C 4/CR 91/43
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
YEAR 1991
Public sitting of the Chamber
held on Friday 7 June 1991, at 10 a.m., at the Peace Palace,
Judge Sette-Camara, President of the Chamber, presiding
in the case concerning the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening)
__________________
VERBATIM RECORD
__________________
ANNEE l991
Audience publique de la Chambre
tenue le vendredi 7 juin 1991, à 10 heures, au Palais de la Paix,
sous la présidence de M. Sette-Camara, président de la Chambre
en l'affaire du Différend frontalier terrestre, insulaire et maritime
(El Salvador/Honduras; Nicaragua (intervenant))
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COMPTE RENDU
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Present:
Judge Sette-Camara, President of the Chamber
Judges Sir Robert Jennings, President of the Court
Oda, Vice-President of the Court
Judges ad hoc Valticos
Torres Bernárdez
Registrar Valencia-Ospina
___________
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Présents :
M. Sette-Camara, président de la Chambre
Sir Robert Jennings, Président de la Cour
M. Oda, Vice-Président de la Cour, juges
M. Valticos
M. Torres Bernárdez, juges ad hoc
M. Valencia-Ospina, Greffier
___________
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The Government of El Salvador is represented by:
Dr. Alfredo Martínez Moreno,
as Agent and Counsel;
H. E. Mr. Roberto Arturo Castrillo, Ambassador,
as Co-Agent;
and
H. E. Dr. José Manuel Pacas Castro, Minister for Foreign Relations,
as Counsel and Advocate.
Lic. Berta Celina Quinteros, Director General of the Boundaries'
Office,
as Counsel;
Assisted by
Prof. Dr. Eduardo Jiménez de Aréchaga, Professor of Public
International Law at the University of Uruguay, former Judge and
President of the International Court of Justice; former President
and Member of the International Law Commission,
Mr. Keith Highet, Adjunct Professor of International Law at The
Fletcher School of Law and Diplomacy and Member of the Bars of
New York and the District of Columbia,
Mr. Elihu Lauterpacht C.B.E., Q.C., Director of the Research Centre
for International Law, University of Cambridge, Fellow of Trinity
College, Cambridge,
Prof. Prosper Weil, Professor Emeritus at the Université de droit,
d'économie et de sciences sociales de Paris,
Dr. Francisco Roberto Lima, Professor of Constitutional and
Administrative Law; former Vice-President of the Republic and
former Ambassador to the United States of America.
Dr. David Escobar Galindo, Professor of Law, Vice-Rector of the
University "Dr. José Matías Delgado" (El Salvador)
as Counsel and Advocates;
and
Dr. Francisco José Chavarría,
Lic. Santiago Elías Castro,
Lic. Solange Langer,
Lic. Ana María de Martínez,
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Le Gouvernement d'El Salavador est représenté par :
S. Exc. M. Alfredo Martínez Moreno
comme agent et conseil;
S. Exc. M. Roberto Arturo Castrillo, Ambassadeur,
comme coagent;
S. Exc. M. José Manuel Pacas Castro, ministre des affaires
étrangères,
comme conseil et avocat;
Mme Berta Celina Quinteros, directeur général du Bureau des
frontières,
comme conseil;
assistés de :
M. Eduardo Jiménez de Aréchaga, professeur de droit international
public à l'Université de l'Uruguay, ancien juge et ancien
Président de la Cour internationale de Justice; ancien président
et ancien membre de la Commission du droit international,
M. Keith Highet, professeur adjoint de droit international à la
Fletcher School de droit et diplomatie et membre des barreaux de
New York et du District de Columbia,
M. Elihu Lauterpacht, C.B.E., Q.C., directeur du centre de recherche
en droit international, Université de Cambridge, Fellow de Trinity
College, Cambridge,
M. Prosper Weil, professeur émérite à l'Université de droit,
d'économie et de sciences sociales de Paris,
M. Francisco Roberto Lima, professeur de droit constitutionnel et
administratif; ancien vice-président de la République et ancien
ambassadeur aux Etats-Unis d'Amérique,
M. David Escobar Galindo, professeur de droit, vice-recteur de
l'Université "Dr. José Matías Delgado" (El Salvador),
comme conseils et avocats;
ainsi que :
M. Francisco José Chavarría,
M. Santiago Elías Castro,
Mme Solange Langer,
Mme Ana María de Martínez,
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Mr. Anthony J. Oakley,
Lic. Ana Elizabeth Villata,
as Counsellors.
The Government of Honduras is represented by:
H.E. Mr. R. Valladares Soto, Ambassador of Honduras to the
Netherlands,
as Agent;
H.E. Mr. Pedro Pineda Madrid, Chairman of the Sovereignty and
Frontier Commission,
as Co-Agent;
Mr. Daniel Bardonnet, Professor at the Université de droit,
d'économie et de sciences sociales de Paris,
Mr. Derek W. Bowett, Whewell Professor of International Law,
University of Cambridge,
Mr. René-Jean Dupuy, Professor at the Collège de France,
Mr. Pierre-Marie Dupuy, Professor at the Université de droit,
d'économie et de sciences sociales de Paris,
Mr. Julio González Campos, Professor of International Law,
Universidad Autónoma de Madrid,
Mr. Luis Ignacio Sánchez Rodríguez, Professor of International Law,
Universidad Complutense de Madrid,
Mr. Alejandro Nieto, Professor of Public Law, Universidad
Complutense de Madrid,
Mr. Paul De Visscher, Professor Emeritus at the Université de
Louvain,
as Advocates and Counsel;
H.E. Mr. Max Velásquez, Ambassador of Honduras to the United Kingdom,
Mr. Arnulfo Pineda López, Secretary-General of the Sovereignty and
Frontier Commission,
Mr. Arias de Saavedra y Muguelar, Minister, Embassy of Honduras to
the Netherlands,
Mr. Gerardo Martínez Blanco, Director of Documentation, Sovereignty
and Frontier Commission,
Mrs. Salomé Castellanos, Minister-Counsellor, Embassy of Honduras to
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the Netherlands,
M. Anthony J. Oakley,
Mme Ana Elizabeth Villata,
comme conseillers.
Le Gouvernement du Honduras est représenté par :
S. Exc. M. R. Valladares Soto, ambassadeur du Honduras à La Haye,
comme agent;
S. Exc. M. Pedro Pineda Madrid, président de la Commission de
Souveraineté et des frontières,
comme coagent;
M. Daniel Bardonnet, professeur à l'Université de droit, d'économie
et de sciences sociales de Paris,
M. Derek W. Bowett, professeur de droit international à l'Université
de Cambridge, Chaire Whewell,
M. René-Jean Dupuy, professeur au Collège de France,
M. Pierre-Marie Dupuy, professeur à l'Université de droit,
d'économie et de sciences sociales de Paris,
M. Julio González Campos, professeur de droit international à
l'Université autonome de Madrid,
M. Luis Ignacio Sánchez Rodríguez, professeur de droit international
à l'Université Complutense de Madrid,
M. Alejandro Nieto, professeur de droit public à l'Université
Complutense de Madrid,
M. Paul de Visscher, professeur émérite à l'Université catholique de
Louvain,
comme avocats-conseils;
S. Exc. M. Max Velásquez, ambassadeur du Honduras à Londres,
M. Arnulfo Pineda López, secrétaire général de la Commission de
Souveraineté et de frontières,
M. Arias de Saavedra y Muguelar, ministre de l'ambassade du Honduras
à La Haye,
M. Gerardo Martínez Blanco, directeur de documentation de la
Commission de Souveraineté et de frontières,
Mme Salomé Castellanos, ministre-conseiller de l'ambassade du
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Honduras à La Haye,
Mr. Richard Meese, Legal Advisor, Partner in Frère Cholmeley, Paris,
as Counsel;
Mr. Guillermo Bustillo Lacayo,
Mrs. Olmeda Rivera,
Mr. José Antonio Gutiérrez Navas
Mr. Raul Andino,
Mr. Miguel Tosta Appel
Mr. Mario Felipe Martínez,
Mrs. Lourdes Corrales,
as Members of the Sovereignty and Frontier Commission.
The Government of Nicaragua is represented by:
H. E. Mr. Carlos Argüello Gómez
as Agent and Counsel;
H. E. Mr. Enrique Dreyfus Morales, Minister for Foreign Affairs;
Assisted by
Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public
International Law, University of Oxford; Fellow of All Souls
College, Oxford,
as Counsel and Advocate;
and
Dr. Alejandro Montiel Argüello, Former Minister for Foreign Affairs,
as Counsel.
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M. Richard Meese, conseil juridique, associé du cabinet Frère
Cholmeley, Paris,
comme conseils;
M. Guillermo Bustillo Lacayo,
Mme Olmeda Rivera,
M. José Antonio Gutiérrez Navas
M. Raul Andino,
M. Miguel Tosta Appel,
M. Mario Felipe Martínez,
Mme Lourdes Corrales,
comme membres de la Commission de Souveraineté et des frontières.
Le Gouvernement du Nicaragua est représenté par :
S. Exc. M. Carlos Argüello Gómez
comme agent et conseil;
S. Exc. M. Enrique Dreyfus Morales, ministre des affaires étrangères;
assisté par
Mr. Ian Brownlie, Q.C., F.B.A., professeur de droit international
public à l'Université d'Oxford, titulaire de la chaire Chichele,
Fellow de l'All Souls College, Oxford,
comme conseil et avocat;
et
Dr. Alejandro Montiel Argüello, ancien ministre des affaires
étrangères,
comme conseil.
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The PRESIDENT: Please be seated. The sitting is open.
In accordance with the arrangements as to the order of speaking agreed between the Agents of
the Parties and the intervening State, and approved by the President of the Chamber, it is now for the
representatives of Nicaragua to address the Court. Under Article 85, paragraph 3, of the Rules of
Court, the intervening State is entitled, in the course of the oral proceedings, to submit its
observations with respect to the subject-matter of the intervention. In the present case, that
subject-matter was defined by the Chamber's Judgment of 13 September 1990, by which Nicaragua
was permitted to intervene in the case.
By that Judgment the Chamber found that Nicaragua had shown
"that it has an interest of a legal nature which may be affected by part of the Judgment
of the Chamber on the merits in the present case, namely its decision on the legal régime
of the waters of the Gulf of Fonseca".
On the other hand, the Chamber also found that Nicaragua had not shown such an interest which
might be affected by any decision which the Chamber may be required to make concerning the
delimitation of those waters, or any decision as to the legal situation of the maritime spaces outside
the Gulf, or any decision as to the legal situation of the islands of the Gulf. The authorization given
to Nicaragua to intervene in this case was limited accordingly.
It is thus within that procedural context that I give the floor to the Agent of Nicaragua,
Ambassador Argüello.
Mr. ARGUELLO GOMEZ: Mr. President, Members of the Chamber.
It is a renewed honour and privilege for me to be representing the interests of my country in
this Great Hall of Justice and to be again pleading before this Chamber composed of distinguished
jurists.
It is particularly gratifying for Nicaragua - that does not have the benefit of a judge ad hoc -
to know that among Members of the Chamber are seated the President and Vice-President of the
International Court of Justice and that it is presided by a former Vice-President of that Court.
Our first point in order, relates to:
The constraints placed on Nicaragua's Intervention which we have just heard anew. In the
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first place, the State applying for permission to intervene has had to do so in the absence of any
authoritative indication of the meaning of the Special Agreement. As the Chamber itself observed in
its Judgment:
"the present case raises a further problem, namely that the Parties to the case are in
dispute about the interpretation of the very provision of the Special Agreement -
paragraph 2 of Article 2 - which is invoked in Nicaragua's Application ... This
difficulty is not only one for the Chamber in considering the present Application .. but
also for Nicaragua in framing its Application ..." (I.C.J. Reports 1990, p. 118,
para. 62.)
These difficulties cannot, with respect, be said to have diminished in the light of the September
Judgment.
The scope of the intervention that has been authorized by the Judgment, precludes Nicaragua
from addressing the situation outside the Gulf even though the status of the waters within the Gulf
will determine the situation outside the Gulf. It is only by determining the nature of the Gulf - its
history, its geographical configuration and the legal consequences that can be derived therefrom -
that a decision can be reached on the status of the waters outside the Gulf. This is a preliminary step
to any decision on delimitation. How, then, can Nicaragua avoid drawing the natural consequences
of what it considers to be the legal status of the Gulf and hence of any rights that that status might or
might not generate to itself as a riparian outside the Gulf?
Honduras and the Chamber itself are also of the opinion that the status of the waters outside
the Gulf depends on the status of the waters within the Gulf.
Paragraph 82 of the Judgment recognizes that:
"In the present case, the legal régime within the Gulf - whatever it may be found
by the Chamber to be - will no doubt also be relevant to any decision delimiting the
waters outside the Gulf ..."
Yet the Judgment has segregated legal issues which are essentially interacting in terms of the
written pleadings and which will remain subject to argument until the close of these proceedings.
Although the Observations of Honduras on the Written Statement of Nicaragua - pages 1
and 2 - note "with regret" that Nicaragua - from their point of view - did not keep within the limits of
intervention authorized by the Judgment, it is clear from reading the Honduran position that in spite
of the "regret" with which it receives the Written Statement of Nicaragua the fact is that they
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themselves could not avoid drawing, outside the Gulf, the consequences of their theories inside the
Gulf. This question is illustrated by the final paragraphs of Honduras' Observations upon
Nicaragua's Written Statement.
"In the present case, the existence within the Gulf of the Honduran coast, its
length and its configuration are precisely the relevant circumstances that require to be
taken into account in the law of delimitation. They must equally be taken into account
if the concept of community of interests is applied. For if El Salvador and Honduras
have equal rights, it is not possible to give effect to El Salvador's coast, but ignore that
of Honduras. Similarly, as regards the closing line across the mouth of the Gulf,
whether one applies 'equitable principles' or equality of rights, it is inconceivable that
Honduras should be denied any part of that closing line.
As regards the maritime areas outside the Gulf, similar considerations apply.
Equitable principles require that Honduras, as a coastal State, has an entitlement to
those maritime zones which attach to its coast. The idea of a community of interests
produces an identical result, for there would be no equality of rights if El Salvador had
such an entitlement whilst Honduras had none." (Pp. 19-20.)
Professor Pierre-Marie Dupuy has explained to the Chamber what he has called the juridical,
material and procedural necessity for a delimitation. We are not allowed to discuss matters of
delimitation but it must be pointed out that two of the three reasons he gives - the juridical and
material necessity - are based directly and indirectly on the thesis of community of interests and the
régimes of the waters of the Gulf.
For its part, the position adopted by El Salvador has placed further constraints on Nicaragua's
intervention. It is true that Nicaragua did not go into the details of the proposed delimitation by
Honduras as is noted in paragraphs 83 and 84 of the Judgment. But it must be recalled that
El Salvador has not proposed any delimitation line and - even though it is a Party and has presented
thousands of pages of documents before this Chamber - we have not seen any indication by
El Salvador of how any proposed Honduran delimitation would be received by El Salvador. If we
read those thousands of pages we will only find a general statement that Honduras has no rights
outside the Gulf - only Nicaragua and El Salvador do. This general statement of El Salvador is in
accord with the position of Nicaragua and we thought that it was sufficiently clear. The Chamber
evidently considered that Nicaragua should have gone beyond what El Salvador has done which is
simply to deny that Honduras has any rights at the closing of the mouth of the Gulf. But, if in the
course of these hearings El Salvador, which has not proposed any delimitation line or made any
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specific claims outside the Gulf, should change its legal course and do so, then Nicaragua considers
that it should be granted the right to state its position and comment on these points. This is of
greater importance if it is kept in mind that, from Nicaragua's point of view, the only positions
pertinent to matters outside the Gulf are the positions of El Salvador and of Nicaragua; that is, the
positions of the only riparians at the mouth of the Gulf in the Pacific Ocean. In this respect, it is
well to remember that El Salvador has invariably maintained:
"even if El Salvador were to agree with Honduras that the respective claims of the two
Parties in the Pacific should be delimited by the Court, the Court would not be able to
proceed to such a delimitation without the participation of Nicaragua" (CMES,
p. 256).
On the other hand, this was also the position of Honduras as late as 1978. In the Annexes of
the Honduran Memorial (Annex IV.1.44), we have a document that presents the views of Honduras
on the boundary questions with El Salvador and points out the need for the intervention of Nicaragua
in the maritime aspects of such discussions. We will come back later to this document and the
political context of the Honduran claims.
We next refer to
The Effects of the Special Agreement on the Intervening State
This reference will be made within the limits imposed by the Judgment which explicitly barred
Nicaragua from addressing argument to the Chamber on the interpretation of the Special Agreement
(para. 103).
Professor Paul De Visscher recalls how El Salvador substituted its declaration of acceptance
of the compulsory jurisdiction of the Court with a new declaration that excluded from the jurisdiction
of the Court territorial or maritime matters. And, consequently
"il devenait impossible pour le Honduras de saisir la Cour du problème des limites par
voie de requête unilatérale" (CR 91/1, p. 42).
It should be recalled that Honduras did exactly the same thing. In 1986 it substituted its
declaration of acceptance of the optional clause with a new one containing similar reservations to
those made by El Salvador in 1973. This means, as Professor Paul De Visscher points out, that
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these two Agreements - the Peace Treaty and the Compromis - "constituent maintenant la source
de ... compétence" of the Chamber for the Parties, but it also means that these documents also
constitute the link of Nicaragua with the Parties and, hence, they are of the utmost importance also
for Nicaragua.
Professor de Visscher considers that since the Special Agreement is the only possible
jurisdictional link of the Parties to the Chamber and the Court, then all the more reason that it be
given the most comprehensive interpretation. He recalls:
"Le principe de l'interprétation des compromis en fonction de l'effect utile a été
nettement adopté par la Cour permanente dès 1929 ..." (CR 91/6, p. 44.)
An further on, he adds, that the clear intention of the Treaty was to settle ... "mettre fin
définitivament, complétement, a tous les différends terrestres, insulaires et maritimes ..." (p. 62).
From Nicaragua's point of view, the agreements of Honduras and El Salvador that have
brought them before this Chamber, in so far as they determine the limits of its jurisdiction and
competence, must be restrictively interpreted so as not to permit them to be used in a way that could
affect Nicaragua's legal interests. It is one thing for a treaty to affect the Parties to the fullest extent
the circumstances of a case may demand, but quite another to affect a third party by means of an
extensive interpretation. The principle that a treat is res inter alios acta with respect to non-parties
would not be absolute if treaties could be interpreted by courts without considering the rights of third
parties.
Now I pass to what we understand to be
The Real Maritime Issue Before the Chamber
Professor Pierre-Marie Dupuy told us that for Honduras "l'objet fondamental de la présente
affaire" is "la délimitation des espaces maritimes" (CR 91/39, p. 10). Professor De Visscher, for his
part, has stated that if the Chamber limits its Judgment to making a determination of the status of the
waters and decides to send the Parties back to the negotiating table to settle the rest of the issues, no
purpose would be served because it would leave El Salvador "en position de beatus possidens"
(CR 91/6, p. 20). This is in many senses true. The beatus possidens are El Salvador and Nicaragua
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precisely because they are the coastal States abutting upon the mouth and lengthy entrance channel
of the Gulf of Fonseca. This situation of adjacent sovereignties of the two riparians of the mouth of
the Gulf - obvious to the whole world - is precisely what Honduras wants to destroy in the absence
of Nicaragua.
From another point of view, these statements have the purpose of playing down the real goal
of Honduras. Honduras makes as if to belittle this result calling it "une telle demi-mesure" that
would only give Honduras "une simple fiche de consolation" (CR 91/6, p. 16). But this
"demi-mesure" is precisely what Honduras wants because it would break the possession, the
sovereign rights of the beatus possidens of the mouth of the Gulf and of its long channel of entry.
Professor Weil, counsel for El Salvador, explains the importance of any determination made
by the Chamber.
"L'intérêt présenté par la décision que la Chambre prendra sur ce problème sera
d'autant plus grand que c'est précisément ce double problème de régime juridique et de
titre, et non pas la tracé d'une ligne de délimitation, qui divise au premier chef les deux
pays."
But, notwithstanding this appreciation by Salvadorian counsel of the real maritime issue
before the Chamber, El Salvador's position is that the Chamber can determine the status of the
waters, or clearer yet, what status the waters of the Gulf give to the riparians, without Nicaragua
being a Party. This concedes rights to Honduras and El Salvador to the prejudice of Nicaragua.
Quite the contrary of what Professor De Vissher says that it would be a poor consolation prize for
the Chamber to create rights for Honduras outside the Gulf but not to delimit them, it is quite clear
that this would be the most important thing that Honduras could get out of the maritime aspects of
this case.
Professor Weil has called the issue of the Honduran maritime projection outside the closing
line of the Gulf, "la pomme de discorde essentielle entre les deux pays". I would recall, though, that
the apple was disputed among three contenders and not between two; so should it be in the Gulf.
The fate of Troy would have been worse if one of the contenders for the apple had not even been
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allowed to participate in the contest.
Now I will refer to what we term
The "Inherent Right" of Honduras to a portion of the Closing Line
1. In the first place, Honduras claims rights to maritime spaces based "sur le principe du droit
des Etats riverains de la mer à jouir de plano de toutes les prérogatives naturelles des espaces
maritimes." (CR 91/6, p. 15.) Professor De Visscher goes on to say:
"En définitive le Honduras soutient qu'il possède hic et nunc par l'effet du droit
international général, codifié en 1982, un titre sur les espaces maritimes, et que ce titre
ne peut pas être mis en doute par la Partie adverse." (Cr 91/6, p. 17.)
It is not my intention to address this argument au fond, since prudence counsels me that only
Professor Brownlie should lock horns with so formidable a counterpart in all matters related with the
Law of the Sea. What I think I can remark on, from a more general point of view, is that this
argument really appears to beg the question.
The whole question is precisely whether Honduras is to be considered a riparian at the mouth of the
Gulf. Certainly, if it was a straightforward matter that Honduras is a riparian in that sense - which
both Nicaragua and El Salvador do not accept - then yes, Honduras could enjoy de plano what
Nicaragua and El Salvador enjoy outside the Gulf. Therefore, this argument is one way of focusing
the question: according to international law, do the characteristics of the Gulf of Fonseca give rights
to Honduras at the mouth of the Gulf? This is precisely what this intervention is really about. This
is precisely "la pomme de discorde".
2. His Excellency, the Agent of Honduras has advanced some thoughts along the lines that if
the Chamber decides that Honduras "does not have the right to go up to the closing line of the Gulf"
then it would be "place in a position equivalent to a 'land locked' State" (CR 91/1, p. 35). These
thoughts are also expressed by Professor De Visscher in recalling that during the conferences that led
up to the adoption of the Law of the Sea "le Honduras y a siégé parmi les Etats côtiers et non pas
parmi les Etats enclavés ou géographiquement défavorisés" (CR 91/1, p. 56).
The thrust of this argument is that the law has to be interpreted in some way that would not
cause what is being portrayed as an inherent unfairness to Honduras: not to have the right to exploit
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the natural resources of maritime spaces as if Honduras were a riparian at the mouth of the Gulf.
But, in reality, the only situation that could be portrayed as unfair would be if Nicaragua questioned
Honduras's right of passage in and out of the Gulf. It is needless to recall that this is not the case.
Honduras has rights of passage in and out of the Gulf based on local custom.
On the other hand, to use a phrase from the Fisheries case, there are no "ancient and peaceful
usages" (I.C.J. Reports 1951, p. 116, para. 142) to attest to rights of the Honduran population to
obtain their vital needs outside the Gulf.
3. Honduras has presented a special version of this claim of an "inherent right" to a portion of
the closing line of the Gulf under the peculiar heading of community of interests. Although this
topic is not one that involves technical concepts of the Law of the Sea, I have asked
Professor Brownlie to address it, because it is the only basis that Honduras claims for entitlement at
the closing line of the Gulf. Furthermore, since in the few years I have studied public international
law, I have never come across the notion of a "community of interests" (with quotation marks) that,
per se, generated territorial rights, I find it very difficult to say anything about it. The idea of a
community of interests (without quotation marks) is a general expression that might be used to
describe such diverse ideas as, for example, the international community's interest in the environment
or the community of interest of the Members of the Chamber in the pursuit of justice. But, to jump
from generalities that might have a place in the concepts of "good neighbourliness" to that of
"community of interests" (with quotation marks) that, in a sort of collectivist development of
international law, would apportion territory among neighbours, is something beyond my ken.
The Observations of Honduras to the Written Statement of Nicaragua (p. 12) refers to a
statement made by the Permanent Representative of Nicaragua to the United Nations,
Ambassador Mayorga. The French-speaking counsel for Honduras have quoted from the provisional
text of the French translation of his statement.
Professor De Visscher makes use of this statement in at least two occasions. One of these
references is the following"
"Le 11 décembre dernier le représentant du Nicaragua auprès des Nations Unies,
M. Mayorga Cortes, reprenant les termes utilisés par le Honduras, a déclaré que les
eaux du golfe faisaient l'objet d'une 'communauté d'intérêts' entre les trois riverains."
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(C 4/CR 91/1, p. 57.)
Professor Pierre-Marie Dupuy made an extensive reference to this in his pleadings.
The hammering at this subject forces me to take the precious time of the Chamber off the
subject of international law and into the realm of semantics.
1. The official text of the statement of Ambassador Mayorga is in Spanish. This Spanish text
does not use the expression "comunidad de intereses" which is easily understandable - without need
of great imagination - in English or French. The French translation, on the other hand, is the one
that uses the expression "communauté d'intérêts" but, since Honduras is also a Spanish-speaking
country and since the "discovery" of this text is undoubtedly due to its representatives in the
Honduran Mission to the United Nations who undoubtedly heard it in Spanish, the real surprise is
that Honduras did not use more prudence in advising its francophone counsel on what the text said in
Spanish.
2. The French text of Ambassador Mayorga's statement, as quoted by Professor Dupuy
(C 4/CR 91/38, p. 68) says:
"A notre avis, les trois Etats riverains partagent une communauté d'intérêts dans
le rétablissement de l'équilibre de la nature et la planification d'un développement
continue des ressources du golfe."
This is quite true. We have common interests as riparians in the Gulf. We also have common
interests in the contamination of the waters of the Pacific; we have common interests in the future of
Central America; we have a common interest in many things.
The simple explanation is that Honduras is playing with words. It is trying to create new
institutions of international law by putting quotation marks around ordinary expressions. The whole
idea of a "community of interests" (with quotation marks) involves a fishing expedition in the waters
of the Gulf.
What this whimsy emphasizes is the absolute vagueness of this concept of community of
interests. Perhaps the only thing that might come of this absurd incident is that United Nations
translators will, in the future, transfer the innocuous expression "community of interests" to the
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section where they file politically-sensitive words.
Locality and geographical circumstances of the Gulf
In the rest of my pleadings, I will have occasion to point to the map of the Gulf of Fonseca
behind me. So, at this point it would be convenient to say something about the locality and the
geographical circumstances of this Gulf.
In 1917 the Central American Court of Justice adopted the description of the locality and
geographical conditions of the Gulf, according to a report of the surveyors Barberena and Alcaine.
It is a simple and useful contemporaneous description which I will read in order to evoke an image of
what was then, and is again now, under discussion. The Central American Court quotes the
description as follows:
"Paralleling the coast, we have traced on the Salvadorian and Nicaraguan parts
that form the gullets or entrance to the Gulf, the two lines (distant 12 miles from the
coast) that mark the respective limits of the zone of maritime inspection according to
the generally accepted prescriptions in that connection, and it is thus clearly to be seen
that those lines intercept or overlap, thus closing the Gulf, which is thereby reduced to
an interior bay of purely Central American jurisdiction."
The description continues:
"We have arrived at the same conclusion by merely considering that the entrance
of the Gulf is 35 kilometres, approximately, from Amapala Point, in El Salvador, to
Cosiguina Point, in Nicaragua; and that, by measuring 4 marine leagues, or
22,220 metres, from each of those points, the lines traced necessarily meet and dovetail;
otherwise the entrance would have to be at least 44,440 metres, or nearly 10 kilometres
wider than it is.
If the shortest distance between Meanguerita island - an integral part of the
Salvadorian coast - and the Peninsula of Cosiguina be taken as the points of entrance to
the Gulf, the width would be 15 kilometres, which is barely equal to 8 miles, and, if the
islets known as Farallones be taken as the limit of the Nicaraguan coast on that side, the
entrance would be reduced to 7 kilometres, 950 metres, or some 4 miles and a little
more than a quarter." (AJIL 1917, p. 702.)
This is the Gulf we are talking about, as seen by the surveyors in 1917 and as seen by the
Central American Court in 1917.
With this description of the Gulf clearly in the mind, let us look at the claims the Parties are
making.
The first subject I will approach is the evolution of the Honduran claims in the Gulf.
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The Honduran claims in the Gulf of Fonseca are of recent origin
The recent manufacture of the Honduran claims can be appreciated from a perusal of the
documentation it has introduced in the course of the extensive written pleadings and from what has
been stated by its representatives in these oral hearings.
1. The nature and extent of Honduran claims in the Gulf of Fonseca
at the beginning of this century
First of all the claims against Nicaragua
The important element in this context to be considered is the work of the Mixed Boundary
Commission that was constituted on the basis of the Gámez-Bonilla Treaty concluded in 1894 by
Nicaragua and Honduras. The maritime part of the boundary between Nicaragua and Honduras was
recorded in Acta II, agreed on June 1900. The pertinent text of this agreement was translated in
paragraph 26 of the Judgment of 13 September 1990 and, after describing the direction, it arrives:
"To arrive at the centre of the distance between the northern part of Punta
Cosiguina and the southern part of Isla El Tigre. The border at that point was fixed at
the mid-point between Punta Cosiguina, the northern part of Punta Cosiguina known as
Money-Peny, also Punta San José, and the southernmost part of Isla El Tigre."
For its part, Article 9 of the Constitution of the Republic of Honduras of 11 January 1982
defines the territory of Honduras stating that:
"Its boundaries are: ... 2. With the Republic of Nicaragua, those established by
the Mixed Honduran-Nicaraguan Boundary Commission in 1900 and 1901, according
to the description of the first section of the dividing line, contained in the second act of
June 12, 1900, and in later acts, to Portillo de Teotecacinte and from that place to the
Atlantic Ocean in accordance with the Arbitral Award handed down by His Majesty the
King of Spain, Alfonso XIII, on December 23, 1906, and declared valid by the
International Court of Justice on November 18, 1960." (Annex II.1.18 of the
Memorial.)
In connection with this boundary line with Nicaragua, Honduras has made some asseverations
in these proceedings, to which I will return later. At this point we are only looking at the Honduran
claims at the turn of the century. This was the situation with Nicaragua in 1900.
Claims against El Salvador
The claims against El Salvador are very interesting. Annex III of the Honduran Memorial
- 21 -
contains a few transcriptions of reports of surveyors describing the proposed boundaries with
El Salvador. There are several of them, but they all coincide on one thing: the starting point of the
Honduran waters inside the Gulf. Let us review two examples:
Annex III.2.10.A, a report of the engineer Vicente Aracil y Crespo to the President of the
Republic of Honduras, on the International Boundary Agreement between that Republic and the
Republic of El Salvador, in Tegucigalpa, 21 December 1888.
"it was decided that we should begin our operations in the following manner:
Leaving the Gulf of Fonseca at 13° 12' N latitude and 87° 36' W longitude ... we
arrived at the centre of the mouth of the River Goascorán".
You will note carefully, after reading this, that at this point it is very difficult to show the
exact place on the map, but you will see that the start of this line is precisely at a point very near the
line that was established with Nicaragua in 1900. It starts around here.
Annex III.2.16. There is also another report, of the two I am quoting, the descriptive report of
the dividing line between the Republics of Honduras and El Salvador, from the Gulf of Fonseca as
far as the Montaña del Brujo, by a surveyor, A.W. Cole, in 1890. He also starts at exactly the same
place:
"at latitude 13° 12' N and longitude 87° 36' 0" (of the Greenwich mean) continuing ...
as far as the centre of the mouth of the River Goascorán."
All the descriptions given by Honduras in the Annexes presented to its Memorial of their
situation, their boundary situation, maritime situation, start at some point very near what eventually
became the end-line with Nicaragua. Around this point.
The understanding, at the turn of the century, was that the boundary of Honduras with
El Salvador in the Gulf of Fonseca reached to somewhere near the end-point of the line drawn with
Nicaragua in 1900.
This understanding is confirmed in a Note sent by Nicaragua in 1917 to its Central American
neighbours. The Note (Annex 5 of the Nicaraguan Written Statement) describes the
Honduras/El Salvador question in the following terms:
"the project of a boundary line between these countries (i.e. El Salvador/Honduras) is
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set forth in Article 2 of the Boundary Treaties of April 10, 1984, which reads: 'the
maritime line between El Salvador and Honduras starts at the Pacific, dividing by half,
in the Gulf of Fonseca, the distance existing between the islands of Meanguera,
Conchaguita, Martin Perez and Punta Zacate, of El Salvador, and the islands of
El Tigre, Zacate Grande, Inglesa and Exposición, of Honduras, and it ends at the mouth
of the Goascorán.'" [In other words, it is pointing to a region somewhere around here.]
"There is no doubt" - continues the Note of Nicaragua in 1917 - "that this line, which
was not approved by the Congress of Honduras, will be the one which sooner or later,
with a change of details, will have to constitute in the Gulf the territorial line between
El Salvador and Honduras."
This quotation, as I have said, is from a Circular Note sent by Nicaragua to its Central
American neighbours protesting, in 1917, the decision of the Central American Court. This
understanding of Nicaragua was not contradicted by the recipients of the Note, including Honduras.
(b) The nature and extent of Honduran claims in the period
leading up to the war in 1969 and the negotiations that ensued
Now, we jump several decades to see what the situation of the Honduran claims was in the
period leading up to the war in 1969 and the negotiations that ensued.
A perusal of the Annexes to the Honduran Memorial reveals information that illuminates the
situation before the armed conflict with El Salvador in 1969 and afterwards. The negotiations that
took place during that period shed important light on what the Parties understood to be their
respective rights at that time. This information demonstrates that the Gulf was not the origin or even
part of the territorial conflict with El Salvador and that the claims of Honduran rights at the closure
of the Gulf are of very recent origin. They are not from the 1940s or 1950s, when the Latin
American nations started claiming larger territorial seas, exclusive economic zones and continental
(or epi-continental) shelves, nor yet from the 1960s when this topic continued to be heatedly debated
by the nations of the world, but only in the 1970s, and then only as a negotiating leverage with
El Salvador, since no official claim based on legal right was made orbi et mundi at the time.
Annex III.2.54 of the Honduran Memorial: "Joint plan for the withdrawal of the regular
troops and security forces of the Republics of El Salvador and Honduras, 14 June 1967", which was
presented by Honduras.
If we read that document, no mention is made there of conflicts or security forces inside or,
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much less, outside the Gulf.
In Annex III.2.56 of the same Memorial: "Report on the Reconnaisance Carried out along the
El Salvador/Honduras Frontier by the Joint Military Commission of the Two Countries"
(19 July 1967).
Again there is no report of reconnaissance in the Gulf of Fonseca or the waters outside the
Gulf.
In Annex III.2.58.B: "Draft of Bases and Procedures for the Negotiation and Signing of a
Treaty for the Purpose of Settling Boundary Questions Between Honduras and El Salvador,
submitted by the Government of Honduras". Tegucigalpa, 29 November 1967.
The first paragraph of this Draft prepared by Honduras states:
"1. The Governments of Honduras and El Salvador have decided to settle
amicably all the boundary questions pending between the two States with a view to
establishing their boundary line in a definitive manner."
I invite the Chamber to peruse this draft in search of any mention of maritime delimitation or
special interests in the Gulf of Fonseca. I have found absolutely none.
Annex IV.1.4.B of the Honduran Memorial: "Note dated 12 July 1969 from the Minister for
Foreign Relations of Honduras to the Minister for Foreign Relations of Guatemala, Nicaragua and
Costa Rica ..."
This Note of the Honduran Government draws the attention of the Commission of Mediation
to the boundary problem with El Salvador.
The Note was accompanied by a point by point Reply of Honduras "to the list of proposals
submitted by their Excellencies the Mediating Ministers" which can be seen in Annex IV.1.4.C of the
Memorial. This Note sent to its Central American colleagues, contained an additional proposal by
Honduras to settle the frontier problem and referred to its Draft Bases of a Treaty which it had
proposed to El Salvador on 29 November 1967 which we have mentioned above. We may recall that
this Draft had no mention of the Gulf of Fonseca, either the waters inside or outside the closing line
of the Gulf. Therefore, up to July 1969 Honduras had no boundary claims relating to or
emanating from the Gulf of Fonseca.
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In Annex IV.1.20.B of the Honduran Memorial we see an extract of a meeting in which
Honduras, on 18 May 1971, requested that El Salvador should answer the Draft proposal made by
Honduras in November 1967 which we have mentioned above. We must recall again that this 1967
proposal makes no mention of the Gulf of Fonseca. This Statement was accompanied by a
submission of a Draft Guideline on bases and procedures of the Government of Honduras aiming at
establishing definitely the frontier line between Honduras and El Salvador. This Draft corresponds
to Annex IV.1.20.C and does not have any mention of the Gulf of Fonseca.
During the following years several meetings were held by the Parties in conflict under the
Aegis of the Mediator of the Bilateral Working Group. It is during one of these meetings on
29 November 1973 that the Honduran delegation in the negotiations that had taken place in Mexico
City proposed a frontier line between both Republics (Ann. IV.1.25.B). The maritime frontier would
have ended, as between Honduras and El Salvador, on the closing line of the Gulf at
"longitude 87° 50'00" W and latitude 13° 4'00" N, corresponding to a third of the
distance between Punta de Amapala in El Salvador and Punta de Cosiguina in
Nicaragua, starting from Punta de Amapala".
This is the first attempt to bring into issue in the negotiations a Honduran presence at the
closing line of the mouth of the Gulf. Furthermore, and this point is very important, it was made in
the bilateral context of ongoing negotiations of peace and should be judged in that light.
In passing, we might point out that the claims of Honduras, based on these negotiations and
not on legal rights, have grown even larger at present. In 1973 they wanted a third of the mouth of
the Gulf, now they want more than half.
In Annex IV.1.35 of the Memorial of Honduras we find the: "Draft Treaty of Fraternity and
Concord submitted by the Salvadorian delegation to the Honduran delegation on
13 and 14 May 1976.
Article 4 of this Draft affirms:
"Boundary Questions
The Contracting Parties undertake to sign a protocol laying down a method of
arriving at a definitive settlement regarding the complete delimitation of the frontier
between the two countries and its subsequent demarcation, as well as the status of the
Gulf of Fonseca, regard being had also to the special border régime and co-operation in
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the border zone."
It is the first time we see in the documents presented by the interested Party, Honduras, that
the other Party, El Salvador, mentions the Gulf - May 1976.
In Annex IV.1.44 we find a document presented by Honduras in the context of the Mediation
procedure. Its title: "Statement of the views of Honduras on 'Boundary Questions'" and it is from
1978. I will quote this document because it is very interesting in identifying what the position of the
Parties was in 1978:
"II. Extent of the differences, traditionally accepted frontier line and areas in
dispute between the two States
46. Resolution IV, among those approved by the Meeting of Consultation on
27 October 1969, refers generically to 'boundary questions'. It consequently covers the
various boundaries in the land areas between the mouth of the River Goascorán and the
Cerro Montecristo, and also the maritime areas and the islands situated in the Gulf of
Fonseca.
In the course of the negotiations between the two Republics from 1861 to the
present day, the attention of the two countries has been concentrated almost exclusively
on the land boundaries. Nevertheless, there are disagreements between the two
Republics deriving primarily from the claims put forward by El Salvador in 1972 with
regard to the mouth of the River Goascorán; should they constitute the boundary of
that area, the delimitation of the waters in the Gulf of Fonseca would thereby be
affected. Secondly, as the two Republics disagree about sovereignty with respect to
certain islands situated in the aforementioned Gulf of Fonseca, there would also be
repercussions on the delimitation of the maritime area over which either country can
claim sovereignty. Lastly, the two countries differ in their views with regard to the
waters of the Gulf of Fonseca, where the Republic of Nicaragua is also a riparian State.
An overall settlement of the boundary questions outstanding must consequently
include both the questions relating to the land boundaries and those concerning the
maritime boundaries. At the present stage of the mediation, however, the questions
relating to the land boundaries will be considered, since this part of the problem forms a
unit. It must, moreover, be added that any settlement with regard to maritime
boundaries on which the two Republics might reach an agreement must necessarily be
affected to some extent by what has just been said, since a third State also borders on
the Gulf of Fonseca.
In the opinion of the Government of Honduras, a final solution in this area, by
means of an international treaty, necessarily involves two distinct stages, the first being
concerned with the settlement of the differences existing between the Republics of
Honduras and El Salvador, and the second with arranging for the best possible use of
the waters and their resources by all the riparian States, which would necessitate the
subsequent intervention of the Republic of Nicaragua."
The statement just quoted was submitted by Honduras in 1978, when it had brought into the
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negotiation table the subject of the Gulf of Fonseca. It is interesting to note its coincidence with the
views held by Nicaragua and which have been presented in the course of this case.
First of all, the only reference to maritime affairs is "with regard to the waters of the Gulf of
Fonseca, where - as Honduras rightfully recognizes - the Republic of Nicaragua is also a riparian".
There is absolutely no reference to any other outstanding maritime situation between the two nations.
It would be quite surprising if Honduras - as late as 1978 - had believed the situation in the Gulf
gave it rights outside the Gulf, to have omitted any reference to this important consideration.
The second aspect that this statement refers to, is the two stages it envisages as the only
logical way of going about any settlement of disputes in the area: the second stage, which would
involve the waters of the Gulf, Honduras affirms, could not be discussed in the absence of
Nicaragua. Perhaps the difference was that in 1978 Nicaragua was not in the same international
situation as in 1986 when the compromis was signed: in troubled waters abound fishermen (en
aguas revueltas ganancia de pescadores).
The proceedings in The Central American Court of Justice provide a special insight into
what was deemed to be the Status of the Gulf of Fonseca in 1917.
As you will see I have passed from the claims of Honduras 100 years ago to the claims of
Honduras 12 years ago and now in a different mode I am going to analyse what the Central
American Court of Justice believed to be the situation in 1917 and also what the Parties believed to
be the situation in that important period.
One initial caveat in dealing with this subject is that in any interpretation of the Judgment of
the Central American Court of 1917, careful notice should be taken that in the operative part it states
that the Treaty in question before the Court "menaces the national security of El Salvador and
violates her rights of co-ownership in the said Gulf, in the manner and within the limitations, set
forth in the Act Recording the Vote of the Court and in Chapter II of the Second Part of this
Opinion" (AJIL 1917, p. 730).
Hence, the rights of so called "co-ownership" have to be interpreted in the light of the decision
as a whole and, we can certainly add, in the light of the legal concepts based on civil law that were
- 27 -
used by the judges.
Another caveat - I am going back to this decision - was pointed out by His Excellency
Dr. José Manuel Pacas Castro, Minister for Foreign Relations of El Salvador. He indicated that:
"At the outset it must be recognized that even in its original Spanish text, the
language and effect of the Judgment are sometimes obscure." (CR 91/39, p. 50.)
In effect, the Judgment suffered from the birth defects of the Central American Court itself.
Judge Hudson's appreciation of the Court was that it was doomed to failure from the outset:
"the justices were given no independent position and ... Contemporary opinion in
Central America seems to have regarded the Court not simply as a judicial institution,
but also as a political agency ..." (M. Hudson, The Permanent Court of International
Justice, N.Y., 1943, pp. 69-70.)
The position of Nicaragua was then and is now, that the Judgment of the Court was
erroneous. For this reason, the Judgment was never implemented. Apart from the Government of
El Salvador, Nicaragua never received any correspondence from the other States party to the Statute
of the Court that in any way indicated that the decision was considered to be valid and enforceable
and, hence, that Nicaragua should comply with it.
Since I want to make certain relation not only of the validity of the decision itself, but the
value it has in presenting the opinion of the Court as to the status of the Gulf in 1917 and, as a
matter of fact, the position of the Parties in this period. So in going into this, the first point I will go
into is, how the Central American Court, Nicaragua, El Salvador and Honduras saw the Gulf of
Fonseca in 1917
The Juridical Status of the Gulf
Historic Bay
The Central American Court of Justice coincided with the Parties in calling the Gulf of
Fonseca an historic bay. We read in the questionnaire posed to the Court by its President:
Ninth Question. - Taking into consideration the geographic and historic
conditions, as well as the situation, extent and configuration of the Gulf of Fonseca,
what is the international legal status of that Gulf?
The judges answered unanimously that it is an historic bay possessed of the
characteristics of a closed sea.
Tenth Question. - As to which of those characteristics are the high Parties litigant
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in accord?
The judges answered unanimously that the Parties are agreed that the Gulf is a
closed sea." (AJIL 1917, p. 693.)
But what was meant by this?
The Judgment of the Court in the Fisheries case defined "historic waters" in the following
terms:
"By 'historic waters' are usually meant waters which are treated as internal
waters but which would not have that character were it not for the existence of an
historic title." I.C.J. Reports 1951, p. 130.)
In declaring that the Gulf of Fonseca was an historic bay, did the Central American Court
understand the concept in the way it was defined in this passage?
The question is important, not for any declaratory effect of the Judgment which Nicaragua
denies, but because it illustrates at a relevant moment what was understood to be the regime of the
Gulf. In the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) the Court
said that:
"Historic titles must enjoy respect and be preserved as they have been by long
usage ...
It seems clear that the matter continues to be governed by general international
law which does not provide for a single 'régime' for 'historic waters' or 'historic bays',
but only for a particular régime for each of the concrete, recognized cases of 'historic
waters' or 'historic bays'." I.C.J. Reports 1982, pp. 73-74, para. 100.)
What then is the particular régime of the historic Bay of Fonseca? The answer to the question
can be found in the Judgment of that Court.
1. The Court stated that in the Gulf "the merchant vessels of all nations possess(ing), as they
do, the right of uso inocente over those waters" (AJIL 1917, p. 715). So it is characteristic.
2. The Court considered that the Gulf "combines all the characteristics or conditions ...
essential to territorial waters ..." (AJIL 1917, p. 705). Second condition.
3. The riparian States are declared to have individual sovereignty over the three marine miles
of territorial waters commonly accepted in that period. The Court said:
"the three marine miles that form the littoral on the coasts of the mainland and islands
- 29 -
which belong to the States separately and over which they exercise ownership and
possession both exclusive and absolute" (ibid).
4. The fourth characteristic as seen by the Court is that part of the waters of the Gulf are
considered to be common to the riparian States but this community does not extend to that part that
was delimited between Nicaragua and Honduras in 1900 which is accepted as valid by the Court in
the following terms:
"although there was a division made with Honduras in 1900 ... the line drawn ... only
extends as far as a point midway between Tigre Island and Cosiguina Point ...
Consequently, it must be concluded that with the exception of that part, the rest of the
waters of the Gulf have remained undivided in a state of community between
El Salvador and Nicaragua." (AJIL 1917, p. 711).
Finally, the Court considered that the exercise of jurisdiction in undivided areas tied to the
vital interests of the riparians imposed a condominium:
"It is therefore evident that the exercise of jurisdiction in the unpartitioned waters
is based on the legal nature of the Gulf, which makes them common, and in the
all-important necessity to protect and defend the vital interests of commerce and
industry, these being indispensable to national development and prosperity." (AJIL
1917, p. 711.).
What principles governed this condominium
The Court recognized the rarity of the concept of community in the relations among States,
but considered that "the universal principles that govern community in things are perfectly applicable
to the Gulf of Fonseca".
The Court considered that these same principles were found in municipal law:
"Also from the point of view of various civil laws, among them those of Central
America, and especially those of Nicaragua, in the light whereof the question of
community in the Gulf may be contemplated." (AJIL 1917, p. 713.)
The Court finally concluded its consideration of this question with an analysis of the
Nicaraguan Civil Code on the question of co-ownership. This application of civil law concepts to
the Gulf of Fonseca gives a clear picture of what the Court had in mind when it considered the
existence of a condominium.
The Court quoted several Articles of the Nicaraguan Civil Code which was promulgated in
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1904 and which is still in force. I will add another to those Articles quoted by the Court:
"Article 1703. No one can be forced to remain in community and each
co-parcener may request the end of the community."
This Article was based on a similar disposition of the contemporaneous Civil Code of Italy
(Article 681) and represents a general quality of the institution of community in civil law terms, its
transience. The second section of this same Article - also taken from the Italian Civil Code - limits
the possibility of extending the life of a community by agreement to five years only. There were
public policy considerations behind these limitations upon hindrances to the disposal of property that
were familiar to the Members of the Central American Court such as the prohibition of morte
maines. It seems evident that the Court was thinking in civil law terms. If this be so, they had no
intention of creating a permanent institution for the Gulf. It had in mind a temporary solution to the
security interests it saw endangered by the Chamorro-Bryan Pact.
It could be questioned that in the case of sovereign nations, once a condominium was declared,
it could not be dissolved at the request of one and not of all the condominia. But one consideration
that must have been in the minds of the Members of the Court was that all the Central American
countries had accepted the compulsory jurisdiction of the Court - in the special way the Court
envisioned this compulsory jurisdiction - and hence could, as any private person in a civil law court,
request the end of this community they had declared to exist. Therefore, a particular characteristic
of this condominium was that any condominia could request it be ended by means of a delimitation.
What waters were considered to be under condominium?
The Court distinguished three kinds of waters: territorial waters of 1 league, zones of
inspection up to 3 more leagues and non-littoral waters outside those limits. Let us read question 14
and its answer carefully:
"Fourteenth Question. Does the right of co-ownership exist between the
Republics of El Salvador and Nicaragua in the non-littoral waters of the Gulf, and in
those waters also, that are intermingled because of the existence of the respective zones
of inspection, in which those Republics exercise police power and the rights of national
security and defence?
Judges Medal, Oreamuno, Castro Ramirez and Bocanegra answered that such
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right of co-ownership does exist, without prejudice, however, to the rights that belong to
Honduras in those non-littoral waters; Judge Gutiérrez Navas answered in the
negative." (AJIL 1917, p. 694.)
The Members of the Court were careful to avoid prejudicing the rights of Honduras only in
the non-littoral waters, that is, the waters that went beyond the extension of the zones of inspection
and police where each Party - Nicaragua and El Salvador - held imperium. Why was this? Because
Honduras could only have rights to a condominium outside the littoral or jurisdictional waters of the
Gulf. And where is this only possible? Only inside the Gulf and not in the entrance channel where
"the waters of the Gulf have remained undivided and in a state of community between
El Salvador and Nicaragua, and that, by reason of the particular configuration of the
Gulf, those waters though remaining face to face, were, as declared in the report of the
engineers Barberena and Alcaine and as recognized by the High Party defendant,
confounded by overlapping" (AJIL 1917, p. 711).
This was what Nicaragua understood the Judgment to mean. In Annex 5 of the Nicaraguan
written statement is a Circular Note sent by Nicaragua to the other Central American Governments
dated 24 November 1917. It is reproduced and translated into English in Papers relating to the
foreign relations of the United States (Washington, 1926, pp. 1104-1111). In this Note, Nicaragua
points out that if the condominium is only in the non-littoral waters then what the Court has declared
to be subject to a condominium is only an insignificant portion of the Gulf. This is Nicaragua
writing in 1917 - it is not our interpretation at this moment, it is the position of Nicaragua in 1917.
The observations of this Note of Nicaragua on this point are:
"From this declaration of the honourable Tribunal, admitting for a moment the
classification, it is deduced that the waters in which, in its judgment, the alleged joint
dominion and community of possession exist, are situated beyond the 2 leagues of the
inspection zone ...
On the other hand, eliminating the territorial part of the Gulf which belongs to
Nicaragua by virtue of the division made in 1900 with Honduras and taking into
account the project of a boundary line contemplated for some time between El Salvador
and Honduras. The reserve of waters to which the Court refers disappears."
Why did Nicaragua state that in those circumstances the reserve of waters would disappear?
Did the delimitation of Honduras and El Salvador go up to the closing line of the Gulf? No. The
letter continues, with a passage I have read in another context, saying:
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"As a matter of fact, the project of a boundary line between these countries is set
forth in Article 2 of the Boundary Treaties of 10 April 1884, which reads: 'the
maritime line between El Salvador and Honduras starts at the Pacific, dividing by half,
in the Gulf of Fonseca, the distance existing between the islands of Meanguera,
Conchaguita, Martin Perez and Punta Zacate, of El Salvador, and the islands of
El Tigre, Zacate Grande, Inglesa and Exposición, of Honduras, and it ends at the mouth
of the Goascorán'."
As we have pointed out, and I interrupt the quotation for a moment again, this description is starting
around this section of the Gulf; in no case outside the Gulf. This was the starting line, very near the
closing line between Nicaragua and Honduras, established in 1900, the line projected with
El Salvador ended right around the same line. The Nicaraguan Note continues, saying:
"There is no doubt that this line, which was not approved by the Congress of
Honduras, will be the one which sooner or later, with a change of details, will have to
constitute in the Gulf the territorial line between El Salvador and Honduras.
"And when this is established, and taking into account the one already drawn in
the same waters between Nicaragua and Honduras, where will the reserve of waters be
situated which was mentioned in the award of the honourable Tribunal?"
In other words, what Nicaragua was asking, if the line between Nicaragua and Honduras has
been fixed and a line is thrown to the Goascorán from the same point, what waters are there to be
divided? What waters could be considered a condominium as between Honduras, El Salvador and
Nicaragua? This is what Nicaragua was asking in 1917.
The Note does not say that Honduras does not have rights outside the Gulf. It simply takes it
for granted that that was the case. It is clear that Nicaragua did not understand that the Judgment
gave rights of condominium to Honduras in the entrance Channel to the Gulf because, if that had
been the case, a considerable portion of the waters would have been in condominium. This Note
represents a contemporaneous understanding of the Judgment and was not challenged by any of the
recipients, including Honduras and El Salvador. It is evident that no-one thought that the
condominium - to which Honduras could have been a party - extended to the entrance of the Gulf.
The Nicaraguan Treaty with the United States - known in Nicaragua as the Chamorro-Bryan
Treaty - which gave rise to this Judgment, was a Treaty that was opposed by all of Nicaragua's
neighbours. It gave rise to a case brought against Nicaragua by Costa Rica in the south and the case
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brought by El Salvador in the north. Honduras was also against the Chamorro-Bryan Treaty and, as
a co-riparian could have joined up with El Salvador in bringing the case against Nicaragua. Why
did this not happen? Becuase Honduras knew it had no business in the entrance Channel and that
inside the Gulf it already had a delimitation with Nicaragua. The Honduran interest only arose when
El Salvador sought to obtain a material advantage inside the Gulf proper; that is, past the line of
Points Monney Penny and El Chiquirin and into the Gulf. From Punta El Chiquirin to its frontier
with Honduras at the Goascorán, the portion of El Salvador embracing the Gulf if extremely small
compared to that of the other two riparians. In presenting a condominium inside of the Gulf,
El Salvador was gaining parity of rights inside the Gulf proper to the detriment of its neighbours.
That is why this point was hotly disputed by both Nicaragua and Honduras.
Let us consider the situation in terms of the practical interests of the Parties. If the position of
El Salvador and the decision of the Court referred to a condominium that included Honduras in the
entrance Channel, as well as in the Gulf proper, then it would have been absurd for Honduras to
have protested a position so evidently in its interests and against the interests not only of Nicaragua
but of El Salvador itself, both then and now.
It is also clear that the Court and the Parties agreed that in the entrance Channel the only
overlapping of jurisdictions was between Nicaragua and El Salvador. The following question and its
answer by the Court make this clear:
"Twelfth Question. Are the high parties litigant in accord as to the fact that the
waters embraced in the inspection zones that pertain to each, respectively, are
intermingled at the entrance of the Gulf?
The Judges answered unanimously that the high parties are agreed that the waters
which form the entrance to the Gulf intermingle."
This intermingling was between El Salvador and Nicaragua, the two Parties to the case. The
question was addressed as to the position of the two Parties in the case. Are they agreed that the
waters intermingle and the Court answered yes.
A reading of the 24 Questions posed to the Members of the Central American Court by its
President will show that in the only moment that the Members of the Court considered that the rights
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of Honduras had to be respected, a special mention or reservation was made. The answer to
question 11 - which I have read above - makes this clear. In the case of question 12, since it is a
reference to the entrance only, no mention is made of Honduran rights.
This one point that has been made by the Parties refers to what I have titled the:
Limits of the competence and jurisdiction of the Central American Court
El Salvador has maintained the position that the powers of the Central American Court had a
sort of supranational extension. In this respect, His Excellency the Foreign Minister of El Salvador
quoted Article 25 of the Statute of the Court (CR 91/39, p. 48). Let us explore this argument
further.
The Central American Court of Justice originated in a Conference held in Washington from
November 14 to December 20, 1907. Representatives of the five Central American Nations were
present and signed several instruments on the last day of the conference. Among these was a
convention establishing the Central American Court of Justice (generally, see Hudson, M., The
Permanent Court of International Justice, N.Y. 1943, pp. 42-70).
The convention establishing the Court (AJIL - Supp. 1908-, pp. 231-243) bound the five
signatories to submit to it:
"all controversies or questions which may arise among them, of whatsoever nature and
no matter what their origin may be, in case the respective Departments of Foreign
Affairs should not have been able to reach an understanding" (Art. I).
Article XXII gave the Court power
"to determine its own jurisdiction interpreting the Treaties and Conventions germane to
the matter in dispute, and applying the principles of international law".
The Court understood these two Articles to have given it a cumpolsory jurisdiction over the
five nations (AJIL 1917, pp. 697-700). Nicaragua denied this competence and addressed an
explanatory Note concerning its position to the other Central American States. We have included
this correspondence in Annex 5 and more documentation on this subject can be seen in AJIL
(Supp. 1917) pages 5 and following.
The current position of Nicaragua on the status of the Judgment has been given in our Written
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Statement, pages 49 and 50. The object here is to point out what the Central American Court of
Justice interpreted as the limits to its judicial powers, based upon an interpretation and an
application of a treaty signed by five nations, among them Honduras. The Court did not consider for
one moment that because Honduras was not a party it would not be affected by the decision given.
The only argument over the effects the decision could have on third parties was what the Court
called
"the fundamental argument: that the Court has no jurisdiction over the subject-matter
of this suit because it involves interests of a third nation that is not subject to the
authority of the Court" (AJIL 1917, p. 698).
The third nation in reference was the United States - the other party to the Chamorro-Bryan
Treaty - and not Honduras.
The Court considered that the finding it was giving on the status of the Gulf was opposable
erga omnes because it referred to property in Central America:
"The absolute competency of the Court is guaranteed by the fact that the
Bryan-Chamorro Treaty relates immediately to the legal order created in Central
America, and contracts exclusively respecting property located in Central America over
which it is natural that this international court of justice should be the only authority
called upon to settle controversies between two or more States arising out of an action
that may be called real."
The Central American Court, with its juridical roots in municipal law, saw the action in the
same light as a dispute brought by a private person involving real estate before a municipal court.
Whatever it decided on the ownership of the property was opposable to all. It was, as it said, an
"accion real". Honduras was bound by the "legal order" the Court was establishing in that part of
Central America called the Gulf of Fonseca. Further to these thoughts, it could be mentioned as a
footnote that the Convention that established the Court had no comparable limit to the effects of a
decision as that of Article 59 of the Statute of the International Court of Justice.
Nicaragua's position is that this reasoning was incorrect and that the decision was not
applicable to Honduras. In saying this, Nicaragua is exercising its privileges as a Party to the
Convention that established the Central American Court of Justice and also as a Party to the case in
question. Even if the Chamber were in agreement with this opinion, Nicaragua considers that the
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Chamber can make no finding on the application of the decision of the Central American Court of
Justice if the three parties affected by the decision of the Central American Court - and the Court
clearly thought that its finding affected Honduras as a riparian - are not also parties before this
Chamber.
The only way to find that the Judgment of the Central American Court doesn't affect
Honduras is to determine that the Central American Court exceeded its jurisdiction - this
determination not being based on general principles of law - but on an interpretation of the
Convention establishing that Court. This finding cannot be made if Nicaragua is not a Party before
the Chamber.
Now I will refer to a general topic which I have titled Third Party Interests
It is common for States to show a general interest in the outcome of a case involving a
delimitation or one relating to the indication of the principles involved in a delimitation or, like the
present case, one involving the status of an area. This interest has been more than a general one in
the intervention cases that have involved Malta, Italy and now Nicaragua.
One principal interest in the decision is due to what has been called the "knock-on" effect of
any such determination, indication or delimitation. This effect is "a tendency for a delimitation
conducted between one pair to influence the placing of a line between another pair of States"
(Evans, Malcolm D., Relevant Circumstances and Maritime Delimitation, Clarendon Press,
Oxford, 1989, p. 236).
Dr. Evans points out
"Just as the existence of boundaries can affect the placing of subsequent
boundaries, so does placing a boundary in an area substantially undelimited have a
potential to influence subsequent delimitations - despite the strictly inter vivo nature of
the agreement."
For its part, the Chamber pointed out in Paragraph 77 of the Judgment:
"It occurs frequently in practice that a delimitation between two States involves
taking account of the coast of a third State; but the taking into account of all the coasts
and coastal relationships within the Gulf as a geographical fact for the purpose of
effecting an eventual delimitation as between two riparian States - El Salvador and
Honduras in the instant case - in no way signifies that by such an operation itself the
legal interest of a third riparian State of the Gulf, Nicaragua, may be affected."
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It is understable that the possibility of the so called "knock-on" effect has not deterred the
Court from acting in past cases. If the possibility of this effect inhibited the Court from acting, it
would probably be impossible for it to do so in most cases. These are understandable reasons but
they are based on practical considerations and not on a priori reasoning. These types of
consideration, then, have to be analyzed in each particular case to see that the "practical" part of the
consideration holds for the case at hand.
In the hearings on Nicaragua's application for permission to intervene, I stated that if the
delimitation was between Costa Rica and Panama or between Guatemala and El Salvador,
Nicaragua would have been interested but not to the point necessarily that its interests would be
affected.
Now, what is the situation at the mouth of the Gulf of Fonseca. It is under 20 miles wide.
The median point of this closing line is 9.5 miles distant from Nicaragua and from El Salvador.
Even if Honduras were given entitlement by the Chamber only in what they call the western sector of
the closing line of the Gulf, what would be the resulting situation? The so-called "western sector" at
the closing line would be approximately 9.5 miles wide. If Honduras were allotted the total width it
claims, at the mouth of the Gulf, this would come to 6.5 miles, leaving 3 miles to El Salvador. In
that case, this 6.5 miles wide projection running 200 miles into the Pacific would have the biggest
knock-on effect in the history of delimitations.
This "knock-on" effect is undoubtedly increased when any delimitation is concluded under the
authority of a Chamber of the International Court of Justice. Dr. Evans, in the work we have
quoted, considered that the impact of a delimitation made with such authority was kept in mind by
the International Court of Justice in the Malta/Libya case. He points out that this influence which
the fixing of one boundary has on the fixing of other future boundaries:
"underlines the seemingly extraordinary decision by the Court in the Malta/Libya case,
determining the boundary of the delimitation area between Malta and Libya, to give
effect not to any boundary concluded with Italy, but to claims made by Italy" (p. 238).
Paragraph 73 of the Judgment of the Chamber says
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"It is true that a decision of the Chamber rejecting El Salvador's contention, and
finding that there is no condominium in the waters of the Gulf which is opposable to
Honduras, would be tantamount to a finding that there is no condominium at all.
Similarly, a finding that there is no such 'community of interests' as is claimed by
Honduras, between El Salvador and Honduras in their capacity as riparian States of the
Gulf, would be tantamount to a finding that there is no such 'community of interests' in
the Gulf at all. In either event, such a decision would therefore evidently affect an
interest of a legal nature of Nicaragua; but even so that interest would not be the 'very
subject-matter of the decision' in the way the interests of Albania were in the case
concerning Monetary Gold Removed from Rome in 1943." (I.C.J. Reports 1990,
p. 92, para. 73.)
The Chamber distinguishes between levels in which interests may be affected. The Monetary
Gold case is the extreme example of a situation that would necessarily affect the interest of a third
party if it were adjudged by a court because those interests would be the "very subject-matter of the
decision". The position of Nicaragua is that, being a non-party to the case, it cannot be affected even
in a minor way in its interests, even if they are not the very subject-matter of the decision.
To end this part of our exposition, I wish to make a short statement on the Delimitation line
of 1900 with Honduras.
For the purposes of this case, Honduras has claimed that the boundary with Nicaragua is not
clearly established in the Gulf of Fonseca and that the clear description of the line given in the
second Acta of 1900 should be stretched to Farallones. If the boundary line clearly established
in 1900 and completed by the Award of the King of Spain up to the Atlantic, which in its turn was
confirmed by the Court, in its recognizing the Honduras Constitution, if this line is not respected,
then the whole border situation with Honduras is reopened. In that case, Nicaragua must reserve its
rights generally on the whole question of the Nicaraguan-Honduran borders. It is not the interest of
Nicaragua to be reopening border questions that have been settled by time, mixed-commissions,
treaties, arbitration and even a Judgment of the Court. But if Honduras considers that the starting
point of our mutual delimitation is not clearly established, then everything has to be opened for
review.
In its Observations to the Written Statement of Nicaragua, Honduras added a footnote on
maps. The purpose of this footnote is to try to give weight to its arguments for reopening the border
question with Nicaragua. This point has again been in issue in these oral proceedings. Another
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point brought up by Professor Pierre-Marie Dupuy is that a certain Nicaraguan/Honduran
Commission established last year has a bearing on this case. He also mentioned certain naval
patrols. These issues will be addressed properly at the final intervention of Nicaragua. At this
point, I will only make reference to the general reservation made by Nicaragua in page 65 of its
Written Observations of 14 December 1990:
"Nicaragua reserves its position generally on all the statements of fact and of law
made by the Parties in their several Pleadings."
With that, M. President, I conclude my presentation at this stage of the oral hearings.
At the end of the next sequence of oral hearings Nicaragua intends to present Formal
Conclusions and, in so far as this may be necessary, offer further brief reflections on the substantive
issues with which the intervention is concerned. At the same juncture H.E. Mr. Enrique Dreyfus
Morales, the Foreign Minister of Nicaragua, will address shortly the Chamber.
Professor Brownlie will now deal with the functions of intervention and the related legal
issues. Thank you, Mr. President.
The PRESIDENT: I thank Ambassador Argüello, Agent of Nicaragua. The Chamber will
take a break of 15 minutes.
The Chamber adjourned from 11.35 to 11.50 a.m.
The PRESIDENT: The sitting is resumed and I give the floor to Professor Brownlie.
Mr. BROWNLIE: Thank you Mr. President.
First of all, I would like to express my pleasure at appearing once again before this
distinguished Chamber and I would like to add that that pleasure is enhanced rather than diminished
by the number of procedural contingencies which have befallen the Government of Nicaragua.
- 40 -
My repertoire will be founded upon the various aspects of intervention as an institution for the
protection of the interests of a third State in cases where the Monetary Gold principle has not been
held to be applicable. And, of course, my agenda will be restricted by the decision of 13th
September last year:
"that Nicaragua has a legal interest which may be affected by a decision as to the legal
regime of those waters, i.e., a decision in favour of the contention of El Salvador, that
the waters of the Gulf are subject to a regime of condominium, or a decision in favour
of the contention of Honduras, that there exists a community of interests between the
three States in the waters of the Gulf" I.C.J. Reports 1990, p. 136, para. 104).
The precise function of intervention is a matter to be determined on the basis of common sense and
legal principle. It cannot usefully be determined on the basis of the usual sources because both the
decision of the Court and the legal literature are almost exclusively devoted to the conditions on
which intervention may be permitted. As a result, it is the passport which has attracted most
attention, rather than the journey itself. In these unusual conditions counsel has the duty to find the
best means of protecting the interests of the State he represents, whilst providing as much assistance
as possible to the Chamber.
A. The Informative or Prescriptive Function of Intervention:
Mr. President, there can be no doubt that one function of intervention is to inform the
Chamber of the nature of Nicaragua's rights within the Gulf. In his separate opinion in the Italian
Intervention case, Judge Mbaye emphasized that the aim "is to inform the Court of the nature of the
rights" which the intervening State claims to possess "and which are at issue [en cause] in the
dispute ..." (I.C.J. Reports 1984, p. 45).
In the opinion of Judge Mbaye, this function was concerned with ensuring "the sound
administration of justice" and the purpose was to provide information as to the rights of the
intervener "to such an extent that the decision to be made might adversely affect them" (ibid.).
The Chamber itself has adopted a similar position and in its decision of last year, it observed:
"So far as the object of Nicaragua's intervention is 'to inform the Court of the
nature of the legal rights of Nicaragua which are in issue in the dispute', it cannot be
said that this object is not a proper one: it seems indeed to accord with the function of
intervention... It seems to the Chamber, however, that it is perfectly proper and, indeed,
the purpose of intervention, for an intervener to inform the Chamber of what it regards
as its rights or interests, in order to ensure that no legal interests may be 'affected'
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without the intervener being heard ..." (I.C.J. Reports 1990, p. 130, para. 90.)
And so, for present purposes, my first task must be to report to the Chamber on the
incompatibility of the condominium thesis of El Salvador with the legal rights of Nicaragua, in the
Gulf. In so far as the condominium thesis is related to the Judgment of the Central American Court
of Justice, Mr. Argüello has made all the necessary points. And so, it is my task to draw the
attention of the Chamber to certain other aspects of the condominium thesis.
This subject has been rehearsed extensively in Nicaragua's Written Statement and it is
necessary only to make certain points by way of emphasis.
In the first place, there is a presumption against the existence of a special regime involving a
substantial departure from the normal regime of territorial sovereignty and of entitlement to maritime
zones. The small number of examples of the condominium in practice refer to almost entirely to land
territory and the presumption against the existence of a condominium is even stronger in the cae of
maritime territory.
The presumption against the existence of a condominium is, in fact, reinforced in present
circumstances:
(1) There is no special agreement defining the alleged regime.
(2) Two of the alleged participants have steadfastly resisted the claims of El Salvador ever
since they were formulated in 1913.
No doubt in theory a regime of condominium could be proved to exist on the basis of a
consistent practice and mutual recognition. However, El Salvador has failed to prove that such a
legal regime was in place at any time.
In the second place, El Salvador did not advance the condominium thesis in the
post-independence period. This silence endured from 1838 until 1913 and it is therefore not
surprising to find that Nicaragua and Honduras were unwilling to accept the novel claim when it
surfaced abruptly in 1913. In this context, it is also important to recall the failure of El Salvador to
react when Nicaragua and Honduras concluded their Delimitation Agreement in 1894. This silence
on the part of El Salvador continued during the work of the Mixed Commission which resulted from
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the Delimitation Agreement of 1894.
Finally, on the question of the alleged condominium, it is necessary to consider the argument
of El Salvador that the decision of the Central American Court of Justice resulted in the creation of
an "objective juridical regime". In its Counter-Memorial, El Salvador argues:
"that by reason of the decision of 1917 and on the basis thereof, there was created in the
Gulf what the writers on Public International Law describe as an 'Objective Juridical
Regime', valid erga omnes, which has been consolidated with the passage of time and
which has obtained the recognition by and the acquiescence of States in general and, in
particular, of the maritime powers, who have never placed in doubt the character of the
Gulf as a bay exclusively belonging to its three riparian States, while at the same time
they have benefitted from the right of innocent passage proclaimed by the decision of
1917" (CMES, p. 233, para. 7.32).
In our submission this argument is untenable. Such a regime would have to have a basis
either in the law of Treaties or in a process of general recognition in the international community.
The Law of Treaties provides no basis for such a regime and the Counter-Memorial of
El Salvador gives an unfortunately incomplete picture of developments in the International Law
Commission and at the Vienna Conference. The final report of the Commission to the General
Assembly contains a substantial section devoted to "Treaties and third States" which confirms that
the possibility of creating objective regimes by treaty was very problematical (Yearbook
I.L.C., 1966, Vol. II, pp. 226-31).
The furthest the Commission would go was to adopt a draft article, Article 34, according to
which:
"Nothing in Articles 30 to 33 precludes a rule set forth in a treaty from becoming
binding upon a third State as a customary rule of international law." (Ibid.,
pp. 230-32.)
And in this context the Commission considered the question of "objective regimes" and
reached the following conclusion:
"Since to lay down a rule recognizing the possibility of the creation of objective
regimes directly by treaty might be unlikely to meet with general acceptance, the
Commission decided to leave this question aside in drafting the present articles on the
Law of Treaties. It considered that the provision in Article 32, regarding treaties
intended to create rights in favour of States generally, together with the process
mentioned in the present Article, furnish a legal basis for the establishment of treaty
obligations and rights valid erga omnes, which goes as far as is at present possible.
Accordingly [the Commission continues], it decided not to propose any special
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provision on treaties creating so-called objective régimes." (Ibid., p. 231.)
That is the end of the quotation from the Report of the Commission to the General Assembly.
The Vienna Convention on the Law of Treaties includes a provision (Art. 38) to the effect that
the Articles concerning third States did not preclude "a rule set forth in a treaty from becoming
binding upon a third State as a customary rule of international law, recognized ad such" (emphasis
added).
The question can now be posed, is there a customary rule, recognized as such, affirming the
existence of a condominium in respect of the Gulf of Fonseca. The pertinent criteria concerning the
formation of a customary rule are exacting and there is no evidence to be found in the pleadings of
El Salvador which would come near to satisfying the criteria for the formation of a rule of custom.
Indeed, two or the riparians have consistently resisted the concept of a condominium.
The Counter-Memorial of El Salvador invokes the teachings of publicists in favour of the
existence of "objective juridical situations" (pp. 233-234, para. 7.35). This assertion is flawed in at
least two respects.
First, it is simply not correct to say that publicists in general recognize a discrete category of
objective régimes. In reality, modern publicists tend to reflect the caution evident in the final report
of the International Law Commission which I have already quoted and I refer for example to the
general work of Podesta Costa and Ruda (Derecho International Publico, 1985, II, pp. 97-98).
In the second place, those publicists who do refer to the Gulf of Fonseca and the decision of
the Central American Court of Justice signally fail to indicate that the views of the Court have any
wider connotation. A good example is the fairly detailed treatment in O'Connell's well regarded
treatise on The International Law of the Sea (Vol. I, 1985, pp. 436-437). Similarly, Judge Charles
De Visscher makes no reference to any objective régime in the relevant passages of his classical
study of Problèmes de confins en droit international public, 1969, pages 137 and 138.
In our view then, there is no legal justification for the thesis that a condominium has existed at
any time in the Gulf of Fonseca.
Mr. President, I turn now to the Honduran argument that the Gulf is subject to a régime based
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upon a community of interests. Nicaragua's objections to this argument have been laid out in Part III
of our Written Statement and for present purposes it is necessary to stress certain points only.
The question of the status of the waters of the Gulf, in the absence of a régime of
condominium is essentially in our submission that of the Law of the Sea modified to some extent by
local custom as to innocent passage. The concept of a community of interests, quite simply, does not
find a place in the Law of the Sea. The records of the Third United Nations Conference and the
provisions of the United Nations Convention on the Law of the Sea do not contain a single reference
to the concept. The large study of Professor O'Connell published in two volumes in 1982 and 1984
includes no reference to the concept. Nor does the concept appear in monographic studies of
boundary problems such as, and I have mentioned it already, Charles De Visscher's work on
Problèmes de confins en droit international public.
The passages in the Honduran Memorial (French text, Vol. II, pp. 625-628) on "the
emergence of the notion" are very revealing. The evidence presented consists of a diversity of
completely unrelated items none of which is concerned with the Law of the Sea. Given the entirely
artificial provenance of this concept it is not surprising to find that it lacks definition and content.
Thus the Honduran Government states and restates the formula of the equality of States
without defining the entitlements which are supposed to flow from this equality. The
Counter-Memorial for example states that "co-operation" is a duty which flows from a community of
interests (CMH, French text, Vol. II, pp. 682-683 para. 20) and further that "co-operation
presupposes delimitation" (ibid., p. 683, para. 21). These extremely vague assertions are not
supported by any legal authority.
The invocation of the concept of "equality of rights" in the submissions of Honduras remains
without a legal foundation. As Nicaragua had cause to explain in the Written Statement:
"In so far as equality has any legal meaning, it has to be applied in the context of
a code of some kind relating to a particular subject-matter. In the case of the waters of
the Gulf such a code can only derive either from the practice of States or from the
principles of general international law relating to the Law of the Sea. The 'community
of interests' asserted relates to no State practice or local custom. Consequently the
principles of the Law of the Sea are applicable. Indeed, the Government of Honduras
asserts that a community of interests 'implies delimitation' and this could only take place
in accordance with the relevant Law of the Sea principles." (Written Statement,
Part III, para. 12.)
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Mr. President, in concluding my remarks on the community of interests argument, I would like
to stress that this had not been heard of until the pleadings in this case. The evidence of this includes
the fact that the Honduran Government cannot invoke a single one of its own diplomatic documents
to support the argument.
The explanation for this in our submission is very straightforward. Honduras does not accept
the condominium thesis but needed an acceptable and suitably flexible substitute, which would
provide a useful device for seeking to establish a presence on the closing line of the Gulf.
In other words the community of interests is a forensic invention, an extra-legal solecism. As
such it is inimical to any genuine conception of equality within the rule of law. It has been specially
designed to produce advantages for Honduras which would not be obtainable in accordance with the
relevant principles of general international law. The objective in other words is not equality but
privilege.
B. The Protective Function of Intervention
In the Italian Intervention case the Court recognized that
"Article 62 of the Statute envisages that the object of the intervening State is to
ensure the protection or safeguarding of its 'interest of a legal nature' by preventing it
from being 'affected' by the decision." (I.C.J. Reports 1984, p. 23, para. 37; see also
ibid., p. 18, para. 28.)
The Judgment of this Chamber last year adopted a similar position, for example, in the
following passage:
"In the light of these statements, it appears to the Chamber that the object stated
first in Nicaragua's Application, namely 'generally to protect the legal interests of the
Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all
legal means available', is not to be interpreted as involving the seeking of a judicial
pronouncement on Nicaragua's own claims."
The Chamber continues:
"The 'legal means available' must be those afforded by the institution of
intervention for the protection of a third State's legal interests. So understood, that
object cannot be regarded as improper." (I.C.J. Reports 1990, p. 131, para. 92; see
also p. 129, para. 87.)
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In the submission of Nicaragua the protective function is not to be equated with the
informative or prescriptive function of intervention characterized so aptly by Judge Mbaye as being
concerned with ensuring "the sound administration of justice".
The protective function complements the informative function but provides the intervening
State with the opportunity to explain the legitimate interests of the intervener which are placed in
issue by the litigation between the Parties.
The function of protection involves a consideration of the objectives of the litigants and the precise
modes in which those objectives may affect the legal entitlements of the intervening State.
This function inevitably and appropriately goes beyond the informative function and the issues
in the present proceedings provide a perfect illustration of the relation between those two functions.
Nicaragua has been permitted to intervene in order to explain how its legal interest may be
affected by a decision in favour of the condominium thesis or a decision in favour of the argument
based on the existence of a community of interests.
The passive mode of explaining how its legal interest may be affected involves informing the
Chamber that there is no legal justification for either the condominium thesis or the argument based
on community of interests.
Obviously, the recognition of such arguments, in spite of the formal protection of Article 59 of
the Statute, in the real world of law and politics would "affect" the legal interest of Nicaragua.
Mr. President, there remains a necessity to build up the picture in order to provide an active
mode for the effective protection of Nicaragua's legal interest. This active mode has two elements.
First, a consideration of the legal entitlements of Nicaragua which would be substantially prejudiced
by the recognition of a condominium opposable to Honduras or a community of interests.
Secondly, it is necessary to examine the collateral purposes which would be served by the
argument based upon community of interests.
I turn first of all to the legal entitlements of Nicaragua which would be substantially
prejudiced.
The governing category is the legal interest which may be affected in terms of Article 62 of the
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Statute. There is some analogy here with the concept of a "legally protected interest" in the context
of the law of State responsibility and international claims. In that context, as
President Sir Robert Jennings recognized in this General Course given to the Hague Academy, an
applicant has locus standi "only where there is an issue of fact of law between the particular parties
in the sense that it affects a legal interest vested in the applicant" (RCADI, Vol. 121 (1967-II),
p. 507).
Mutatis mutandis for the purposes of intervention in present circumstances the legal interest
vested in the intervening State is to be established in the context of the Law of the Sea.
As a coastal State, Nicaragua has legal entitlements both in the waters and sea-bed
appurtenant to her coasts.
And so, the nature of these entitlements according to general international law can be
summarized as follows:
(i) A coastal State, as such, has attached to it a corresponding portion of maritime
territory consisting of a territorial sea. This entitlement arises by operation of
law, as Judge Sir Arnold McNair recognized in his dissenting opinion in the
Fisheries case, I.C.J. Reports 1951, p. 160). And in that case the Court itself
referred to "the character of territorial waters as appurtenant to the land territory"
(ibid., 128).
(ii) By virtue of its status as a coastal State Nicaragua has an entitlement to
continental shelf rights. Such rights do not depend on express proclamation and
date back to the appropriate stage in the development of the law.
(iii) As far as it may be relevant, a coastal State has the right to establish a zone not
greater than 200 miles from the baselines for purposes recognized as falling
within the concept of the exclusive economic zone.
This recital is no doubt very familiar to the Chamber but it is necessary to assert the
consequences in general international law of Nicaragua's status as a coastal State within the Gulf
with sovereignty over a coastal sector some 30 miles in length. The entitlements to territorial sea and
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to shelf rights are inherent and exist ipso facto.
Moreover, in the maritime areas adjacent to Farallones abutting upon the 12 mile sector of
coast facing Meanguera and parallel to the coast of El Salvador, Nicaragua has a predominant
interest which is a natural consequence of the legal entitlement of a coastal State, with sovereignty in
respect of Farallones and of the geographical framework in general.
In the submission of Nicaragua, these essential legal entitlements should not be overridden by
any recognition of either a condominium or a regime of the so-called community of interests.
Mr. President, I move next to an examination of the collateral purposes which would be
served by the argument based upon a community of interests.
The pleadings of Honduras involve repeated assertions that the consequences of the
establishment of a regime of community of interests include the creation of jurisdictional zones of
some unspecified type, both within the Gulf and beyond the closing line of the Gulf (see for example,
the Memorial, French text, Vol. II, pp. 687-708, paras. 95-144).
In particular, the submissions presented in the written pleadings reveal that the thesis of a
community of interests had the ambitious and radical objective of establishing a jurisdictional zone
for Honduras which would necessarily abut upon Nicaragua's maritime entitlements.
In the Honduran Reply, the submissions "concerning the zone subject to delimitation within
the Gulf" include several submissions which provide the rationale for the "community of interests"
thesis.
"C. With respect to the maritime dispute:
1. Concerning the zone subject to delimitation within the Gulf: to adjudge and
declare that the community of interests existing between El Salvador and Honduras, by
reason of their both being coastal States bordering on an enclosed historic bay produces
between them a perfect equality of rights, which has nevertheless never been
transformed by the same States into a condominium.
- to adjudge and declare, therefore, that each of the two States is entitled to
exercise its powers within zones to be precisely delimited between El Salvador and
Honduras; ...
- to adjudge and declare that the community of interests existing between
El Salvador and Honduras as coastal States bordering on the Gulf implies an equal
right for both to exercise their jurisdictions over maritime areas situated beyond the
closing line of the Gulf ..."
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It thus appears that the community of interests is really about entitlement to zones of exclusive
jurisdiction. And it also appears that there is a chain effect. Thus the inherent rights to a zone of
exclusive jurisdiction within the Gulf are assumed to generate inherent rights to maritime areas
situated outside the Gulf.
In the context of such radical territorial claims, the issue of delimitation is secondary and the
question of entitlement is anterior and fundamental. It is the entitlement alleged to flow from the
concept of a community of interests which, in terms of Article 62 of the Statute, may affect the
maritime entitlements of Nicaragua, which entitlements represent major legal interests.
The question of entitlement logically results from the Honduran submissions based upon a
community of interests. In the interior of the Gulf a significant jurisdictional intrusion would
become established. The status of the waters of the Gulf would, in the perception of Honduras, be at
one level a community of interests but this would, in fact, involve a partition of the waters, to the
disadvantage of Nicaragua.
C. Reviewing Third Party Interests:
Mr. President, I have completed my examination of the protective function of intervention and
I move on to another function, which is that of monitoring the interests of third States. Perhaps the
two functions reinforce each other, but they are not necessarily identical. Two factors come into
play for present purposes. The first is that a substantial body of judicial opinion has recognized that
Article 59 of the Statute does not provide direct protection for the legal interests of third States.
If I may quote from your dissenting opinion in the Italian Intervention case, Mr. President:
"In paragraph 42 the Judgment discusses the relationship between Articles 59
and 62 of the Statute, a problem on which there was much to say during the pleadings."
You said:
"I believe that Article 59 is intended to preserve the relative character of the res
judicata in a general way. If it would provide sufficient protection for third States in
the circumstances under which they are compelled to apply for permission to intervene,
Article 62 would have no place in the Statute. If Italy resorted to Article 62 it was not
by mere choice, as is said in ... the Judgment, but because it considered that the decision
to be given by the Court in the principal case might affect its interests of a legal nature.
This is a form of direct protection provided for by Article 62, different from the general
principle of Article 59, which confines itself to enunciate the principle that judgments
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are res inter alios acta for third States." (I.C.J. Reports 1984, p. 87, para. 81.)
Four other Judges participating in that case also expressed very serious reservations about the
efficacy of Article 59 for present purposes (see ibid., pp. 46-47 (Judge Mbaye); pp. 102-105
(Judge Oda); p. 134, paras. 9-10 (Judge Schwebel); pp. 157-160 (Judge Sir Robert Jennings, as he
then was)). Consequently, it is a matter of importance that the position of third States be explained,
to some extent at least on their own terms, in order to seek that element of direct protection which
Article 62 is expected to provide.
The direct monitoring of the legal interests of third States also involves a second factor. The
problems of intervention involve a polarity between the possible refusal to exercise jurisdiction at all
in accordance with the principle of the Monetary Gold decision and the possibility of "party" or
"mainstream" intervention.
Between these two polarities there is a certain grey area in which elements of discretion and
judicial propriety can be expected to play a role. This is particularly the case with intervention by
virtue of Article 62, that is, in cases of intervention not as of right.
The role of judicial propriety in this context was noted by Judge Fitzmaurice in his
commentary on the work of the Court (British Year Book, Vol. 34, 1958, pp. 126-127). The issue
of propriety was also noticed by Judge Sir Robert Jennings, as he then was, in the Italian
Intervention case, in which he made the following observations:
"It is the principle of consensual jurisdiction itself which, even in the absence of a
jurisdictional link or other consent of the main parties, requires the possibility of a
limited form of intervention when the case between the original parties is about a
subject-matter in which a third State has rights which are put in issue, and therefore in
jeopardy, by the action. In the absence of a jurisdictional link, that third State is not in
a position to protect its interests by an application under Article 40, paragraph 1, of the
Statute. Yet neither should the main action result in the Court exercising jurisdiction
over a matter in which the third State has material rights, and in the absence of that
third State, if it desires to intervene. The impropriety of exercising jurisdiction in the
face of a substantial interest of a third State in the same subject-matter, that State not
being before the Court is strikingly illustrated by the Monetary Gold Removed from
Rome in 1943 case (I.C.J. Reports 1954, p. 19). It is true that in that case the legal
interest of the third State, Albania, was before the Court because of the terms of the
compromis itself, by which also Albania was in effect invited to make application to the
Court to intervene but did not do so. Yet in the absence of Albania, the Court refused
even to pass upon the contingent interests in the same subject-matter of the three States
who were before the Court." (I.C.J. Reports 1984, p. 148, para. 2.)
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The point which thus emerges is that even when the Monetary Gold principle is not considered
to be applicable, and intervention is permitted, there is still a residual but significant factor of
propriety which remains in play. It would, after all, be strange if it were a case of Monetary Gold or
nothing. This was certainly not the view of the majority of the Court on the Merits phase of the
Libya/Malta case when the claims of Italy were allowed to produce extensive limits upon the
competence of the Court (I.C.J. Reports 1985, pp. 25-27, paras. 21-23). Since this was not the
result of an intervention, that limitation could only have been based upon principles concerning
certain inherent limits to the judicial function.
In spite of some references to "the special features of the present case" by the Court in 1985
(I.C.J. Reports 1985, p. 28, para. 23) it is submitted that the decision of that Court sounds a
necessary note of judicial caution. And, of course, the Libya/Malta case was also founded upon a
special agreement.
Mr. President, I can now move forward to another aspect of intervention, which is the
identification of those interests of third States which form part of the consideration of issues of
merits in cases involving maritime territory.
D. Third Party interests recognized in the Law of the Sea
In this respect it is necessary to make a distinction. In the merits phase of the Libya/Malta
case the Court referred to the interests of a third State as a basis for limiting its judicial function,
that is to say its jurisdiction in a broad sense (I.C.J. Reports 1985, p. 26, para. 21 in fine).
This involved an exercise of the compétence de la compétence.
In contrast a court seised of a case involving title may refer to the legal interest or claims of
third States in the region as an element in the judicial reasoning on the merits themselves.
And this is what happened for example in certain adjudications concerning sovereignty over
land territory such as the Eastern Greenland case (P.C.I.J., Series A/B, No. 53, p. 46). In the case of
land territory the question of third party rights is likely to be set aside as essentially irrelevant when
the tribunal is asked to decide title only as between the two parties (cf. Burkino Faso/Republic of
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Malie Frontier Dispute, I.C.J. Reports 1986, pp. 576-580, paras. 44-50).
However, in the case of maritime disputes the situation is more complex and this especially in
cases involving territorial sea or continental shelf rights.
The point was made with clarity and economy by Judge Oda in 1984. In his words:
"The subject-matter of this case does not concern claims arising out of an alleged
breach of any obligation which one party may have accepted in relation to the other,
being thus a matter of concern only to the litigant States. No, what is really disputed
between Libya and Malta relates to titles to submarine areas. The claims concerned are
thus of a territorial nature and as such are made erga omnes. In other words, the titles
established may well be asserted not only between Libya and Malta but as regards all
other States. It will be recalled that the essentially territorial nature of continental shelf
disputes was confirmed by the Court in its Judgment in the Aegean Sea Continental
Shelf case (I.C.J. Reports 1978, paras. 86-90) and indeed formed a main factor in that
decision." (Italian Intervention, I.C.J. Reports 1984, p. 108, para. 37.)
Judge Sir Robert Jennings dealt with the same point in that case.
And the emphasis on the inherent nature of continental shelf rights is also to be found in the
same case in the opinion of the President of this Chamber (ibid., pp. 87-88, para. 82).
What then are the third paty interests which are recognized in the Law of the Sea and relevant
to the task before the Chamber?
There can be no doubt that third party interests may constitute "relevant circumstances" in the
context of maritime delimitation and the Court adopted this view in the Tunisia/Libya case
(I.C.J. Reports 1982, p. 64, para. 81). But delimitation is not within my mandate and I shall not
pursue that theme.
On the other hand, the purpose and scope of the submissions of Honduras concerning a
community of interests within the Gulf are matters on the agenda of intervention today and these
Honduran claims create significant threats to the maritime entitlements of Nicaragua.
In the view of Nicaragua, the status of the waters of the Gulf is to be addressed in the light of
the pleadings and, in particular, in the light of the submissions of Honduras. Those pleadings and
those submissions reveal that Honduras is claiming maritime areas within the Gulf and, on that
basis, outside the Gulf also.
These claims, if valid in principle, would involve a process of delimitation and the Honduran
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submissions call for delimitation. However, the preliminary and discreet question is that of
entitlement. It would be perfectly possible to have an action for a declaration of the validity of
certain entitlements on the basis of an application or a special agreement which reserved the question
of delimitation. In effect, this is what was done by the parties in the North Sea cases.
The distinction between entitlement and delimitation, delimitation being a secondary question,
was well recognized by the Court in the Aegean Sea case. And, with your permission, I quote a
passage from that Judgment which is of particular relevance. The Court said:
"The contention based on the proposition that delimitation is entirely extraneous
to the notion of territorial status appears to the Court to encounter certain difficulties.
Above all, it seems to overlook the basic character of the present dispute, clearly stated
though it is in the first submission in Greece's application. The basic question in
dispute is whether or not certain islands under Greek sovereignty are entitled to a
continental shelf of their own and entitle Greece to call for the boundary to be drawn
between those islands and the Turkish coast. The very essence of the dispute, as
formulated in the application, is thus the entitlement of those Greek islands to a
continental shelf, and the delimitation of the boundary is a secondary question to be
decided after, and in the light of, the decision upon the first basic question. Moreover,
it is evident from the documents before the Court that Turkey, which maintains that the
islands in question are mere protuberances on the Turkish continental shelf and have no
continental shelf of their own, also considers the basic question to be one of
entitlement." (I.C.J. Reports 1978, p. 35, para. 83.)
The position of Nicaragua is that the recognition of a Honduran presence in the main body of
the Gulf would affect the legal interests of Nicaragua substantially.
In particular, such a presence would disrupt the status quo established by the arrangements of
1894 and 1900 between Nicaragua and Honduras.
In addition, the recognition of an Honduran entitlement would involve an Honduran presence
at the closing line of the Gulf, with other ramifications of direct concern to Nicaragua.
Mr. President, the community of interests argument is in effect a flag of convenience for the
proposing of exclusively spatial claims of Honduras which could not be given credible presentation
in terms of the normal principles of the Law of the Sea.
The Law of the Sea issues in this case have had a somewhat tangential relation to the
arguments. This has been partly the result of the dispute over the interpretation of the Special
Agreement and partly the result of the decision by El Salvador to a large extent to refuse to discuss
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entitlement and delimitation as such.
As a consequence, Honduras has been able to present issues of entitlement more or less sub
rosa, on the basis that they were subsumed under the question of whether there was a community of
interests or not. Thus, for example, the submissions and arguments of Honduras present the
question of delimitation as a mere corollary of the issue of community of interests.
The preliminary question of entitlement by virtue of general international law is consequently
submerged by the artificial claim to a community of interests. The Law of the Sea is, however,
invoked to play an ancillary role as a basis for delimitation.
Nicaragua is not permitted to offer observations on the interpretation of the Special
Agreement. At the same time, in oder to exercise its rights by virtue of Article 62, it is respectfully
submitted, legitimate for the Government of Nicaragua to offer hypotheses which on any view would
have relevance to the application of the Special Agreement. And one such hypothesis, which is very
modest, involves the assumption that as a part of the judicial function the Special Agreement will be
applied in the context of general international law.
This is certainly the assumption of Honduras which invokes general international law in
relation to the delimitation of its claims and relies upon decisions like the North Sea cases and its
successors (see MH, French text, Vol. II, pp. 690-708; and CMH, French text, Vol. III, p. 704).
In the unusual setting created by the Special Agreement and the legal architecture of the
pleadings in this case, it is of great importance for Nicaragua that the issues of general international
law be given an appropriate role.
Mr. President, if a chart or map of the region of the Gulf of Fonseca is picked up, as it were
for the first time, and without the accretions of the pleadings of the Parties in this case, how would
the competent international lawyer proceed?
He would first of all examine the claims of the Parties. In the case of the Honduran claims
based upon a community of interests, he would, in our submission, first classify the problem as one
involving the Law of the Sea. He would, with all respect to our Honduran colleagues, be unlikely to
classify the problem as one involving an international river system.
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At this stage, the question which presents itself is this. Even if there is such a regime of
community of interests it is necessary to set it alongside the pertinent principles of general
international law. Indeed, this is clearly the assumption of Honduras, whose written pleadings
invoke Law of the Sea materials and concepts, when it suits them.
The nub of the matter is thus clear. If the principles of general international law are
applicable, then they are not applicable only at a certain stage and for certain purposes. The Law of
the Sea entitlements cannot, in our submission, be elided between the claim of a community of
interests and a delimitation phase.
Having picked up a map of the Gulf, and having studied the extent of the maritime claims of
Honduras, how would our archetypical international lawyer proceed further?
In our submission, he would not proceed directly to delimitation, but would approach the
preliminary question of entitlement as a logical priority.
Entitlement, like delimitation, is approached on the basis of the identification of the coasts
actually abutting upon the area to which the claims of the Parties relate. In the present case that
would not be too difficult and the geographical and legal framework would include the coasts of
Nicaragua.
And it is coasts that provide the basis of title after all. And title reflects both the concept of
qualification as a coastal State to possess maritime areas and also the content of the legal interest.
The Truman Proclamation gave emphasis to the concepts of management and control from the
coast and in the same connection referred to the element of security in controlling areas lying
offshore.
A similar theme appeared in the separate opinion of President Jiménez de Aréchaga in the
Tunisia/Libya case.
In the context of disagreement between the Parties about the principle of non-encroachment,
President Jiménez de Aréchaga stated certain basic principles.
In his words:
"69. The solution of this disagreement is to be found in the meaning which is to
be attributed to the correlative notion of 'natural prolongation'. If, as stated above, the
Court used this expression to describe the continuation of the coastal front of every
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coastal State, and not with a geological or geomorphological meaning, then the
'non-encroachment' in front of and close to the coasts of a State is the correct
interpretation of the principle. It is true that there may be geographical configurations
in which a boundary line cannot avoid 'cutting across' the coastal front of one State or
of both. But the principle of non-encroachment, being an equitable principle, is not a
rigid one. It admits a corrective element, which is the factor of distance from the coast.
If the above-described geographical situation occurs, then the 'cutting off' effect should
be allowed to take place at a point as far as it may be possible to go, seawards, from the
coastal front of the affected State.
70. This interpretation is confirmed by the very raison d'être of the institution of
the continental shelf as it appeared and developed in the middle of the present century.
The reason which explains the wide and immediate acceptance of the doctrine was not
so much the possibility it offered of exploiting the natural resources of the shelf, but
rather the fact that it authorized every coastal State to object to the exploitation of the
sea-bed and subsoil in front of its coasts being undertaken by another State."
(I.C.J. Reports 1982, pp. 119-120.)
Moreover, the key principles are encapsulated in a passage from the Judgment of the Court in
the Libya/Malta case which is as much concerned with title as it is with delimitation.
The Court said this:
"The normative character of equitable principles applied as a part of general
international law is important because these principles govern not only delimitation by
adjudication or arbitration, but also, and indeed primarily, the duty of Parties to seek
first a delimitation by agreement, which is also to seek an equitable result. That
equitable principles are expressed in terms of general application is immediately
apparent from a glance at some well-known examples: the principle that there is to be
no question of refashioning geography, or compensating for the inequalities of nature;
the related principle of non-encroachment by one party on the natural prolongation of
the other, which is no more than the negative expression of the positive rule that the
coastal State enjoys sovereign rights over the continental shelf off its coasts to the full
extent authorized by international law in the relevant circumstances; the principle of
respect due to all such relevant circumstances; the principle that although all States are
equal before the law and are entitled to equal treatment, 'equity does not necessarily
imply equality' (I.C.J. Reports 1969, p. 49, para. 91), nor does it seek to make equal
what nature has made unequal; and the principle that there can be no question of
distributive justice." (I.C.J. Reports 1985, pp. 39-40, para. 46.)
Mr. President, it is obvious that the principle of non-encroachment, like other principles, is not
always easy to apply. Nonetheless, the process of application is informed by the jurisprudence of the
Court and of courts of arbitration.
In our submission there can be no doubt that to give recognition to Honduran claims within
the Gulf, and their logical corollary elsewhere, would involve a radical departure from existing
concepts of entitlement and from the principle of non-encroachment.
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To allow an occluded riparian in the situation of Honduras a corridor of intrusion involving
major encroachments on the natural prolongations of the other States would in our submission
involve the very type of spatial juxtaposition the Law of the Sea has so far been designed to avoid.
Indeed, any radicalism in the law of the sea which has occurred has been aimed in the opposite
direction. Thus in the Anglo-French Arbitration the Channel Islands were enclaved precisely in
order to avoid excessive encroachment on the areas of sea-bed appurtenant to the French Coast (see
Reports of the International Arbitral Awards, Vol. 18, paras. 180-201). The Honduran thesis,
which proposes both encroachment and penetration, would introduce precisely those elements of
geographical imbalance which are abhorred by general international law.
Moreover, there is a certain aspect of public order involved because, if existing levels of
expectation are abruptly changed, other States may feel justified in presenting new claims on the
supposition that the legal position has radically changed.
There are a number of geographically comparable cases which involve one or more occluded
riparians and a division of maritime areas in terms of territorial sea and/or continental shelf.
In this respect I would express my appreciation of the examples offered by the distinguished
Foreign Minister of El Salvador the other day (C 4/CR 91/39, pp. 68-69). But I would like on
behalf of Nicaragua, to refer to some other comparable cases.
(i) Sweden-Denmark-Norway (Skaggerak, Kattegat and North Sea)
One would be the situation involving Sweden, Denmark and Norway, that is the sounds
between the North Sea and the Baltic, the Skagerak, Kattegat and North Sea. Here the division of
territorial sea has proceeded without any increment being allowed to Sweden on the basis that she is
"cut off" from the North Sea. The example is highly relevant, since Sweden lies, like Honduras, at
the back of the gulf-like feature formed by the Skaggerak and Kattegat. For present purposes the
fact that there is a narrow sound leading into the Baltic makes no difference. The case is the more
striking in our submission in view of the fact that there are no non-Swedish islands located within the
Skaggerak.
(ii) Israel and Jordan (Gulf of Aqaba and Straits of Tiran) (which was
in fact one of the Foreign Minister's examples
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I then would like to reiterate one of the Foreign Minister's examples, the case of the Gulf of
Agaba and the Straits of Tiran. There is a certain comparability between the position of Israel and
Jordan within the Gulf of Aqaba and the situation of Honduras within the Gulf of Fonseca.
However, this may be reduced by the relative narrowness and depth of penetration of the Gulf of
Aqaba compared with Fonseca. At any rate, no claim has ever been made on behalf of either Israel
or Jordan to some compensatory increment of territorial seas and the controversy so far as there has
been any, has been confined exclusively to the question of rights of passage.
(iii) Singapore-Indonesia (Straights of Malacca and Singapore)
A third example involves Singapore and Indonesia in relation to the Straights of Malacca and
Singapore. Here there is a territorial sea boundary established by an agreement signed on
25 May 1973. The alignment is based upon equidistance and the outcome involves the enclavement
of Singapore.
(iv) Ethiopia-Yemen Arab Republic-Jibuti-Yemen P.D. Republic (Red Sea fand Straight of Bab el
Mandeb)
Fourth example involves the States of Ethiopia, the Yemen Arab Republic and Jibuti and
refers to the Red Sea and the Straight of Bab el Mandeb, the southern end of the Red Sea. Neither
Ethiopia nor the Yemen Arab Republic have any claims to territorial sea areas linking their
ordinarily appurtenant jurisdictional waters with waters outside the Red Sea in the southern sector of
the Straight of Bab el Mandeb.
(v) Chile-Argentina (Eastern Entrance to the Strait of Magellan)
Lastly, I refer to the situation in the Eastern Entrance of the Strait of Magellan, at the Boca
oriental of the Strait of Magellan. According to the recently concluded Tratado de Paz y Amistad
between Chile and Argentina, Chilean maritime jurisdiction in the vicinity of the eastern entrance of
the Strait of Magellan is confined by a boundary line joining the two termini of the land boundaries
of the two States on the northern and southern coastal sectors adjacent to the entrance: see
Article 10 of the Treaty (International Legal Materials, Vol. XXIV (1985), p. 11). No doubt this a
negotiated solution with a specialized background, but the outcome is significant nonetheless: a
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State controlling the entire littoral - Chile controls the entire littoral within the Boca oriental - was
deprived of any kind of "escape" beyond the maritime zones immediately adjacent to its coasts.
In the light of these comparable geographical situations, it would be inimical, in our
submission, to the stability of territorial settlements in other parts of the world, if the Chamber were
to appear to encourage this type of revisionist claim.
At the end of the day, Mr. President, the maritime claims of Honduras, as presented in these
proceedings, are geopolitical and revisionist. The documentary record shows that the claims are of
very recent origin. And Mr. Argüello gave some of the detail.
As between Nicaragua and Honduras, the question of maritime delimitation was definitively
settled by the Agreements of 1894 and 1900. It is Honduras which seeks to challenge the resulting
status quo.
The Government of Honduras has used three devices to give some colour of legality to its
revisionist enterprise.
1. There is the argument based upon an invented concept of a community of interests, which
has no basis in law, and counsel for Honduras, in seeking to provide legal content to the concept,
only succeeded in demonstrating its lack of legal content.
By way of example, counsel for Honduras cited various articles from the Convention of the
Law of the Sea of 1982. In particular, he referred to Article 123 on "co-operation of States
bordering enclosed or semi-enclosed seas". There is, of course, a question whether the Gulf is a
semi-enclosed sea. But in any event, the provision concerned refers exclusively to duties of
co-operation. There is no reference to a community of interests. Like all the alleged precedents
invoked by Honduras, there is no reference to spatial entitlements and delimitation.
2. The second method employed to give legitimacy to extravagant claims is the assertion that,
because the Gulf constitutes an historic bay, the waters are "internal waters" and this is assumed to
give a justification for the spatial claims formulated by Honduras.
No doubt, the waters are internal in the sense that for non-riparian States, their status is
equated to that of internal waters. In the days when the riparians only had a 3-mile territorial sea,
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presumably certain areas of the Gulf would have retained the status of high seas, but for the creation
of the special status of historic bay.
In any event, it cannot assist the case of Honduras to categorize the waters of the Gulf as
internal. In our submission, whether they are classified as internal waters, or territorial sea, or
continental shelf, the entitlements of Honduras must be based upon the relevant principles of general
international law. The category of internal waters cannot be employed to produce a territorial bonus
for Honduras.
On Wednesday afternoon, Professor Pierre-Marie Dupuy attempted to persuade the Chamber
that the status of an historic bay excludes the principles of general international law concerning
entitlement and delimitation.
No doubt the existence of historic title may be relevant in whole or in part to the determination
of the entitlements of coastal States, and this is recognized in the provisions of Article 15 of the Law
of the Sea Convention.
However, in the Gulf of Fonseca, the status of historic bay only has a spatial reference
vis-à-vis non-riparian States. As between the riparians, it has no spatial connotation.
The written pleadings of Honduras have relied upon the principles and rules of general
international law concerning delimitation of shelf areas. But this modus operandi cannot be
reconciled with claims now based upon historic title.
In fact, Honduras has made no attempt to prove the existence of historic title in any particular
location. The formula "historic title therefore internal waters, therefore equal rights for Honduras"
cannot help Honduras establish an entitlement in particular locations.
3. The third device used to legitimate Honduran claims is to refuse to recognize that the
Agreement of 1900 involved an exclusive delimitation governing the relations of Nicaragua and
Honduras. Following the maritime delimitation of 1900 and until these proceedings the Government
of Honduras chose not to question the definitive character of the alignment established by the Mixed
Commission.
And as late as 1982, the definitive character of the boundary was affirmed in an Honduran
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Note (Written Statement of the Republic of Nicaragua, Annex 9).
Mr. President, it is evident that the Law of the Sea has evolved since the Truman
Proclamation of 1945, and the development of new concepts in certain circumstances may generate
new disputes, as happened between Canada and the United States in the region of the Gulf of Maine.
However, there is no justification for the view that changes in the law may be used ipso facto
as an excuse to seek the rectification of well-established territorial settlements. As the Court said in
the Temple case, with reference to possible errors affecting boundary treaties:
"In general, when two countries establish a frontier between them, one of the
primary objects is to achieve stability and finality.
This is impossible if the line so established can, at any moment, and on the basis
of a continuously available process, be called in question, and its rectification claimed,
whenever any inaccuracy by reference to a clause in the parent treaty is discovered."
(I.C.J. Reports 1962, p. 34.)
In any case, the relevant principles of contemporary general international law do not provide a
justification for Honduran claims to maritime spatial entitlements which would penetrate the central
zone of the Gulf and reach out into the Pacific.
In the present case, the issue of Honduran entitlement and its consequences in the sphere of
delimitation within the Gulf involves problems of small-distance delimitation. And it can safely be
assumed that within narrow seas, the relatively new concepts of the Law of the Sea are not regarded
as capable of producing major geopolitical changes of the type proposed by Honduras.
The key to Honduran ambitions is Map C.5 in the Honduran Memorial and it was before the
Chamber the other day. This is a very candid piece of cartography. It provides a graphic guide to
the essence of the proposed community of interests. That essence consists of a claim to a corridor of
maritime territory, which we may call the "Meanguera corridor".
Mr. President, the legal interest of Nicaragua which may be affected if the Chamber gives
validity to such a claim consists of the normal entitlements of Nicaragua as a coastal State.
From the point of view of Nicaragua it is not delimitation but the preliminary issue of
entitlement to a corridor which is the real question. The alignment proposed on Map C.5 is simply a
possible margin of the corridor. It is the principle of the corridor and not its secondary features
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which will affect the legal interest of Nicaragua primarily.
Moreover, it is clear that the corridor has considerable dimension in the light of the references
by Honduras to a boundary with Nicaragua in the vicinity of Farallones (see C4/CR 90/4, p. 39; and
the Observations of the Republic of Honduras to the Written Statement of the Republic of
Nicaragua, pp. 7-8).
And so, Mr. President, the corridor would inevitably be given a certain level of apparent
legitimacy if the Chamber proceeds to a delimitation even if the delimitation as such would not, of
course, be opposable to Nicaragua. In any event, such a corridor would be incompatible with
general international law as understood and applied hitherto. And in our submission the corridor
would breach the following well-recognized principles of the Law of the Sea:
1. The first principle is that of the inherent rights of the coastal State in respect of maritime
territory. This concept, which is that of appurtenance, applies both to territorial sea and to
continental shelf.
2. Secondly, there is the principle non-encroachment by one party on the natural prolongation
of the other. This principle recognizes the direct relation of title and coastal geography.
3. Thirdly, there is a presumption that the equitable solution is an equal division of the areas
of overlap of the continental shelves of the States in dispute.
It is well-known that when the principle of equal division is applied in particular
circumstances the median line which reflects the principle may be subject to a process of
"correction", as it is sometimes called, or "adjustment" as it may be called on other occasions. But,
Mr. President, when this takes place the adjustment is always limited in scale, and the principle of
equal division remains the framework for the operation. In the case of narrow seas the principles are
equally applicable with the important qualification that departures from the principle of equal
division and departures from the principle of non-encroachment are essentially incompatible with the
circumstances of small-distance delimitation.
By way of conclusion I will present what are from Nicaragua's point of view the significant
elements in the case and I shall do this inevitably in the context of Article 62 of the Statute.
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The central question for Nicaragua is the package of claims described by Honduras as a
community of interests. A major aspect of this apparently philanthropic concept is an ambitious
claim of recent manufacture to spatial entitlements within and outside the Gulf.
The claim illustrated by map C.5 appears first of all as a part of political negotiations in the
1970s.
The claim is impossible to justify in terms of the principles of general international law and
consequently the concept of a community of interests has been employed as a substitute basis of
entitlement.
In terms of the Law of the Sea the normal order of the issues has been inverted by Honduras
and thus delimitation appears, as it were, from nowhere. Entitlement is not explained on the basis of
law, we are suddenly asked for a delimitation.
The outcome has placed Nicaragua in an unenviable position. The Special Agreement
excludes one of the two riparians in the region of the Gulf from the process of adjudication. The
Special Agreement, no doubt for political reasons, has permitted maritime questions of an
unspecified character to be placed before the Chamber and has thus given a certain spurious and
entirely provisional legitimacy to the these new and extravagant maritime claims. After all, if the
Tribunal is asked to deal with claims, they must have some prima facie normality.
In the absence of other options, Nicaragua remains in a procedural situation full of difficulty.
Nicaragua has been permitted the role of non-party intervention in accordance with the Statute
of the Court. The purpose of this, the Chamber recognizes, is the protection of Nicaragua's legal
interests.
The question, of course, is what practical form such protection may take. Nicaragua has
offered various indications and the most important of these, in our submission, is the consideration of
judicial propriety.
In the submission of Nicaragua, even if the Monetary Gold principle is not applicable,
significant factors of propriety remain operative.
The principal authority for this view of the general principles of procedural law is the decision
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in the Libya/Malta case. There the Court applied a policy of maximum restraint in favour of the
interests of the third State. It is the position of the Nicaraguan Government in this case that a similar
policy of judicial restraint would be appropriate in respect of the wholly unreasonable claim of
Honduras to an entitlement which is conspicuously incompatible with the legal entitlements of
Nicaragua in the region of the Gulf, and which is also incompatible with the territorial status quo
established by the Agreement between Nicaragua and Honduras in 1900.
And quite apart from judicial restraint, which involves a type of admissibiity, the claim to the
Meanguera corridor has, in any event, no basis in law.
Consequently, were the Chamber to see fit to give any level of legitimacy to such revisionist
claims, this would be likely to generate threats to the stability of the territorial status quo in other
regions of the world.
Normally, such a risk would be purely academic but, in the present case, the tension between
the competence of the Chamber and the normal application of the law arises from the extensive
provisions of the Special Agreement and also the procedural disadvantages effectively imposed upon
Nicaragua.
Mr. President, I have completed my speech. I am very grateful for the courtesy and patience
the Chamber has shown. Thank you.
The PRESIDENT: I thank Professor Brownlie and the sitting is adjourned until Monday at
10 o'clock.
The Chamber rose at 1 p.m.
__________
Audience publique de la Chambre tenue le vendredi 7 juin 1991, à 10 heures, au Palais de la Paix, sous la présidence de M. Sette-Camara, président de la Chambre