Audience publique de la Chambre tenue le lundi 10 juin 1991, à 15 heures, au Palais de la Paix, sous la présidence de M. Sette-Camara, président de la Chambre

C 4/CR 91/45
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
YEAR 1991
Public sitting of the Chamber
held on Monday 10 June 1991, at 3 p.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 lundi 10 juin 1991, à 15 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))

COMPTE RENDU

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

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

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,
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,
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, C.B.E., Q.C., F.B.A. Whewell Professor of International Law,
University of Cambridge, Fellow of Queens' College,
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
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, C.B.E., Q.C., F.B.A., professeur de droit international à l'Université
de Cambridge, Chaire Whewell, Fellow de Queens' College,
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
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.
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.
The PRESIDENT: Please be seated. The sitting is open. We start today the hearings on the
legal situation of the waters outside the Gulf of Fonseca and I give the floor to Professor Bowett.
Mr. BOWETT: Thank you, Mr. President. Mr. President, Members of the Court, it is my
task to address the question of delimitation outside the Gulf. There is, of course, a preliminary
question which is whether this matter falls within the Court's competence. This is a question which
has already been explored in detail, so I can content myself with a few general observations.
1. The Preliminary Question of the Court's competence
The terms of the Special Agreement may not be ideal. The phrase "to determine the legal
situation in ... the maritime areas" lacks the precision that we might prefer. But the reason for this
lack of precision is absolutely clear. Given El Salvador's commitment to its "condominium thesis",
El Salvador could not agree to a Special Agreement which referred expressly to a delimitation of the
waters of the Gulf: and so the word "delimitation" had to be avoided, to meet the particular needs of
El Salvador.
You can understand why Honduras felt able to accept this vagueness. The same vague phrase
was used in Article 18 of the 1980 Peace Treaty. It was used there to define the terms of reference
of the Mixed Frontier Commission — and the use of the word "delimitation" was avoided in the
Peace Treaty for exactly the same reason, namely to avoid embarrassing El Salvador.
But, the Parties had been in dispute over the Honduran claim to a delimitation in the Pacific
since 1978 (CMH, Vol. II, p. 166); under the Peace Treaty, in Article 3, they had agreed to settle
"any difference of whatever kind, (that) may arise in the future between them"; and in 1985, both
within and outside the Mixed Commission, the Parties had discussed the Honduran claims in the
Pacific. It was clear, to both Parties, that there was a dispute over delimitation, both inside and
outside the Gulf.
Now you can see that if, on the basis of this same vague phrase, the Parties had discussed the
Honduran claims to a maritime area in the Pacific in the past, Honduras felt entitled to assume that
the same phrase, used in the Special Agreement, would confer on the Court power to deal with those
same claims. After all, if the phrase had not excluded the delimitation dispute from the competence
of the Mixed Commission, why should it exclude the dispute from the competence of this Court? It
is a simple matter of consistency. And for El Salvador now to pretend that the phrase excludes any
question of delimitation is a serious breach of good faith. It is an argument designed to destroy the
clear intent of the Parties and their commitment to resolve all their disputes, a commitment contained
in Article 3 of the Peace Treaty. It is an argument which, in the submission of Honduras,
El Salvador is precluded from making.
I turn, therefore, to the substance of the matter: the Honduran claim to an equitable, maritime
area outside the Gulf.
2. The Honduran claim
(i) The Basis of Title
It is perhaps useful to examine this basis for the Honduran claim, a claim to title, in a
maritime area outside the Gulf.
Consistently with the jurisprudence, Honduras asserts title on the basis of its coasts. The
coasts in question are these — these coasts at the back of the Gulf, a coast over 40 miles in length,
over twice as long as that of El Salvador within the Gulf.
So the initial question is this. Can this coast of Honduras generate title to a maritime area
outside the Gulf? To answer this question I want first to look at the Honduran positive case — and
the reasons why Honduras argues that this coast does generate title. Then I will turn to the
counter-arguments of El Salvador.
(ii) The Honduran Positive Case
This is composed of several elements.
First, historically, Honduras has long been described as a coastal State in relation to the
Pacific. Honduran Constitutions have so described Honduras since 1839, and, in effect, so does the
1987 Constitution of its neighbour, Nicaragua (RH, pp. 288, 294). Indeed, Article 1 of the 1884
San Miguel Boundary Convention signed between Honduras and El Salvador itself recognized that
the boundary between the two States "shall begin in the Pacific" (RH, p. 288). Of course, one can
anticipate a reply by El Salvador which says "Ah, but that was in the days when the Gulf of Fonseca
was regarded as the Pacific." But, Mr. President, if, historically, Honduras was referred to as a
coastal State in relation to the Gulf — as part of the Pacific — by what process of law did Honduras
become enclaved, and lose that status? When, as a matter of accepted international practice, did that
enclaving occur?
It had certainly not taken place when Honduras, by Congressional Decrees in 1950 and 1951,
proclaimed continental shelf rights in the Pacific Ocean (CMH, p. 165; MH, Ann. II, pp. 25-32).
And we have no record of any protest against that claim by any State.
Now this morning Mr. Lauterpacht suggested that the Honduran claim in 1950 was confined
to the outer Gulf. Imagine a claim to a continental shelf limited to the outer Gulf!
Why would Honduras make so limited a claim when all the Latin American States at that
point in time were claiming epi-continental seas and even continental shelves up to 200 miles. And it
is useful in assessing the force of Mr. Lauterpacht's argument to look at the actual text of the
Honduran legislation. The Decree of 7 March 1950, which you have in the Annexes, in Article 4
says this
"The limits of Honduras and its territorial division shall be determined by law.
The submarine platform or continental and insular shelf and the waters which cover it
in both the Atlantic and Pacific Oceans."
Now, I stress the word oceans. Whatever else you may conjure with in terms of whether the
outer Gulf was regarded as the Pacific, it was surely never regarded as an ocean. In the 1982
Constitution of Honduras, in Article 11, paragraph 5, which deals with the continental shelf claim, it
says "so far as the Pacific Ocean is concerned the foregoing measurements shall be taken from the
closing line across the mouth of the Gulf of Fonseca outwards to the open sea". And again,
somewhat earlier, in a law concerning the natural resources of the sea of 1980, the Honduran
legislature proclaimed that Honduras was to have a 200-mile economic zone from the baselines
which it enjoys. Now, a proclamation of a 200-mile economic zone which, under the terms of the
1980 law, is a claim in relation to the two oceans, could not possibly be accommodated within the
outer Gulf. You cannot get 200 miles in the outer Gulf, it must be a claim to the Pacific Ocean
beyond. So, it is quite clear that in the terms of the Honduran legislation, legislation which has not
been protested, these claims have never been limited to the outer Gulf and could not reasonably have
been construed to be so limited by other States.
But let us set the text aside. Let us assume that, despite the text, Mr. Lauterpacht's suggestion
has some merit and that because these claims were, as El Salvador assumed, limited to the outer
Gulf, therefore no protest was called for. Let us examine that assumption. Here we have an area of
the outer Gulf, claimed by Nicaragua apparently as territorial waters. So we are to envisage a claim
by Honduras to these same waters as the continental shelf of Honduras, in an area which Nicaragua
says is its territorial waters. And yet no protest is made. Or in relation to El Salvador, this area of
the outer Gulf is, in the view of El Salvador, not only a condominium but a condominium confined to
the two States, El Salvador and Nicaragua. It is an area in which on their thesis Honduras has no
rights whatsoever. Yet, we have Honduras making a claim to a continental shelf which El Salvador
says, ah, yes, but that is confined to the outer Gulf, the very area in which El Salvador says
Honduras has no rights whatever. And they make no protest.
Mr. President, it just is not credible to ask the Court to believe that El Salvador, or any other
State, believes that the claims by Honduras to a continental shelf, from 1950 onwards, were confined
to the so-called outer Gulf. It makes no kind of sense, either in terms of the text used, or in terms of
the arguments now advanced, either by El Salvador or by Nicaragua. There was no protest. And it
is not until 1974, nearly 25 years later, that there was any hint that El Salvador was prepared to
dispute the Honduran claim to a maritime area in the Pacific. And even that hint of opposition came,
not in a formal protest, but in a statement by Mr. Pohl, addressing the Second Committee of
UNCLOS III, the Third Conference on the Law of the Sea (CM, p. 166).
The Counter-Memorial of El Salvador (para. 8.39) described the Honduran claim as a mere
"paper assertion". There are two replies to that. The first is that, by law, Honduras is not required
to make any claim at all: its shelf rights attach ab initio and de jure, without the need for any
express proclamation. And the second reply is that the Honduran claim, once it was contested in
1974, became the subject of real controversy, within the Mixed Commission. So it was certainly no
mere "paper assertion".
I turn now to the second element. As a matter of law, there is no reason why a coast at the
back of a bay, or gulf, or even a concave coast should not be entitled to a natural prolongation out
into the open seas. If such a natural prolongation is consistent with an equitable result, then the
coastal State's title merits legal recognition. And that entitlement is not barred by the fact that some
other State's coast might, as a matter of absolute proximity, be closer to the maritime areas in
question.
Think of the North Sea Continental Shelf cases. Now, Mr. President, in the folder which you
all have before you, I have reproduced as Figure 2, the illustration which is found in the Court's
Judgment of 1969. There on Figure 2 you see the concavity, and the equitable result was achieved
by recognizing the entitlement of Germany, based on the German coasts at the back of the concavity,
to shelf areas out to the middle of the North Sea, indeed, up to the median line with the United
Kingdom.
The fact that the Dutch and Danish coasts were nearer, was irrelevant. Or think of the United
Kingdom/France Channel Arbitration in 1977 and, as Figure 3 in your folder, you have the
illustration of the line that emerged from that arbitration. The Award accorded title to France, title
to shelf areas to the north and north-west of the Channel Islands. The basis of that legal title lay in
the French coast at the back of Granville Bay, so that the natural prolongation of the French coast
was able to "leap-frog", as it were, over the Channel Islands and find its natural prolongation in
areas which were, beyond any question, much closer to English territory, to the Channel Islands.
The fact that the Channel Islands were nearer to the disputed area was irrelevant.
Think of the Gulf of Maine case — and again, I have placed in your folder the illustration
used at page 726 of the Honduran Memorial, an illustration presented by the United States to this
Court in that case. Now at Figure 4 you will see how the United States conceived of the argument
that the long American coast at the back of the Gulf had a natural prolongation extending out into
the sea areas beyond the Gulf. It had a legal entitlement to maritime areas in front of that long coast
and even though, in terms of proximity, the Canadian coast of Nova Scotia was nearer. If you
examine the Court's Judgment you will see that it was the length of the American coast at the back of
the Gulf that determined the course of the boundary in both the second and the third sectors of the
delimitation line decided upon by the Court. Now that can only mean that the coast at the back of
the Gulf generated legal title to these areas lying outside the Gulf.
Certainly in the Gulf of Fonseca the geographical configuration is more extreme. At its mouth
the territories of Nicaragua and El Salvador are closer together than were Cape Cod and Novia
Scotia in the Gulf of Maine case, or the territories of Denmark and Holland in the North Sea cases.
But proximity of coast does not, per se, exclude the possibility that the maritime area may, in law
and in equity, attach to some other, more distant coast. And there is no doubt that the Honduran
coast, within the Gulf, does face directly on to the Pacific. But it does so through a restricted
opening: the narrow mouth of the Gulf certainly operates so as to limit the area of the Honduran
entitlement. But what the narrow Gulf entrance cannot do is to destroy that entitlement.
(iii) El Salvador's negative case
Now it may be useful at this juncture to turn to El Salvador's negative case, to the arguments
used by El Salvador in seeking to deny to Honduras any entitlement to a maritime area in the Pacific.
The crux of El Salvador's case lies in the assertion that the mouth of the Gulf is only 19 miles wide;
that in 1950 El Salvador claimed a 200-mile territorial sea; and that the closing line of the Gulf is
therefore shared by Nicaragua and El Salvador exclusively, with a boundary at the mid-point; and
that, therefore, Honduras is entirely blocked off from any maritime claim in the Pacific, beyond this
closing-line.
I shall have to deal with this argument in some detail. But I ought, first, to comment on a
different thesis which first emerged in El Salvador's Counter Memorial (para. 8.9). This is what I
might call the "island screen" thesis, which argues that the islands of Conchaguita, Meanguera and
Meanguerita, which belong to El Salvador, and the island of Farallones, which belongs to
Nicaragua, operate as a screen. It is suggested that this screen of islands blocks off any Honduran
maritime claims to the west of these islands, seawards of these islands.
I cannot treat this as a very serious argument, and I can deal with it fairly briefly by making a
few simple points. First, islands do not necessarily block the natural prolongation of mainland
coasts. The Channel Islands did not block the French claims to the north of those islands. And, to
give one further example, I would refer the Court to the 1978 Agreement between Australia and
Papua New Guinea, an Agreement which you have illustrated in Figure 5 in your folder. Now you
will see that the Australian islands of Aubusi, Boigu, Dauan, Kaumag and Saibai, lying off the coast
of Papua New Guinea, were completely enclaved in a 3-mile territorial sea. They did not "screen" or
block off the natural prolongation of the Papuan coast, which continued out to what is a modified
median line. And so it is difficult to see why the small islands in the Gulf of Fonseca, whoever they
belong to, should screen and block off the Honduran entitlement based upon 40 miles of coast.
Second, presumably El Salvador does not dispute that, under its own condominium thesis, and
assuming the whole of the Gulf to be under a condominium, Honduras has rights in the waters to the
west of these islands. So if the so-called "screen" — this screen of islands — is not effective to
block off Honduran rights in the waters of the Gulf lying to the west, how is it that they become
effective as a screen for the purpose of blocking off Honduran claims even further west in the
Pacific?
The Reply of El Salvador indicates a very clear awareness of this difficulty. And so the
suggestion made there (paras. 6.105-6.112) is that the area of Gulf, subject to a condominium, ends
at a line drawn from Punta Chiquirin to Punta del Rosario — what El Salvador calls the "inner"
Gulf. It would, therefore, follow that the area of the "outer" Gulf is capable of national
appropriation, and that it is so appropriated by Nicaragua and El Salvador, and that, accordingly,
Honduras has no rights in the "outer' Gulf. The island-screen becomes a complete barrier.
The argument to justify the distinction between the "inner" and "outer" Gulf was given by the
Foreign Minister of El Salvador last week.
But he admitted that the 1917 Judgment made no such distinction and as
Professor Pierre-Marie Dupuy explained last week, it would have been impossible for the Court in
1917 to have made that distinction because in the so-called inner Gulf, if you allow to each Party a
3-mile exclusive zone, there is virtually nothing left in the inner Gulf of waters which could be
subject to a condominium. So, clearly, what the Court was talking about was the whole Gulf as a
condominium, and a condominium between all three coastal States.
What the Minister relied on was El Salvador's own statement, or statement of claim to the
Central American Court, and this statement referred to a line from Punta Chiquirin to Punta del
Rosario. And it is true that the Honduran note of protest of 30 September 1916 set out at length the
exact terms of the claim of El Salvador, including the reference to this line. But to suggest that
Honduras, in protesting, somehow adopted the El Salvadorian definition of the Gulf is really quite
wrong. Honduras was concerned to oppose the entire condominium thesis, whatever its geographical
extent.
The fact is that in all the literature the Gulf, as a historic bay, is deemed to comprise the whole
bay, the whole Gulf. Throughout the long discussions in the Mixed Commission both Parties refer
to the Gulf as one area: there was never any mention by El Salvador of two Gulf's and two areas of
condominium, one in and one out, of which only the first, the inner Gulf, concerned Honduras. And
indeed, the same is true of the written pleadings of El Salvador in this case, right up to the stage of
the Reply when this new thesis of inner and outer Gulfs was concocted.
In brief Mr. President, the argument is simply litigation tactics. It has no relation whatever to
El Salvador's actual practice. Indeed, prior to the Reply, all of El Salvador's written pleadings
treated the condominium as applying to the entire Gulf — outside the 3 mile limit. There was no
"inner" and "outer" Gulf. And if the "outer" Gulf is not subject to the condominium but capable of
appropriation by Nicaragua and El Salvador, why place the boundary at the mid-point on the
closing-line? Why not carry the boundary through into the outer Gulf?
Mr. President, you will note that El Salvador produces not a single map to show that it has
ever made any such claim to an "inner" Gulf as opposed to an "outer" Gulf. My suggestion to you is
that you should dismiss this fiction of an "inner" and "outer" Gulf and treat the closing-line across
the entrance to the Gulf as the only realistic boundary between the Gulf, whatever its status, and the
Pacific beyond.
Now, third and last, it is quite clear from El Salvador's written pleadings that it does not
regard the maritime areas outside the Gulf as the natural prolongation of these islands. On the
contrary, the claim is, apparently, that El Salvador's maritime areas in the Pacific depends entirely
on the mainland coast of El Salvador outside the Gulf, the mainland coast. Thus it is the mainland
coast of El Salvador, or rather its natural prolongation, which blocks off the Honduran claim.
El Salvador's Reply refers to the "actual coast on the Pacific Ocean" (para. 6.110). The "island
screen" argument is wholly irrelevant.
So we can now turn to El Salvador's main thesis and this raises a whole series of questions.
First, was the 1950 claim to a 200-mile territorial sea valid? I suggest not. A claim to a
200-mile territorial sea was invalid in 1950, and it is invalid today. In any event, Article 7 of the
1950 Constitution of El Salvador, which is said to be the basis of the claim, said nothing about
boundaries. Moreover, it provided expressly that the Gulf of Fonseca is a historic bay, subject to a
special régime, and it said not a word about boundaries with either Honduras or Nicaragua. And
certainly there is no mention of the territorial sea of El Salvador extending to the mid-point of the
closing line. So when was this specific claim made? The Memorial of El Salvador (para. 14.1) tells
us that this claim was "restated in the Constitution of 13 December 1983, Article 84 ...". But look at
that Article (Diario Oficial, Tomo No. 281). It says nothing whatever about a claim to the
mid-point of the closing-line. It says, with maximum obscurity, that the limits of El Salvador are,
and I use my own free translation:
"To the east, and for the reaminder, with the Republics of Honduras and
Nicaragua in the waters of the Gulf of Fonseca.
And, to the south, with the Pacific Ocean."
So, I have to conclude that, as yet, El Salvador has provided us with no evidence of a formal claim
to this boundary with Nicaragua, at the mid-point of the closing-line. That claim has never in fact
been made.
Now it is in the light of this fact that some of the evidence of the practice of the Parties begins
to make sense. We can now see why El Salvador made no protest to the claims by Honduras to a
continental shelf in the Pacific in 1950 and 1951. There was no basis for any such protest:
El Salvador had made no claim which was inconsistent with the Honduran claim. We can now see
why Honduran vessels, proceeding out into the Pacific — and I mean in the area outside the
closing-line — had never been subjected to the régime of coastal State control as if they were in
innocent passage. They had never been treated by El Salvador as transitting through El Salvador's
territorial waters by virtue of a right of innocent passage. The reason is again obvious; El Salvador
had made no such claim. The truth is there was no claim.
The first intimation Honduras had of such a claim came only in 1974, with Mr. Pohl's
statement in UNCLOS III. It is in the light of this fact that we must turn, now, to examine the
validity of El Salvador's claim.
3. The Question of the Validity of El Salvador's Claim
(i) The issue of timing: could a claim in 1974 divest Honduras of
existing rights?
If, as we have seen, Honduras claimed shelf rights in the Pacific Ocean in 1950, without
protest, then we are entitled to assume that such rights vested in 1950. So the question then becomes
"How is it possible for Honduras to be divested of those rights, by an informal claim made during a
United Nations Conference nearly 25 years later"? Now, this is not simply an estoppel point. It is a
matter of legal principle. For prior rights, publicly-asserted and acquiesced in by the world
community, become vested rights. A later, and inconsistent claim by El Salvador, even if in all other
respects valid, could not operate to divest Honduras of its vested rights.
(ii) The issue of Estoppel
I turn, now, to a true issue of estoppel. There are, in fact, two elements of El Salvador's own
conduct that in my submission operate as an estoppel against El Salvador.
The first is El Salvador's own "condominium" thesis. The closing-line across the mouth of the
Gulf is part of the waters of the Gulf. If, therefore, on El Salvador's own argument, these waters are
under a condominium, and assuming the Court rejects the argument that the condominium in the
"outer" Gulf is restricted to El Salvador and Nicaragua, then it follows that Honduras must have
co-riparian rights in those waters. These are the waters across the entrance to the Gulf. It equally
follows that two co-riparians, El Salvador and Nicaragua, cannot annex those waters and transform
them into their own territorial seas, dividing them equally between them as "sovereign" waters to the
exclusion of the third co-riparian, Honduras. And I have already explained why it is not possible for
El Salvador to avoid this contradiction by confining the condominium thesis to the waters of the
so-called "inner" Gulf. Thus my conclusion is that, on El Salvador's own "condominium" thesis,
El Salvador is estopped from contesting that Honduras does have rights in the waters across the
closing-line of the Gulf.
The second element of the estoppel is the proposal made by El Salvador to the Mixed
Commission in 1985, and that was illustrated on a map prepared by El Salvador, a reproduction of
which is now in your folder as Figure 6, and which I would ask the Court to examine.
This is the El Salvadorian proposal. You will note that the red zone, the proposed zone of
co-operation, extends for 200 miles from the closing-line across the mouth of the Gulf. This is
significant. First, it illustrates the point I have just made, namely that it was this closing line which,
for El Salvador, divided the Gulf from the Pacific: there was no "inner" and "outer" Gulf.
Second, the closing-line is used as a baseline. The 200-mile zone projects from the
closing-line. This is a point to which I shall return.
And, third — and this is a point of immediate relevance — it is a clear recognition that
Honduras does have rights in the Pacific. It is inconceivable that El Salvador should have proposed
a joint zone, connoting equal rights, except on the basis that Honduras had rights. Otherwise, we are
being asked to believe that, even though El Salvador considered Honduras to have no legal rights in
this maritime area, it was prepared as an act of kindness, as a gesture of magnanimity, to confer
equal rights. Is that really credible? I suggest, Mr. President, that it is simply not credible. This
proposal clearly demonstrates a recognition by El Salvador that Honduras does have rights in the
Pacific. And, on that basis, El Salvador is now estopped from alleging the contrary. And let me add
I do not rely solely on this Map. The propositions I have made, on the basis of the Map, are fully
confirmed by the records of the meeting of the Mixed Commission on 23 and 24 May 1985. You
will also find the text of the El Salvadorian proposal annexed to the letter from President Duarte of
El Salvador, addressed to the Honduran President, on 26 September 1985. That proposal deserves
careful reading. Not because Honduras seeks to bind El Salvador to that specific proposal, but
because of the way that the proposal reveals El Salvador's own thinking at the time about the
existence of Honduran rights.
(iii) The issue of the validity of El Salvador's assumption that
it is entitled to delimit the closing-line with Nicaragua on
the basis of equidistance
It must be clear that El Salvador's claim to a territorial sea, up to the mid-point on the closing
line rests on two assumptions. The first is that delimitation of the territorial sea must be on the basis
of equidistance. And the second is that El Salvador's right to an equidistance delimitation with
Nicaragua overrides, indeed extinguishes, the rights of Honduras in the waters at the mouth of the
Gulf. In essence, what El Salvador says is this: "The distance across the mouth is only 19 miles, we
have a right to a 12-mile territorial sea, therefore we are entitled to a territorial sea up to the
mid-point of the closing line."
I would ask the Court to examine these assumptions. Let me first make the point that there is
nothing axiomatic or inevitable about a median or equidistance boundary between opposite coasts
less than 24 miles apart. Article 15 of the 1982 Convention on the Law of the Sea certainly accepts
that the median line is the normal solution. But it expressly provides that this does not apply "where
it is necessary by reason of historic title or other special circumstances" to delimit in some other
way.
What is a historic bay, if it is not an example of historic title? Indeed, El Salvador has
recognized that the Gulf is an exceptional situation. I have already referred to El Salvador's claim to
territorial waters, in Article 7 of the 1950 Constitution of El Salvador. But that Article provided
expressly that: "The Gulf of Fonseca is a historic bay subject to a special régime (U.N. Legislative
Series, ST/LEG/SER.B/6, p. 14)". Why, therefore, does El Salvador now insist that the normal rule
applies?
And, of course, El Salvador's claim to delimit across the mouth of the Gulf with Nicaragua
exclusively simply assumes that Honduras has no rights — which is the very question at issue. But
if Honduras has rights in these waters, then the claim of El Salvador necessarily fails, for
El Salvador cannot claim an area — or delimit an area — belonging to another State.
There can certainly be no basis for suggesting that the new rule for a 12-mile territorial sea
has extinguished pre-existing Honduran rights. In its Memorial (p. 137), Honduras pointed to the
way in which new delimitation provisions in the United Nations Conventions on the Law of the Sea
expressly safeguarded pre-existing rights. We cited Article 7, paragraph 6, on straight baselines,
providing that one State may not draw straight baselines where the effect of such baselines would be
to cut off the territorial sea of another State from the high seas or an exclusive economic zone. And
we cited Article 47, paragraph 5, dealing with archipelagic baselines, which is to the same effect.
What we had suggested was that these rules indicate the general policy in the law, not to allow new
claims to be made on the basis of the new rules, to the prejudice of existing rights.
Not so, replies El Salvador (RES, para. 6.106): there is no such general policy. Well, the
Court will be the judge of that. But I venture to suggest that there is a general policy of the law to
protect pre-existing rights. The doctrine of "acquired rights' is no heresy, but rather a basic precept
in many areas of international law.
In the final analysis we face a claim by El Salvador of startling audacity, and really quite alien
to the policy of the law. For centuries Honduras has been regarded as a Pacific coastal State. In
1950 it proclaimed its rights to a continental shelf in the Pacific — without protest from anybody.
And, throughout the decades of the 1950s, the 1960s and the 1970s, the law has been gradually
moving towards an increasing recognition and enlargement of coastal States' rights. But some 25
years after the Honduran claim, in 1974 to be exact, El Salvador comes along and suggests that, by
virtue of the new 12-mile limit for territorial waters, it can assert a delimitation across the mouth of
the Gulf, based upon the notion of absolute proximity, and deprive Honduras of its rights. And not
only the pre-existing rights in the shelf, but also all the new rights that attach to Honduras under the
doctrine of the exclusive economic zone. I suggested that it was a claim of startling audacity. On
reflection, I think that is perhaps too polite a term.
My argument must proceed, therefore, on the basis that Honduras has not been divested of its
entitlement. Its entitlement remains, and the question to which I now turn is that of the method of
establishing the area of that entitlement.
Mr. President, I now turn to a different part of my argument. If you wish to have a tea-break
now this would be an opportune time.
The PRESIDENT: Thank you, Professor Bowett. We shall now take a break of 15 minutes.
The Chamber adjourned from 16.00 to 16.25 p.m.
___________
The PRESIDENT: Please be seated. The sitting is resumed. I give the floor again to
Professor Bowett.
Mr. BOWETT: Thank you Sir.
4. The Method appropriate to establishing the area, or limits,
of the Honduran entitlement
(i) Honduras's right to an equitable share of the closing-line
The Honduran position can be simply stated. The waters of the Gulf are historic internal
waters. The fact that, within the Gulf, each riparian State enjoyed an exclusive zone of 3 miles off
its coasts does not change that. All it means is that, whilst the waters of the Gulf are generally
subject to a community of interests (not to be confused with a condominium) this was not true of the
3-mile belt. But the waters of the Gulf remain internal waters, and have been so regarded at least
for most of this century.
From this it follows that, for Honduras, the closing-line across the line of the Gulf is a
baseline. And the territorial seas, continental shelves and economic zones of the riparian States
extend from that baseline.
Now the Court will be aware that El Salvador takes a different position. This is, apparently,
that the closing-line of the Gulf is just that: it is not a baseline. I want to examine the reasoning
behind this rather extraordinary view, and perhaps suggest to you what motives lie behind it.
If this were a normal juridical bay, belonging to one State, then, given that the closing-line is
less than 24 miles, it would, without any doubt, be the baseline. And, of course, the function of the
baseline, closing a bay, is to represent by a straight line the coasts within that bay. The closing-line,
as a baseline, is a form of "coastal front", forming a notional coast just like the low-water mark
along a normal coast. Now we have to ask ourselves "Why should it be any different with a historic
bay?" It is generally supposed that with a historic bay your closing-line can be even longer than
24 miles. But it remains a true baseline, representing the coasts inside the bay.
There is no doubt that El Salvador itself took that view in 1985. Its proposal to the Mixed
Commission, which you have illustrated at Figure 6 in your dossier, and which we have just
examined, clearly demonstrates that. But now we are told that is not so: it is just a "closing-line".
As I have already suggested, I think it might be useful if the Court were to look at the text of the
proposal, as annexed to President Duarte's letter of 26 September 1985 (RH, Ann. VII.1). He there
says:
"El Salvador, dans le cadre de sa souveraineté exclusive, sur les eaux territoriales
de l'embouchure ou l'entrée du Golfe ..."
There cannot be much doubt about how President Duarte saw the territorial waters of El Salvador.
They began on the closing-line. In other words, he saw the closing-line as a baseline. Now
obviously, in 1985, El Salvador had not thought of this new argument whereby you can have a
closing-line which is not a baseline.
I confess I have difficulty in identifying this juridical animal, this "closing-line" which is not a
baseline. What purpose does it serve, if not a baseline? It cannot be simply a closing-line for the
purposes of the semi-circle test one uses to establish a juridical bay. For this is not a juridical bay,
and one has no need of the semi-circle test. And if its purpose is simply to divide the historic or
internal waters from territorial waters, then it is, in effect, a baseline. So, if not a baseline, what is
it?
I am afraid I cannot answer that, Mr. President. You will have to look to El Salvador for
help. But what I can do is to offer some thoughts on why El Salvador has adopted this extraordinary
argument.
I can do this best by using the Illustration VIII.2 from the Honduran Reply — it is Figure 7 in
your dossier. Now if you look at Figure 7, you can see that El Salvador's 12-mile territorial sea, on
their present view, projects from El Salvador's coast outside the Gulf. Of course, it still gets
El Salvador out to the mid-point on the closing-line and effectively locks Honduras inside the Gulf.
Now the alternative of using the closing-line as a baseline, and projecting the territorial sea out
from that baseline, is far more dangerous for El Salvador. Because El Salvador realizes that the
closing-line, as a baseline, represents all the coasts inside the Gulf. And El Salvador equally realizes
that, of these coasts inside the Gulf, Honduras has the longest: longer than that of either Nicaragua
or of El Salvador within the Gulf. So, if the closing-line, as a baseline, represents those coasts inside
the Gulf it is impossible to deny to Honduras part of that baseline. And that is why El Salvador has
dropped its 1985 proposal and now wishes to reject the idea that the closing-line is a baseline.
As I have suggested, that is not possible. The moment you accept that the closing-line is a
true baseline, and that its purpose is to represent the coasts inside the Gulf, it follows inevitably,
that Honduras, with the longest coast, has a legal right to the longest section of that baseline.
Because the basis of entitlement to a maritime zone in the Pacific is the Honduran coast. I
want to make that point abundantly clear. We do not say, as El Salvador suggests, that the
Honduran claim derives from the concept of "community interests" as such. It is rather because of
this "community of interests" in the Gulf, that the rights of Honduras to an equitable share of the
closing line must be recognized. And it is that equitable share of the closing line that generates the
maritime claim, precisely because the share of the closing line represents the Honduran coast within
the Gulf.
On Tuesday of last week we heard a new argument by the distinguished Foreign Minister of
El Salvador. He ridiculed the Honduran argument that the closing line of the Gulf represents, in
part, the coast of Honduras inside the Gulf, and that Honduras is therefore entitled to a maritime
zone beyond the closing-line. You will recall that he offered comparisons with the Gulf of Aqaba,
the Persian Gulf and the Gulf of Finland — suggesting that it would be ludicrous for States inside
those Gulfs to claim a maritime zone outside the closing line of those Gulfs.
Now, as I said this morning, the comparison he offers, just as the comparisons that Nicaragua
offered, is, of course, no comparison at all. I do not believe any of the Gulfs he mentioned is a
historic bay or Gulf. I do not believe any of them has been treated as internal waters, with a closing
line across the entrance. So his argument is without substance, and the Honduran contention
remains correct: the closing line across the Gulf of Fonseca is a baseline, and it does represent all of
the coasts inside the Gulf, including that of Honduras.
So I turn to the next question. Where, precisely, is the section of the baseline that, in equity,
should appertain to Honduras?
And I would ask the Court, at this point, to turn to Figure 1 in your folder, where you have a
map of the Gulf itself. Let me begin by emphasizing that we have no wish to encroach upon any
section of the baseline which may reasonably be claimed by Nicaragua. Accordingly, we must
exclude from our consideration the whole of the line between Punta Cosiguina on the Nicaraguan
coast and the mid-point, X, the mid-point on the closing line. For Nicaragua has no reasonable claim
to any part west of point X, and has in fact made no such claim. I do not say that the whole line east
of point X necessarily belongs to Nicaragua. I simply say that its division is a matter of some future
delimitation between Honduras and Nicaragua.
As to the western half, from Punta Amapala to point X, this is clearly relevant to this
delimitation and my submission is that an equitable result is achieved by attributing 3 miles to
El Salvador — up to point C — and the remaining 6.5 miles to Honduras. This is, in my view,
justifiable for two reasons. The first is that the traditional, exclusive zone claimed by El Salvador
has been 3 miles. And the second is that, within the relevant area, it is the Honduran coast that faces
directly into the Gulf, towards the closing-line. And by contrast, the coast of El Salvador lies at
right angles to the closing-line, shielded, as it were, by the mainland of El Salvador.
A word about this relevant area. As you will see from this map and also from Figure 1 in
your dossier, the relevant area is exclusively the western half of the Gulf. I have projected a line,
perpendicular to the closing line, from point X at the mid-point, back into the Gulf and it reaches the
Honduran coast here, at point Y. Within that area, relevant only to a Honduras/El Salvador
delimitation, the relevant coasts, measured by lines of general direction are these. For El Salvador
from Punta Ampala to this headland, Punta Chiquirin, and then across the Bahia de la Union to the
terminal point of the land boundary, marked here as point B. That is a coastal length of 18.3 miles.
The relevant Honduran coast can be measured from the frontier, here, point B, to the limit of
the western half, at point Y. And that gives a Hunduran coastal front of 18.9 miles. But although
the two coasts are roughly equal within the relevant area, and thus it may be thought justify an equal
division of the western half of the closing-line, one has to bear in mind that it is the Honduran coast
which faces directly onto the Pacific, directly onto the closing-line. That El Salvador's traditional
claim has been only one of 3 miles inside the Gulf and, most important of all, that El Salvador
enjoys a long Pacific coast, stretching further to the west. It is for these reasons that Honduras
submits that point C — the 3-mile limit — is the proper boundary point in this relevant area.
Having thus determined the equitable share on the closing-line, we can now turn to the
question of the equitable boundary as it projects out into the Pacific for some 200 miles.
(ii) The equitable boundary line seawards of the closing-line
Here we must take a broader, a wider look at the geography of the region. For we are now
concerned to establish an equitable boundary in the Pacific. We are no longer confined to
establishing an equitable share of the closing-line of the Gulf for Honduras. Accordingly, we are no
longer focused on the geography of the Gulf. We must shift our attention to the Pacific coast, in a
much wider perspective.
If I can invite the Court to look at this map, which is also figure 8 in your folder, enlarged
behind me, I will explain how Honduras sees this relevant area.
Clearly, my concern is to avoid any possible prejudice, either to Guatemala in the west, or to
Nicaragua in the east. So we must confine our relevant area so as to exclude maritime areas which
properly concern those other neighbouring States.
If we start with Guatemala, there will obviously be a future delimitation between El Salvador
and Guatemala. So our reasoning has been that we should reasonably consider that the western half
of the coast of El Salvador is relevant to a future delimitation with Guatemala. That is why we have
chosen point A, halfway along the coast of El Salvador, as the boundary point between the coast
which is relevant to a future delimitation with Guatemala, and the coast of El Salvador relevant to
the present delimitation with Honduras. From point A to Amapala is a distance of 68.4 miles.
If we turn to limiting the relevant area, to the west, so as not to include any area relevant only
to Guatemala and El Salvador, this limit can be achieved by projecting a line from point A, seawards
for 200 miles. The bearing of that line, that is the western boundary to the relevant area, should be
as a perpendicular to the coast of El Salvador, and that is why we have shown this limit — the
western boundary to the relevant area — as the line from A, seawards for 200 miles, out to
AC prime — on a bearing of 195.5o
from the coast.
If we turn, now, to the same exercise for Nicaragua, we have already identified point X, the
mid-point of the closing-line, as the limit of any reasonable claim by Nicaragua. But we must
achieve a similar limit seawards. And our submission is that the eastern limit to the area relevant to
the present delimitation between El Salvador and Honduras — or, if you like, the boundary between
the area relevant to this present delimitation and the area relevant to a future delimitation between
Honduras and Nicaragua — can be achieved in the following way.
We again draw a perpendicular out to 200 miles from point X. But it should be a
perpendicular to the coasts. We cannot, therefore, make it a perpendicular to the closing-line of the
Gulf, because the geography is such that the Gulf closing-line does not represent the general
direction of the coast. And you will note that the coasts of El Salvador, Nicaragua and the
closing-line of the Gulf do not have a uniform direction. So for this reason we followed the approach
of the Tribunal in the Guinea/Guinea Bissau case and looked at the coastal trend of the region as a
whole, in order to establish a general line of coastal direction. You will see this represented on this
map by a dashing-line stretching from Guatemala right down to Costa Rica. A perpendicular from
point X, perpendicular to that line in the general direction, produces the line XA prime, on a bearing
of 215.5o
.
So, we have now defined the relevant area by the two lines, AC prime to the west, and XA
prime to the east.
The task now becomes that of identifying an equitable boundary between El Salvador and
Honduras, within that relevant area. That task has to be performed in the light of certain legal
criteria. These are the following.
First, we must obviously start from point C, which is the point where the boundary within the
Gulf reaches the closing-line. There has to be continuity between the boundaries inside and outside
the Gulf.
Second, we must take account of boundaries, actual or potential, with third States. We have
done that by carefully defining and limiting the relevant area.
Third, we must take account of the security and related interests of the Parties. So the line
must not be such as to jeopardize the interests of El Salvador. And, by the same token, it must take
account of the interests of Honduras, interests in security, navigation, fishing and access to the
resources of the Pacific. So we need a line which will give Honduras reasonable access.
Fourth, to produce an equitable result, the line must be such as to accord to each Party such
an area as will be reasonably proportionate to the lengths of its coast within the relevant area. For
title is based on these coasts.
It is this last factor of proportionality which can give us most assistance in this case. Perhaps
I can now invite you to look at the last illustration in your folder, which is Figure 9. This is now
enlarged on the easel behind me.
The claim of Honduras to a maritime area in the Pacific is, as I have explained, based upon its
coasts inside the Gulf. As we have seen, within the relevant area, that coast, from B to Y, is some
18.9 miles in length.
El Salvador has much the longer coast: 18.3 miles inside the Gulf and 68.4 miles outside,
facing the Pacific — a total of 86.7 miles. That is a ratio of 86.7 to 18.9 in favour of El Salvador,
or roughly 4.6:1.
Now our relevant area, as I previously defined it, is approximately 27,1OO square kilometres.
If we simply project from point C a strict perpendicular, perpendicular to the general direction of the
coast, i.e., exactly parallel to the eastern limit to the relevant area, on the same bearing of 215.5o
,
Honduras would receive a narrow strip of some 4,3OO sq. km. That is too narrow: translated into
areal ratios it is 5.3:1 in favour of El Salvador. Whereas, as we have seen, the true coastal ratio is
only 4.6:1 in El Salvador's favour.
So the obvious remedy is to vary the angle of the line, as it projects from point C. In other
words, instead of having a strict perpendicular, on a bearing of 215.5°, we can widen the angle a
little, so as to increase the area which would attach to Honduras, moving the line slightly westwards.
If the areas strictly reflected the coastal ratios of 4.6:1, Honduras would need an area of 4,800
sq. km as opposed to this 4,300 sq. km.. That can be produced quite easily by widening this angle,
so that instead of the line proceeding on a bearing of 215.5° we have a line on a bearing of 216°. I
have illustrated this technique diagrammatically — it does not purport to be a precise illustration —
but you can see how by varying this angle as the line goes out to sea, one can decrease or increase
the maritime area which is dependent upon, and prolonged from, this section of the baseline. I have
marked the additional area here as a speckled segment, additional to the hatched segment that I first
spoke of.
Now, Mr. President, I must make it quite clear that what I am illustrating is a method.
Honduras understands full well that proportionality is not a source of title. We accept that: we
have, I hope, been quite explicit in arguing that the basis of the Honduran title is the Honduran coast.
Equally, we understand full well that the law does not aim at a mathematically exact correlation
between coastal lengths and maritime areas. It is precisely for this reason that I have mentioned the
other relevant factors: the interests of Honduras in security, in navigation, in access to resources.
Thus, Honduras does not expect the Court to utilize any mathematical method. My
demonstration was simply to show that, by varying the angle of the line, you can reflect the coastal
ratios. But you can equally reflect other, less tangible factors, and it is this exercise of judgment
which Honduras expects from the Court.
In any event, as the Honduran pleadings show, Honduras has no wildly extravagant
expectations. It fully recognizes that, being projected from a short section of the baseline — the
closing-line — the Honduran maritime areas will be a modest "corridor" or "fan", sandwiched
between the very large maritime areas of its neighbours. But it does expect a corridor. It does
expect some recognition by the Court that it is a coastal State on the Pacific Ocean. And it does not
expect the Court to take a view of "equity" which would lock Honduras inside the Gulf, denying to it
any maritime zone in the Pacific and allowing its two neighbours to share exclusively these vast
areas that lie in the Pacific.
But, Mr. President, I need not state the obvious and I have taxed the Court quite long enough.
Let me close by expressing my thanks to the Court for its patience.
The PRESIDENT: I thank Professor Bowett. The sitting is adjourned now until tomorrow at
3 o'clock in the afternoon.
The Chamber rose at 17.00 p.m.
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