador’s position and ruled in favor of Honduras, who argued that it was the administrative boundaries between the Spanish colonial provinces, not the boundaries between Indigenous settlements, that form the basis of the uti possidetis de jure line.
It should be noted, however, that El Salvador’s argument was not made in order to uphold contemporary Indigenous land Rights. Rather, it is a state-centric position that views the titulos ejidales as valuable only insofar as they provide evidence for state territorial claims. Their position portrays a deeply problematic view of Indigenous Peoples and their lands as instrumentally valuable. It should also be noted that both El Salvador and Honduras’s arguments to the ICJ make repeated reference to Indigenous priority claims, Indigenous settlement patterns, and Indigenous Title. At the same time, however, El Salvador and Honduras only discuss the Indigenous Peoples of Citalá and Ocotepeque in the past tense. They make no mention of the contemporary Indigenous Peoples and how they might be affected by the dispute.
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[1] The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.5.
[2] The Land, Island and Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13.
[3] The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13.
[4] The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 68, p. 402.
[5] The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 68, p. 402.
[6] The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 68, p. 402.
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Castellino, J. (2003). The ‘right’ to land, international law and indigenous peoples. In J. Castellino and N. Walsh, International Law and Indigenous Peoples (pp. 89-96), Leiden, NLD: Martinus Nijhoff Publishers.
Domínguez, J. I. (2003). Boundary Disputes in Latin America. Peaceworks, 50, 1-45. Washington, D.C.: The United States Institute of Peace.
Evans, M. (1992). Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)—the Nicaraguan Intervention. International & Comparative Law Quarterly, 41(4), 896-906.
Gilbert, J. (2006). Indigenous peoples’ land rights under international law: From victims to actors. Ardsely, NY: Transnational Publishers.
Glassner, M., & C. Fahrer. (2004). Political geography. Hoboken, New Jersey: Wiley.
Greer, A. (2018). Property and dispossession: Natives, empires and land in early modern North America. Cambridge, U.K.: Cambridge University Press.
Koivurova, T. (2010). Sovereign states and self-determining peoples: Carving out a place for transnational indigenous peoples in a world of sovereign states. International Community Law Review, 12, 101-212.
Reisman, M. (1995). Protecting indigenous rights in international adjudication. Faculty Scholarship Series. Paper 885.
