Non-Corrigé
Uncorrected
CR 2007/10
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2007
Public sitting
held on Friday 16 March 2007, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Maritime Delimitation between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras)
________________
VERBATIM RECORD
________________
ANNÉE 2007
Audience publique
tenue le vendredi 16 mars 2007, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire de la Délimitation maritime entre le Nicaragua et le Honduras dans
la mer des Caraïbes (Nicaragua c. Honduras)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieigtgins
Vice-Prsi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc TorresBernárdez
Gaja
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-Kh.vsce-prh,ident
RanMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skjoteiskov,
BeTroáesz.
jugesaja, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambassa dor of the Republic of Nicaragua to the Kingdom
of the Netherlands,
as Agent, Counsel and Advocate;
H.E. Mr. Samuel Santos, Minister for Foreign Affairs of the Republic of Nicaragua,
Mr.Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Member of the International
Law Commission, Emeritus Chichele Professor of Public International Law, University of
Oxford, member of the Institut de droit interna tional, Distinguished Fellow, All Souls College,
Oxford,
Mr. Alex Oude Elferink, Research Associate, Neth erlands Institute for the Law of the Sea, Utrecht
University,
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member and former Chairman of
the International Law Commission,
Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid,
as Counsel and Advocates;
Mr.Robin Cleverly, M.A., DPhil, CGeol, F. G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Mr. Dick Gent, Law of the Sea Consultant, Admiralty Consultancy Services,
as Scientific and Technical Advisers;
MsTania Elena Pacheco Blandino, First Secretary, Embassy of the Republic of Nicaragua in the
Kingdom of the Netherlands,
MsNadine Susani, Doctor of Public Law, Centre de droit international de Nanterre(CEDIN),
University of Paris X-Nanterre,
as Assistant Advisers;
Ms Gina Hodgson, Ministry of Foreign Affairs,
Ms Ana Mogorrón Huerta,
as Assistants.
The Government of the Republic of Honduras is represented by:
H.E. Mr. Max Velásquez Díaz, Ambassador of the Republic of Honduras to the French Republic,
H.E. Mr. Roberto Flores Bermúdez, Ambassador of the Republic of Honduras to the United States
of America,
as Agents; - 5 -
Le Gouvernement de la République du Nicaragua est représenté par :
S. Exc. M. Carlos José Arguëllo Gómez, ambassad eur de la République du Nicaragua auprès du
Royaume des Pays-Bas,
comme agent, conseil et avocat ;
S. Exc. M. Samuel Santos, ministre des affaires étrangères de la République du Nicaragua,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre du barreau d’Angleterre, membre de la
Commission du droit international, professeur ém érite de droit international public (chaire
Chichele) à l’Université d’Oxford, membre de l’Institut de droit international,Distinguished
fellow au All Souls College d’Oxford,
M. Alex Oude Elferink, research associate à l’Institut néerlandais du droit de la mer de
l’Université d’Utrecht,
M. Alain Pellet, professeur à l’Université Paris X- Nanterre, membre et ancien président de la
Commission du droit international,
M. Antonio Remiro Brotóns, professeur de droit international à l’Universidad autónoma de Madrid,
comme conseils et avocats ;
M. Robin Cleverly, M.A., DPhil, CGeol, F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. Dick Gent, consultant en droit de la mer, Admiralty Consultancy Services,
comme conseillers scientifiques et techniques ;
Mme Tania Elena Pacheco Blandino, premier secrétaire de l’ambassade de la République du
Nicaragua au Royaume des Pays-Bas,
Mme Nadine Susani, docteur en droit public, Centre de droit international de Nanterre (CEDIN),
Université de Paris X-Nanterre,
comme conseillers adjoints ;
Mme Gina Hodgson, ministère des affaires étrangères,
Mme Ana Mogorrón Huerta,
commaessistantes .
Le Gouvernement de la République du Honduras est représenté par :
S. Exc. M. Max Velásquez Díaz, ambassadeur de la République du Honduras auprès de la
République française,
S. Exc. M. Roberto Flores Bermúdez, ambassad eur de la République du Honduras auprès des
Etats-Unis d’Amérique,
comme agents ; - 6 -
H.E. Mr.Julio Rendón Barnica, Ambassador of the Republic of Honduras to the Kingdom of the
Netherlands,
as Co-Agent;
MrP.ierre-Marie Dupuy, Professor of Public International Law, University of Paris
(Panthéon-Assas), and the European University Institute in Florence,
Mr. Luis Ignacio Sánchez Rodríguez, Professor of International Law, Universidad Complutense de
Madrid,
Mr.Christopher Greenwood, C.M.G., Q.C., Profess or of International Law, London School of
Economics and Political Science,
Mr. Philippe Sands, Q.C., Professor of Law, University College London,
Mr.Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI
Panthéon-Sorbonne,
Mr. David A. Colson, LeBoeuf, Lamb, Green & MacRae, LL.P., Washington, D.C., member of the
California State Bar and District of Columbia Bar,
Mr. Carlos Jiménez Piernas, Professor of International Law, Universidad de Alcalá, Madrid,
Mr. Richard Meese, avocat à la Cour d’appel de Paris,
as Counsel and Advocates;
H.E. Mr. Milton Jiménez Puerto, Minister for Foreign Affairs of the Republic of Honduras,
H.E. Mr.Eduardo Enrique Reina García, Deputy Mini ster for Foreign Affairs of the Republic of
Honduras,
H.E. Mr. Carlos López Contreras, Ambassador, National Counsellor, Ministry of Foreign Affairs,
H.E. Mr.Roberto Arita Quiñónez, Ambassador, Director of the Special Bureau on Sovereignty
Affairs, Ministry of Foreign Affairs,
H.E. Mr. José Eduardo Martell Mejía, Ambassador of the Republic of Honduras to the Kingdom of
Spain,
H.E. Mr. Miguel Tosta Appel, Ambassador, Chairm an of the Honduran Demarcation Commission,
Ministry of Foreign Affairs,
H.E. MsPatricia Licona Cubero, Ambassador, Advi ser for Central American Integration Affairs,
Ministry of Foreign Affairs,
as Advisers;
Ms Anjolie Singh, Assistant, University College London, member of the Indian Bar,
Ms Adriana Fabra, Associate Professor of International Law, Universitat Autónoma de Barcelona, - 7 -
S. Exc. M. Julio Rendón Barnica, ambassadeur de la République du Honduras auprès du Royaume
des Pays-Bas,
comme coagent ;
M. Pierre-Marie Dupuy, professeur de droit in ternational public à l’Université de Paris
(Panthéon-Assas) et à l’Institut universitaire européen de Florence,
M. Luis Ignacio Sánchez Rodríguez, professeur de droit international à l’Université Complutense
de Madrid,
M. Christopher Greenwood, C.M.G., Q.C., professeur de droit international à la London School of
Economics and Political Sciences,
M. Philippe Sands, Q.C., professeur de droit au University College de Londres,
M. Jean-Pierre Quéneudec, professeur émérite de droit international à l’Université ParisI
(Panthéon-Sorbonne),
M. David A. Colson, LeBoeuf, Lamb, Greene & MacRae, L.L.P., Washington, D.C., membre du
barreau de l’Etat de Californie et du barreau du district de Columbia,
M. Carlos Jiménez Piernas, professeur de droit international à l’Université de Alcalá (Madrid),
M. Richard Meese, avocat à la cour d’appel de Paris,
comme conseils et avocats ;
S. Exc. M. Milton Jiménez Puerto, ministre des affaires étrangères de la République du Honduras,
S. Exc. M. Eduardo Enrique Reina García, vice-mi nistre des affaires étrangères de la République
du Honduras,
S. Exc. M. Carlos López Contreras, ambassadeu r, conseiller national au ministère des affaires
étrangères,
S. Exc. M. Roberto Arita Quiñónez, ambassadeur, directeur du bureau spécial pour les affaires de
souveraineté du ministère des affaires étrangères,
S. Exc. M. José Eduardo Martell Mejía, ambass adeur de la République du Honduras auprès du
Royaume d’Espagne,
S. Exc. M. Miguel Tosta Appel, ambassadeur, président de la commission hondurienne de
démarcation du ministère des affaires étrangères,
S. Exc. Mme Patricia Licona Cubero, ambassad eur, conseiller pour les affaires d’intégration
d’Amérique Centrale du ministère des affaires étrangères,
comme conseillers ;
Mme Anjolie Singh, assistante au University College de Londres, membre du barreau indien,
Mme Adriana Fabra, professeur associé de dro it international à l’Université autonome de
Barcelone, - 8 -
Mr. Javier Quel López, Professor of International Law, Universidad del País Vasco,
Ms Gabriela Membreño, Assistant Adviser to the Minister for Foreign Affairs,
Mr. Sergio Acosta, Minister Counsellor, Embassy of the Republic of Honduras in the Kingdom of
the Netherlands,
as Assistant Advisers;
Mr. Scott Edmonds, Cartographer, International Mapping,
Mr. Thomas D. Frogh, Cartographer, International Mapping,
as Technical Advisers. - 9 -
M. Javier Quel López, professeur de droit international à l’Université du Pays basque,
Mme Gabriela Membreño, conseiller adjoint du ministre des affaires étrangères,
M. Sergio Acosta, ministre conseiller à l’amba ssade de la République du Honduras au Royaume
des Pays-Bas,
comme conseillers adjoints ;
M. Scott Edmonds, cartographe, International Mapping,
M. Thomas D. Frogh, cartographe, International Mapping,
comme conseillers techniques. - 10 -
The PRESIDENT: Please be seated. Yes, Mr. Colson.
Mr. COLSON: Thank you, Madam President.
The single maritime boundary
67. Madam President and Members of the Co urt, yesterday we were speaking of the
technical characteristics of the Honduran line a nd we had just finished the discussion of the
starting-point, and now I would like to turn to th e law of the sea characteristics of the traditional
line as the single maritime boundary. On the screen now is figure 8: this was in the judges’ folders
yesterday. It may be useful to examine the Hondur an line carefully, even though in fact it is a line
of latitude.
68. As we discussed yesterday, the maritime boundary that Honduras proposes begins at a
point on latitude 14º59.8'N that is three nautical miles east of the final point determined by the
1962 Mixed Commission.
69. The Honduran line extends east from this point, being a territorial sea boundary between
the territorial seas of Honduras and Nicaragua, un til it reaches the 12 nautical-mile limit measured
from the mouth of the Rio Coco. Beyond the ma inland 12 nautical-mile limit, the Honduran line
extends east into a pocket of water ⎯ shown here in the darker shade of blue ⎯ that is beyond
12 nautical miles from any feature; thus, the Honduran line serves as a maritime boundary between
the respective exclusive economic zones of Hondur as and Nicaragua in this small area. The
Honduran line does so for only about 3.6nautical miles and then emerges into waters that are
within 12 nautical miles of Honduran and Nicara guan islands, reefs and cays; thus, the Honduran
line continues to extend east as a boundary that divides the territorial seas of Honduras and
Nicaragua for about 20 nautical miles.
70. Just before the Honduran line reaches 82º 30' W longitude, its legal character changes. It
is no longer within 12nautical miles of Nicaraguan geographic features ⎯ Nicaraguan islands ⎯
but it is still within 12 nautical miles of Honduran territory. The waters south of the Honduran line
are Nicaraguan exclusive economic zone, while the waters north of it are Honduran territorial sea. - 11 -
71. In this stretch, which is about 21.6 nautical miles, Honduras has not sought a full
territorial sea entitlement for its islands to extend its territorial sea south of the traditional line.
Honduras respects the traditional line and has done so over many years.
72. The fact that a maritime boundary serves to divide waters of a different juridical
character ⎯ the territorial sea on the one hand, from the exclusive economic zone on the other
hand ⎯ is an often unnoticed consequence of maritime boundaries that are not precise equidistance
lines. It is also one reason that States have f ound it useful to refer to their maritime boundaries as
“single maritime boundaries”, rather than as territorial sea or exclusive economic zone boundaries.
73. Simply to illustrate this point, there is now a figure on the screen which shows that when
the Court in Qatar v. Bahrain ⎯ this is figure 9 in yesterday’s judges’ folder ⎯ chose to adjust the
provisional equidistance line in the outer area because of Fasht al Jarim, the result was that one part
of the single maritime boundary in that case in f act became a boundary between Qatar’s territorial
sea and Bahrain’s exclusive economic zone.
74. Another interesting example to illustrate the same point is shown in figure10, which
depicts the boundary line established by the arbitration tribunal in the Eritrea/Yemen case. In key
areas, that single maritime boundary divides Yemen’s territorial sea measured from its islands from
Eritrea’s exclusive economic zone. Just as the traditional line does in this case, the boundary in
Eritrea/Yemen truncates the territorial sea of Yemen’s islands from extending a full
12 nautical-mile breadth, even when there was room to do so without affecting the 12 nautical-mile
zone of Eritrea.
75. Returning to the Honduran line as shown on figure 8, at about 82° 10' W, the Honduran
line is no longer within 12 nautical miles of any geographic feature; thus, it serves as an exclusive
economic zone boundary, and it does for only 8.3 nautical miles before crossing the 82nd meridian.
Thus, from the mouth of the Rio Coco at Gracias a Dios to 82°W ⎯ a distance of about
65nautical miles–– the Honduran line serves to limit Honduras’s territorial sea for more than
80 per cent of its reach to 82º W longitude. In other words, along the 65 nautical-mile length of the
Honduran line, 53 nautical miles serve as a territorial sea boundary.
76. Now, what does the Convention say about th e boundary of the territorial sea? Article 15
of the Convention says: - 12 -
“Where the coasts of two States are opposite or adjacent to each other, neither
of the two States is entitled, failing agreement between them to the contrary, to extend
its territorial sea beyond the median line ever y point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above pr ovision does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith.”
Finally, let us just say a word about the term inal point. Honduras believes the boundary should
stop at 82° W longitude, but we recognize that this is a sensitive point for Nicaragua and we regard
it as unnecessary to pull the Court into the matter. Honduras, thus, has not articulated a specific
terminal point for its line, but has agreed, as Nicar agua has agreed, that the terminal point of the
Court’s line should be expressed in terms of a line that extends in a direction until the jurisdiction
of a third State is reached.
77. This completes the examination of the technical characteristics of the Honduran line.
B. The basis of the traditional line
1. The historical roots
78. I would now like to begin a discussion of th e elements that form the legal basis of the
Honduran line. These are the historical roots, th e geographic circumstances and the conduct of the
Parties. Now we are placing on the screen figure11, which shows the Honduran line and the
Nicaraguan proposal. As ProfessorSánchez Rodríg uez has shown, when the Spanish colonies of
Central America became independent from Spai n in 1821 they adopted the principle of
uti possidetis juris of 1821 for the purpose of agreeing that the boundaries of the newly-established
republics should be the frontiers of the Spanish provinces they were succeeding. This had and has
several consequences for Honduras and Nicaragua.
79. First, no territory in Central America was without an owner including the islands of
Spain in the sea off the coast of Honduras and Nicaragua. Second, de facto possession by one party
or the other would not be relevant in resolvi ng a territorial dispute between Central American
States where the legal title is established by virtue of this principle.
80. While the principles are straightforwar d and perhaps they are even common ground
between the Parties, it is also true that their a pplication has proved difficult. Throughout a large
part of the nineteenthcentury, as we said yester day, these two States contested large portions of - 13 -
their land boundary. Ultimately recourse was had to arbitration under the 1894 Treaty and, as we
know, this led to the King of Spain’s Award in 1906. Nicaragua contested that Award on various
grounds and, as we know, that brought the Parties to the Court and in 1960 this Court rendered its
opinion in the matter and upheld the 1906 Award of the King of Spain.
81. Now why is it relevant now here? It is so for two reasons at least. First, the King of
Spain established the mouth of the Rio Coco as th e end of the land boundary between the Parties.
Second, while the small Spanish islands along the coast contested by Honduras and Nicaragua were
not named in the Award of the King of Spain, by application of the uti possidetis principle the
islands had belonged to Spain and by further app lication of this principle the islands came to
belong to one or the other of these two countries.
82. Were the coastal islands known in the Spanish Empire at the time of the independence of
the Central American States? Certainly they were. In the record there are maps of this region
dating from that period, and now on the scree n is one of those maps (figure12) which
Professor Sands showed on Tuesday (PS1-2) and it ap peared at plate 27 in the map annexes to the
Honduran Counter-Memorial. This map is dated 1801. It clearly shows the coastal features and
the islands. You can see that Cabo Gracias a Dios is named, and the groupi ng of islands north of
15°N latitude, shown on this chart perhaps in not exactly the right position, but you can see that
the island grouping is named “Alargardoalla” co rresponding to what we see today on nautical
charts as Arrecife Alargardo. Now these are undoubtedly small features, but they are not unstable.
They have been in this position for a long, long time.
83. Given the propensity of the Spanish Empire to use parallels of latitude and meridians of
longitude to identify jurisdictional divisions, a nd in light of Spain’s 2-marine-league maritime
claim, it is inconceivable that a maritime division between Nicaragua and Honduras at the time of
independence would have occurred along any line ot her than the latitude of CaboGracias aDios,
or that the islands north of the latitude of Ca bo Gracias aDios would have been deemed to
appertain to Nicaragua at the time.
84. In this regard, it may be recalled that once the independence of the Central American
republics had been achieved, Spain entered into tr eaties with each of them, which included Spain’s
renunciation of any claim to the territory of each new State. In these treaties, Spain not only - 14 -
renounced any claim to mainland territory, it speci fically renounced any claim to the islands
adjacent to the coast of the country concerned. Both ProfessoG r reenwood and
Professor Sánchez Rodríguez mentioned this point. For instance, the relevant treaty between Spain
and Nicaragua is dated 25 July 1850 and it can be found at Annex 11 of Nicaragua’s Reply. On the
screen is Article 1 of that treaty (figure13) and we are highlighting the phrase “adjacent islands”.
The corresponding treaty between Spain and Honduras is dated 15 March 1866. Here again we put
on the screen Article1 of that treaty (figure14) which uses the phrase “adjacent islands that lie
along its coasts in both oceans”. Is it possible to believe that the concept of adjacency, used here,
could mean that the islands north of Cabo Gracias a Dios were deemed to appertain to the country,
or coast, that lies south of that cape?
85. Of course, the uti possidetis principle can only be understood in the context of the time,
and Honduras does not argue, it does not argue, that the boundaries of the modern features of
international law (the extended territorial sea, the continental shelf or the exclusive economic zone)
were determined in 1821. Honduras does argue, however, that the practice of Spain in colonial
times, the respect of the Central American States for the uti possidetis principle, and the
confirmation of that principle in the 1906Award and the 1960Judgment of the Court, altogether,
confirm Honduras’s sovereignty over the islands north of the latitude of the cape where their land
boundary reaches the sea. That territorial sovereignty ⎯ rooted in history ⎯ provides the
traditional line which separates these Honduran isla nds from the Nicaraguan islands to the south,
gives the Honduran line a rich historical basis that contributes to its legal foundation.
86. Briefly, what is the historical basis of the Nicaraguan proposal? It has none. Nicaragua
has not argued that its line has a historical basis. It has made a feeble effort in its Memorial to
demonstrate a historical connection to the islands north of 15° by suggesting that those islands may
1
have been visited by Indians of the Mosquito coast . It has not pursued that argument. There
simply is no basis for the Nicaraguan proposal in this case. There is no historical basis.
1
MN, p. 2, para. 7. - 15 -
2. The geographic basis
87. What about the geographic basis of th e traditional line? ProfesssorQuéneudec on
Wednesday examined the geographic circumstances within which this delimitation takes place.
Two geographical facts are of particular note wi th reference to the geographic basis of the
traditional line.
88. The first is that the traditional line exte nds seaward roughly perpendicular to the general
direction of the Central American coast that runs from the Nicaragua-Costa Rica land boundary
terminus northward to Cape Falso in Honduras wher e the coast of Central America begins its turn
to the west. The relevant coasts of Nicaragua and Honduras in this maritime boundary case face
east. In the midst of the eastward facing coastal fro nt is Cabo Gracias a Dios that points east, and
the land boundary river runs east to reach the sea at the eastern tip of that cape.
89. In these circumstances, it is hardly surprising that the Parties adopted a practice sustained
for many years by their conduct wherein their de facto maritime boundary ran east along the
latitude of Cabo Gracias a Dios where their land boundary meets the sea.
90. The second geographical fact concerns th e islands which the new Nicaraguan line now
claims for Nicaragua. Nicaragua says these islands should be disregarded in the matter before the
Court and it is convenient for Nicaragua to be bl ind to the islands. By being blind to them
Nicaragua avoids the reality that, since the islands belong to Honduras, the maritime boundary
between Honduras and Nicaragua must run between the Honduran islands ⎯ all of which lie north
of 15º-- and those of Nicaragua, which lie to th e south. Whether this maritime boundary is the
traditional line or, as we shall see, the provi sional equidistance line or even an adjusted
equidistance line, these lines all run roughly the same way, eastward from CaboGraciasaDios,
properly separating the geographic features that belong to Honduras from those that belong to
Nicaragua.
91. Thus, these two geographical facts ⎯ the eastward facing coast of Central America at the
land boundary terminus and the H onduran islands north of 15°, pr ovide a sound geographic basis
for the Honduran position. - 16 -
92. What is the geographic basis of the Nicar aguan proposal? Nicaragua constructs its new
line by bisecting the angle formed by two other lines. These other two lines are put forward by
Nicaragua to represent what it calls the relevant coastal fronts of Nicaragua and Honduras.
93. Nicaragua represents its own coastal front ⎯ the Nicaraguan coastal front is one that
faces east; or, put another way, as Nicaragua does in its Memorial: “The direction of the
Nicaraguan coast basically follows a meridian of longitude.” 2 Now, one cannot argue with that
proposition ⎯ the Nicaraguan coast runs from north to south and faces east. The general direction
of the coast and the direction in which a coast faces are two attributes in the assessment of a
relevant coast in a maritime delimitation problem; and, in these regards, one cannot argue with the
perspective given by Nicaragua that its relevant coast runs from north to south and faces east.
94. However, Nicaragua errs when it suggest s that the entirety of the Nicaraguan coastal
front is relevant to this delimitation, namely the entire coast of Nicaragua from
CaboGraciasaDios to Nicaragua’s border with Costa Rica. As ProfessorQuéneudec has
demonstrated, the relevant coast in any delimita tion case is the coast that faces the delimitation
area. Much of the Nicaraguan coast identified as relevant by Nicaragua in this case is far from
where this delimitation must take place. The Nicar aguan coast near to Costa Rica may be relevant
to that delimitation but not to this one. Thus, wh ile Nicaragua correctly identifies the direction of
its relevant coast, it correctly identifies the direc tion that it faces, it incorrectly includes in its
assessment portions of the Nicaraguan coast that are not relevant here.
95. Turning to Nicaragua’s representation of the relevant coast of Honduras, it can only be
said that it fails in legal terms in all respect s. What Nicaragua portrays as Honduras’s relevant
coast does not correctly represent the general direc tion of the coast of Honduras relevant to this
delimitation. It does not correctly represent the direction in which the relevant coast of Honduras
faces and Nicaragua includes in its assessment coasts, indeed large amounts of Honduran land
territory, that are far removed from the area pertinen t to this case. Nicaragua suggests to the Court
an extremely distorted presentation of the relevant Honduran coastal front ⎯ Professor Quéneudec
has reviewed that thoroughly with you ⎯ it suggests this coastal front is simply a line that stretches
2
MN, p. 17, para. 35. - 17 -
directly from Honduras’s boundary with Nicaragua to its boundary with Guatemala. This is not a
coastal façade in any sense of the term. Ni caragua makes no effort to present a simplified
representation of the coastal façade of Honduras or to identify the Honduran coast that faces the
area in which this delimitation must take place.
96. Having created two lines that are without legal basis, Nicaragua then determines the
mathematical bisector of those lines and asserts that such a line would serve as an equitable
maritime boundary and, it just so happens as well, that it would attribute s overeignty over islands.
I would like to pause here just very briefly to say a word or two about the bisector method.
97. First, Honduras does not deny that geom etrical methods of delimitation, such as
perpendiculars and bisectors, are methods that may produce equitable delimitations in some
circumstances. Certainly there is some State practice that illustrates the use of perpendiculars; and
there is one example in judicial practice of th e use of a bisector, in the first segment of the
boundary line determined by the Chamber in the Gulf of Maine case.
98. However, to state that the bisector method is the “alter ego” of equidistance, as was said
at page 13 of the 7 March transcript (CR 2007/3, para. 199), perhaps goes too far — particularly if
the evidence is limited to the examples that Mr. Brownlie submitted on the previous day.
99. Mr. Brownlie in his presentation on 6 Ma rch (CR 2007/2, pp. 14-15, paras. 20-29), gave
nine examples of State practice to support Nicaragua’s argument. Most of these examples are
notional perpendiculars to the general direction of the coast that conform to what an equidistance
line would look like in those circumstances. I mi ght note that all of those boundary lines were
determined after the Parties had resolved any questio n of territorial sovereignty. The first example
he gave was the 1960 Senegal-Guinea Bissau agreemen t that runs at 240° from the African coast.
Now, if you work at it, you can argue it is a bisector of two coastal fronts, other commentators
would say it is a perpendicular to the general di rection of the coast. The second example was the
1964 Sharjah-Umm al Qaywayn boundary ⎯ clearly a perpendicular to a common coastal front.
Third was the 1968 AbuDhabi-Dubai boundary ⎯ another perpendicular. The fourth was the
Mexico-United States boundary in the Gulf of Mexico ⎯ and I would like to come back to that in a
moment. Fifth was the 1972 Brazil-Uruguay boundary, another perpendicular that conforms to the
equidistance line in the circumstances, and one sp ecifically in that case where the starting-point - 18 -
problems at the mouth of the Chuy Stream had to be overcome before the maritime delimitation
could take place. Sixth was the 1973 Argentin a-Uruguay boundary. Mr.Brownlie showed a
graphic of the inner portion of that line which is a perpendicular to the closing line of the Rio de la
Plata. He did not mention that the outer portion is a segmented equidistance line. Seventh was the
1980Costa Rica-Panama boundary—another exampl e of a perpendicular that conforms to
equidistance in the circumstances. The eighth was the 1981 Brazil-French Guiana boundary ⎯ the
same, a perpendicular that conforms to equidist ance in the circumstances. The ninth was the 1996
boundary between Estonia and Latvia which, as he said, is a perpendicular to the closing line of the
Gulf of Riga; but what was not mentioned was that within the Gulf of Riga the boundary winds its
way around the Estonian islands. Altogether, this is pretty thin support for the angle bisector
method that Nicaragua proposes here.
100. Let me return to that Mexico-United Stat es delimitation that he cited in the Gulf of
Mexico, and we are putting now on the screen figure15, the map that was employed by
Mr.Brownlie, which is IB8. Now there are three boundary lines really here: there is a
1970territorial sea boundary, which is the black line that comes right off the mouth of the
Rio Coco; there is a 1976-1978 exclusive economic zone component, which has two segments and
these can be seen in red; and then there is a 2000 component, which is the blue line, which delimits
the outer continental shelf between Mexico and th e United States beyond 200nautical miles. I
believe it would come as a surprise to Mexican and United States officials involved in those
negotiations if they were informed that they had negotiated ⎯ and had intended to negotiate ⎯
boundaries that were perpendicular to the general direction of the coast. These boundary lines are
all equidistance lines, in all of their parts, ais the Mexico-United States boundary in the Pacific
Ocean.
101. We can see that the general direction of the coast that Nicaragua has placed on the map
is really artificial and has no relation to the coasof the two countries in the Gulf of Mexico. In
fact, after this boundary leaves the concave mainla nd coast in the vicinity of the Rio Grande, it
becomes a boundary between opposite coasts, and notably in the construction of the equidistance
line, particularly in the central and eastern sectors of this line, very small Mexican islands, called
Arrecife Alacran and Cayo Arenas, that are situat ed 75nautical miles off the Yucatan peninsula, - 19 -
were base points on the Mexican side. On the scr een now is figure16, which is a map from the
International Maritime Boundaries series of the American Society [of International Law] showing
these equidistance lines: and these also show the location of Cayo Arenas and Arrecife Alacran
that were used as base points in the constructi on of this line. If anything, this boundary is a
regional example of an equidistance line delimitation between coasts that are both adjacent and
opposite, where the parties agreed to use small islands as base points in the equidistance line
construction. I submit, as well, that this also is pretty weak evidence to justify the Nicaraguan
bisector proposal.
102. In summary, Nicaragua’s new bisector proposal has no geographic basis, and you can
find only limited support for the bisector method in State practice or judicial practice. The
Nicaraguan proposal has no geographic basis because the method employed to develop the bisector
line itself does not rely on the relevant coasts that face the area to be delimited, and it disregards the
territorial sovereignty of the islands off the coast. Nicaragua’s presentation of the bisector
geometry that it creates is contrived for one reason ⎯ and that, simply, is to enable the geometric
construction of a new Nicaraguan proposal that ju st so happens to place the Honduran islands on
Nicaragua’s claimed side of that line. The new Nicaraguan proposal not only extends from the
eastward facing coast of Central America in an oblique direction, one that has no relationship to the
relevant coasts that face the ar ea to be delimited, it also places the Honduran islands on the wrong
side ⎯ the Nicaraguan claimed side ⎯ of that line. The Nicaraguan line thus has no geographic
basis in the relevant geographic circumstances in this case.
3. The basis in the conduct of the Parties
103. Let me turn briefly to the conduct of the Parties. Professor Sands has dealt extensively
with the facts pertaining to the conduct of the Par ties in this case. The facts are very clear. Before
the change in government in Nicaragua in 1979, Nicaragua made no claim to jurisdiction north of
the latitude of Cabo Gracias a Dios.
104. In contrast, Honduras’s position has been consistent; the Honduran line is well founded
in the conduct of the Parties which contributes to its legal foundation. The traditional line predates
Nicaragua’s change of position by many years. And one category of facts, reviewed thoroughly by - 20 -
ProfessorSands, provides a particularly clear, stra ightforward, and unambiguous picture. These
facts pertain to the abutting oil concessions that bot h Parties issued from the early 1960s forward.
The concessions were aligned along the traditional line.
105. Nicaragua argues that these facts are not relevant because there was no formal
agreement and because there was some uncertainty about the precise latitude of the land boundary
terminus in those days. The fact that there was no formal treaty or that a lack of clarity existed
about the precise latitude of the mouth of the Ri o Coco, whether it be 15º, or 14º59.8'N, or
14º59'08"N, which was the essence of the differe nce, is hardly relevant now. The evidence
shows that the Parties deliberately aligned their oil practice for about one-and-a-half decades.
106. The evidence is overwhelming, and Prof essor Sands has reviewed it with you. There
can be no doubt that whatever technical uncertain ty may have existed as to the precise latitude of
the boundary relationship, meaning the precise latitude of the mouth of the river at the Rio Coco, it
cannot deny the practice engaged in by both governments.
107. In this regard, it is worth reminding that in the Tunisia/Libya case there were minor
overlaps between the Libyan and the Tunisian co ncessions in the vicinity of the land boundary
terminus at Ras Adjir, and there was no formal continental shelf treaty, yet the deliberate alignment
of oil concessions was particularly rele vant in that case. Indeed, in the Tunisia/Libya case the
Court found a de facto boundary to exist, reflected in the colonial practice to be sure, consistent
with the geography to be sure, as a perpendicu lar to the general direction of the coast, but
evidenced as well by a Tunisian oil concession th at was issued in October1966 and a Libyan
concession that was issued in April1968 wh ich were aligned— deliberately aligned ⎯ for an
8-year period, from 1968 to 1976, when the pattern broke down.
108. It may be helpful to review for a fe w minutes those facts that pertain to the oil
concessions that were before the Court at that tim e, so as more fully to appreciate that Judgment
and its application here. It will be recalled that in that case, the case was before the Court by way
of a Special Agreement that was signed in 1977, that followed several serious naval engagements
in the middle of 1976 that related to offshore petr oleum activities. Now on the screen is figure 17,
which is a reproduction of mapNo.3 from the Libyan Memorial, and it is reproduced as map
No.41 in the pleadings that were published by the Court ( I.C.J. Pleadings, Continental Shelf - 21 -
(Tunisia/Libyan Arab Jamahiriya) , Vol. VI, plate41). This depicts two key concessions ⎯ one
Libyan and one Tunisian. The label on the Libyan map is in error because it dates the Tunisian
concession 1967: actually it was October 1966. Th ese concessions and their location were well
known and while it is not clear at this scale, the eastern side of the Tunisian concession area is a
series of stepped lines approximating a 26º line fro m the Tunisia/Libya land boundary terminus at
Ras Adjir and it extends to a latitude 33º 55' N, and we are going to mark that position for ease of
reference (X).
109. Thus, beginning in April of 1968 there was a deliberate practice of Tunisia and Libya to
align their concessions in the area south of 33º 55' N. Four years later, in 1972, the picture began
to get complicated. New concessions were issued by both countries but they were north of
33º55'N and they overlapped, but south of 33º 55'N the situation remained the same. And it
remained the same until 1976, just before the Par ties came to the Court, when Tunisia expanded its
concessions eastward into the Libyan concession. Thus, the deliberate common oil practice along
the 26ºline south of 33º55'N occurred over an eight-year period from 1968 to 1976. (Put up
figure 18)
110. In this case, the issuance of deliberately aligned oil concessions is longer ⎯ beginning
from at least 1962 by Honduras and from 1965 by Nicaragua up to the time of Nicaragua’s change
of position, indeed if not longer3. Based on this concurrence of view, the area in dispute today was
not in dispute then.
111. One may ask whether the alignment of Honduras and Nicaragua of these concessions
was really deliberate, as was the case between Tuni sia and Libya? Surely it was. The evidence of
deliberate alignment is conclusively proved if by no other fact than these two countries agreed to a
joint project along 15º N latitude in the drilling of the Coco Marina well.
112. Now just consider the Coco Marina project for a minute and its implications. It makes
obvious sense for Honduras to co-operate with Nicaragua in a joint project along the traditional line
in regard to the oil concessions. It likewise makes sense for Nicaragua to do so if Nicaragua
respects the traditional line and wishes to promote its interest in connection with the aligned oil
3
RN, para. 5.17. - 22 -
concessions. It makes no sense, however, for Nica ragua to co-operate with Honduras, jointly to
authorize the drilling of the Coco Marina well at 15º N latitude if Nicaragua believes that Honduras
does not have title to the adjoining area. If indeed , at the time the Coco Marina well was drilled, if
Nicaragua had even remote pretensions to the ar ea north of 15° that it now claims, including the
islands, Nicaragua would never have agreed to a joint operation with Honduras along the
traditional line along at 15°N. No Government in the same situation would do so. The Coco
Marina well is about 17nautical miles due south of the line that Nicaragua now claims. It is
inconceivable that Nicaragua claimed the area nor th of 15ºN latitude in 1969 when the Coco
Marina well was drilled. This single fact alone is evidence of Nicaragua’s past respect for the
traditional line and confirmation of the reality of Nicaragua’s substantial change in position.
113. The record is incontestable. Nicaragua accepted and acted upon the traditional line up
to the time of the change in Government in 1979. There was a true tacit agreement. Since then,
Nicaragua has sought to overturn what was agr eed and acted upon. Honduras consistently has
rejected those efforts and Honduras is now before the Court to seek confirmation of the traditional
line, just as in 1960 it sought confirmation from the Court of the 1906 Award.
114. Altogether there is a basis in law for the Honduran line in history, geography and the
conduct of the Parties. There is no legal basis for the Nicaraguan proposal.
II. The equitable character of the Honduran line
A. Its confirmation in the jurisprudence of the Court
115. I know turn to a discussion of the equitable character of the Honduran line. The
objective of an equitable delimitation is to ensure that to the extent possible the maritime boundary
leaves to each party the maritime area that lies in front of its coast. This proposition is expressed in
international law through the principle of non-encroachment — meaning the non-encroachment of
one party on the natural prolongation of the other, or otherwise expressed in terms of avoiding the
cut-off of the seaward projection of either of the States concerned. Nicaragua expresses it as
follows in its Memorial: “The fundamental require ment of equity is that a delimitation line cannot
pass too close to one of the coasts involved.” 4
4
MN, p. 119, para. 74. - 23 -
116. To achieve this objective, the Court must apply a delimitation method. Now in this
stage of the practice it is common to refer initially to the provisional equidistance line, to determine
whether it should be adjusted, or whether anothe r method should be employed, to achieve an
equitable result. Honduras, however, notes that the Court’s approach to delimitation method in
recent cases has never denied that another method or approach might be employed once the
provisional equidistance line has been examined. In Honduras’s view, if the Court proceeds to
examine the provisional equidistance line in this case, there is nothing in the Court’s methodology
that would prevent it from adopting the traditi onal line as the maritime boundary between the
Parties.
117. Furthermore, when the Honduran line is held up to the objective of an equitable
delimitation, and when the provisional equidistance line is examined, the equitable character of the
traditional line is readily apparent.
B. The Honduran line complies with the principle of non-encroachment
118. When examining the principle of non-en croachment, the essential legal question is
whether the line examined lies too close to the te rritory of the State concerned. Thus, in these
geographic circumstances, the question is: does the Honduran line run too close to Nicaraguan
territory so as to cut off the extension of Nicaragua’s coastal front into the sea?
119. In Honduras’s view, the answer is no. The Honduran line is always the same distance
from the mainland of both countries at the mouth of the Rio Coco; for the most part, the Honduran
line runs closer to the islands of Honduras than it does to the islands of Nicaragua. Thus, the
Honduran line can hardly be said to lie too close to Nicaragua.
120. Furthermore, Nicaragua admits it has a lin ear coastal front that runs from Cabo Gracias
a Dios in the north to its boundary with Costa Rica in the south. The mainland coast of Nicaragua
faces east. No part of its mainland coastal front faces north, or north-east, or even east-north-east.
It faces east or perhaps even slightly south of east.
121. The traditional line that runs due east from Cabo Gracias a Dios does not run in front of
the coastal front of Nicaragua. If a coast only f aces east, its seaward extension is not cut off by a
boundary that runs east. - 24 -
122. We have put on the screen plate49 from the Honduran Rejoinder (figure19). This
figure is simply designed to demonstrate that the traditional line, shown here in red, does not cut
off the extension of Nicaragua’s coastal front in to the sea. The Honduran line complies with the
principle of non-encroachment. In contrast, Nicar agua’s proposal, which runs obliquely across the
eastward facing coastal front of Honduras, does not comply with the principle of
non-encroachment.
C. The Honduran line is equitable when compared against the provisional equidistance line
1. The reason for the examination
123. Now we turn to the provisional equi distance line. We make this examination
notwithstanding the Honduran position that the trad itional line has been respected and has been
followed by Honduras for many years and by Nicaragua up to 1979 or 1980, and it is the Honduran
position in this case. We do so because of the a pproach adopted by the Court in recent cases to
review the provisional equidistance line to assess wh ether it should be adjusted, or another method
employed, to create an equitable solution. We also do so because the provisional equidistance line
confirms the equitable character of the Honduran po sition. It is also necessary to respond to the
argument made by Mr. Brownlie in this regard on 7 March (CR 2007/3, pp. 10-13, paras. 190-199).
124. In the recent Barbados-Trinidad and Tobago case, the Tribunal referred to the judicial
practice of examining the provisional equidistance lin e as a first step in the analysis of a maritime
boundary problem as a “hypothesis” (para. 242). Th e Court, of course, has said as much on more
than one occasion. As such, the question to be examined is whether the provisional equidistance
line appears itself to provide an equitable soluti on, whether an adjustment should be made in
applying the equidistance method, or that another method should be employed.
125. Thus, the purpose of the exercise we are embarking upon is to see what the provisional
equidistance line looks like. Mr. Brownlie was hi ghly critical of the provisional equidistance line
set out by Honduras in the Rejoinder. He called it “totally misleading” (CR2007/3, p.10,
para. 192), and he said that it “does not satisfy th e legal and hydrographic criteria of validity of a
line described as an ‘equidistance line’” (CR 2007/3, p. 11, para. 195). And to support his criticism
he seemed to have three specific objections. - 25 -
126. One of those objections was that Honduras has used the high-tide line rather than the
low-tide line of the features shown on the chart as the proper points from which to measure the
provisional equidistance line. In response we say the following. First, in the circumstances,
whether the provisional equidistance line ⎯ as a hypothesis ⎯ is developed from the low-tide or
high-tide line would not seem to be material in most situations where the line is being examined for
a general impression. I suggest that the Court woul d not be able to discern the difference if this
difference was depicted in two lines shown on the papers before you. Second, in mounting this
objection, there was no demonstration of where we had erred: there was no chart, there was no
specific example cited. Third, the Court may im agine that having been charged with a technical
error of this nature, our technical team immediately re-examined its work. They could find no error.
Indeed, in the construction of the Honduran provi sional equidistance line, the low-tide line on the
relevant features was used as the base points fo r constructing the provisional equidistance line.
Now, without having a specific example of error, we can only assume that the criticism mounted by
Nicaragua is a result perhaps of a mistaken impr ession or interpretation of the symbols used on
modern nautical charts, and this was elaborated by Professor Greenwood on Monday (CJG 21-22).
127. The second criticism levied at the Honduran provisional equidistance line concerns its
first segment. This first segment of the provisional equidistance line is a straight line segment of
about 14.8nautical miles. It extends in an east-south-east direction from the mainland and it
extends to a point (14°57'23.9"N, 82°53'31.4" W) that is a trijunction point that is equally
distant from BobelCay, EdinburghCay and the point fixed by the 1962Mixed Commission.
128. Now, Nicaragua complains that this is not a true application of the equidistance
methodology, but it fails to explain. All Honduras has done is to simplify the equidistance line that
extends from the mouth of the river to that point. The fact is that to determine an equidistance line
turning point, three base points on geographic features are required. It is possible to use the infinite
similarly placed base points on both sides of the Rio Coco for this purpose, which would result in a
multitude of turning points before the provisional equidistance line turned and reached the vicinity
of the first turning point, which it would do in all events. The method Honduras has employed is
simply to simplify that first segment by identif ying the point that is equidistant from Honduras’s - 26 -
Bobel Cay, Edinburgh Cay in Nicaragua, and a common fixed point, the 1962 Mixed Commission
point.
129. The third criticism levied by Nicaragua is that the provisional equidistance line is based
too much on base points located on small islands a nd not on mainland points. The answer to that
simply is that the small islands of the Parties ar e territorial points, they have a baseline from which
the breadth of the territorial sea is measured, and the provisional equidistance line is to be
developed from the baselines of the two coastal Stat es. The provisional equidistance line, as such,
is the provisional equidistance line, as such The objection is more a comment by the spokesman
that he does not like what the provisional equidistance line looks like, and would wish to argue that
its characteristics should be addressed in decidi ng on the choice and the application of a
delimitation method.
2. The base points
130. Now, in any examination of the provisional equidistance line, the first question to be
decided concerns the base points to be used.
131. Honduras and Nicaragua are adjacent States, and the land boundary meets the sea at the
mouth of the Rio Coco. Because of the eastward pr ojection of the cape, except at the initial stage
on either side of the tip of the cape, which we know constantly changes its shape, points on the
mainland on either side of the Rio Coco soon fall aw ay. But we have just described one technique
that can be used to overcome that problem and there are others. Nonetheless, Nicaragua asserts
that it is impossible to employ the equidistance met hod in this case. It says at paragraph 82 of its
Memorial that “the technical method of equidistance is not feasible”. Honduras disagrees with that
contention.
132. The base points that are used in the construction are very clear. A map of the area, with
the base points highlighted, is now shown (figure20). After Cabo Gracias a Dios, they are
Bobel Cay, Port Royal Cay and South Cay on the Honduran side, and EdinburghCay and
Edinburgh Reef on the Nicaraguan side. We can see two other features there ⎯ Hall Rock on the
Honduras side and Cock Rock on the Nicaraguan side. They are present, and arguably they might
serve as base points, but as one appears to be covered at high tide, Honduras has chosen not to - 27 -
include them as base points in this analysis ⎯ this hypothesis of what a provisional equidistance
line might look like.
133. The features on the Honduran side are islands, as ProfessoS r ands and
ProfessorQuéneudec have demonstrated. Nicaragua has not contested this. They are small but
substantial features and they are backed up by a number of Honduran reefs and cays that could be
used as base points if these islands did not exist.
134. On the Nicaraguan side the controlling base points for the provisional equidistance line
are on Edinburgh Cay and Edinburgh Reef, which, relatively speaking, are somewhat isolated from
other Nicaraguan islands. This selection of the Nicaraguan base points may be generous,
particularly in so far as drying features shown on the reef are concerned. Nicaragua has made no
effort to explain these features to the Court, and Honduras has no independent evidence of their
characteristics. Thus, we are left with only th e appearance of these features on modern nautical
charts. In all events, these features on the Nicara guan side are smaller than those on the Honduran
side and whether they are islands in a legal sense is an open question. However, since again this is
an exercise ⎯ an hypothesis ⎯ we will give Nicaragua the bene fit of the doubt and use them as
Nicaraguan base points to construct the provisional equidistance line.
3. The resulting provisional equidistance line
135. On this basis then, we may determine the provisional equidistance line that is now being
shown on the screen (figure21). It should be noted immediately that this entire provisional
equidistance line falls on the southern side of the tr aditional line. This is simply a fact that arises
because the Honduran islands are closer to 15° N latitude than the Nicaraguan features.
4. Territorial sea/EEZ divisions of the provisional equidistance line
136. From point1, the provisional equidistance line passes through seven other turning
points before reaching 82º W longitude.
137. The first segment from CaboGracias aDi os out to point1 divides the respective
territorial seas of the Parties which extend from the mainland before that segment reaches into a
pocket of exclusive economic zone; in other words, that first segment is primarily a territorial sea
boundary. - 28 -
138. From point 1 to point 2 the provisional equidistance line proceeds easterly, it exits that
pocket of exclusive economic zone, and becomes agai n a territorial sea dividing line. Point2 is
equidistant from two points on Nicaragua’s Edinburgh Cay and one point on Honduras’s
Bobel Cay.
139. From point2 to point3 the provisional equidistance line continues eastward as a
territorial sea dividing line. Point 3 is equi distant from Honduras’s Bobel Cay and Port Royal Cay
and a point on Nicaragua’s Edinburgh Reef. From point3 to point 4 the provisional equidistance
line continues eastward as a territorial sea boundary. Point4 is equidistant from Honduras’s
Port Royal Cay and South Cay and Nicaragua’s Edinburgh Reef. At point 4, the relative eastward
position of Honduras’s South Cay, as compared to Ni caragua’s Edinburgh Reef, begins to push the
provisional equidistance line south-eastward.
140. From point4 to point5 the provisional equidistance line continues to be within
12nautical miles of Honduran a nd Nicaraguan base points, and thus most of that segment is a
territorial sea dividing line. But after this, th e line segments connecting points 5 through 8 divide
the exclusive economic zone. And those turning points are equidistant from features on
Honduras’s South Cay and Nicaragua’s Edinburgh Reef.
141. As was pointed out before, more that 80percent of the provisional equidistance line
shown here limits the territorial sea of Honduras fr om extending for a full 12nautical miles. In
other words, more than 80percent of the singl e maritime boundary that has been brought to the
Court concerns primarily the division of the territorial sea of Honduras and Nicaragua.
5. Comparison of the provisional equidistance line and the traditional line
142. The traditional line claimed by Honduras is more favourable to Nicaragua than the
provisional equidistance line. (Figure 22.) We are now just highlighting the comparison between
those two. We can see 1,775 km 2would be attributed to Honduras by the provisional equidistance
line south of the traditional line.
143. Thus, certainly from Honduras’s perspec tive, there is nothing unsuitable about the
provisional equidistance line itself. - 29 -
6.The eastern end of the provisional equidistance line would cut-off the extension
seaward of Nicaragua’s coastal front
144. The second notable feature of the provisional equidistance line is the change in the
general orientation from an eastward-running line to a south-eastward-running line caused by the
influence of Honduras’s South Cay. (Figure 21.) Because Honduras’s South Cay and Nicaragua’s
Edinburgh Reef are the final two base points, and because South Cay is further east, its influence in
the application of the equidistance method is to push the provisional equidistance line to the
south-east. In these geographic circumstances this in fluence continues for some distance, at least
until the 82nd meridian.
145. The situation is somewhat reminiscent of the position of Fasht al Jarim in the Qatar v.
Bahrain case. On the figure now on the screen (figure 23) you can see the amount of maritime area
that would have been awarded to Bahrain if F ashtalJarim had been used as a base point in
applying the equidistance method. In that case, the Court applied the provisional equidistance line
in the portions of that delimitation associated with the territorial sea, but noted that the position of
Bahrain’s Fasht al Jarim in the outer sector ⎯ the exclusive economic zone sector ⎯ as compared
to the points on Qatar’s coast, caused the provision al equidistance line to swing too much toward
Qatar. Thus, the Court determined not to use Fasht al Jarim as a base point.
146. Honduras is not here to argue whether South Cay should be given no effect or one-half
effect or full effect because we are satisfied w ith the traditional line that Honduras believes is an
equitable boundary between the Parties. However, should the Court decide instead to employ the
equidistance method, Honduras believes that in accordance with Article 15 of the
1982Convention, there are no speci al circumstances that call for adjustment of the provisional
equidistance line where it serves as the territorial sea boundary between the two States; however,
Honduras appreciates that some adjustment of the provisional equidistance line may be called for in
the seaward exclusive economic zone sector be cause of the relative location of Honduras’s
South Cay.
147. This examination of the provisional equidistance line demonstrates conclusively that the
Honduran position is neither aggressive nor designed to maximize Honduran interests. Indeed, the
opposite is true. The traditional line falls on the Hon duran side of the provisional equidistance line - 30 -
throughout its length. It is hard to understand how the traditional line is not an equitable boundary
in light of the geographic circumstances.
148. Now before concluding this discussion, we take note that Nicaragua has not shown the
Court a provisional equidistance line, based on its position that the disput ed islands belong to
Nicaragua. Nicaragua has said that it is impossible to employ the equidistance method in this case,
even though it has referred to median lines in c onnection with its analysis of where the Court
should place the seaward fixed starting-point for this delimitation. In the absence of a presentation
by Nicaragua we undertook to show that line, and it was included in the presentations by
ProfessorGreenwood and ProfessorDupuy on maps CIJ-20 and PMD-3. Unfortunately, in our
haste, those figures ⎯ which are the same ⎯ are an error and we apologize to the Court and to the
Nicaraguan delegation. We would ask that those ma ps be disregarded and, should there be further
reference to this demonstration, we hope it w ill address the figure that we are now putting on the
screen, figure 24, which we will stand behind. This figure corrects the failure on the earlier figure
not to use Honduras’s Banco Cabo as a base point in the hypothesis, and the failure not to use
low-tide features on the northern side of Media Luna in this construction ⎯ in this hypothesis ⎯ to
the advantage of Nicaragua. As you can see, in this construction ⎯ using the same methodology
that Honduras used for the starting first segment ⎯ the line will leave the mainland in an eastward
direction, then it will turn sharply north, it will run west of the islands that Nicaragua has placed in
dispute, the line would then turn east running north of the disputed islands, running along about 15°
30'N latitude and then it would continue. Now, why has Nicaragua not shown this line to the
Court if it believes it is sovereign over the islands? It truly cannot be that it believes that it is
impossible to apply the equidistance methodology in this situation. Perhaps one reason is that
Nicaragua knew it could not support a claim to the islands that it would have to use as base points
in an equidistance line analysis. Perhaps a second reason is that, as this line makes very clear, the
islands that Nicaragua has placed in dispute are off the coast of Honduras ⎯ they are adjacent to
the coast of Honduras. They are not off the coast of Nicaragua. They are not adjacent to the coast
of Nicaragua. Perhaps another reason is the aggressi ve nature when this line is compared to the
line that Nicaragua proposes in this case: the a ggressive nature of the Nicaraguan proposal as
opposed to a provisional equidistance line it might otherwise have supported. So now we place on - 31 -
this graphic the bisector line that Nicaragua prop oses here. As the Court will note, the Nicaraguan
proposal is much more aggressive toward Hondur as than a Nicaraguan, if you will, provisional
equidistance line. This destroys any perspectiv e about the equitableness of Nicaragua’s bisector
proposal, and it is in stark contrast to the Hondur an position that is more generous to Nicaragua
than the provisional equidistance line based on Honduran sovereignty to the islands.
D. The Honduran line has roots in State practice
149. Thus, we can see that a position of maximum advantage for Honduras would be one
based in the equidistance method. However, H onduras in this instance and many other States in
other circumstances have chosen to use lines of latitude, or longitude, to mark their maritime
boundaries. These lines of latitude or longitude may or may not correspond closely to an
equidistance line, particularly where small offs hore features might be involved, but they are
nonetheless utilized, quite often, by States to cons truct equitable delimitations because they are
deemed by those States to reflect the overall geogr aphical relationship and a historical relationship
between two countries.
150. It may be useful to survey briefly the wi despread use of lines of latitude or longitude in
maritime delimitations. A nd we will run quickly through the maps in your folder ⎯ and we will
put them on the screen. These are maps taken again from the International Maritime Boundaries
series of the American Society of International law, showing agreed boundary lines following lines
of latitude or longitude and comparing that, as th ese maps do, with the equidistance line in the
circumstance. These maps are in your folders and full citations are in the prepared statement, and I
will go through these rather quickly.
151. In North America, a line of longitude marks the maritime boundary between Russia and
the United States in the Arctic Ocean (1990) (figure 25) 5.
152. In Middle America, lines of latitude a nd longitude create a st epped boundary between
Colombia and Panama in the Caribbean Sea, a nd a line of latitude marks a segment of their
6
boundary in the Pacific (1976) (figure 26) .
5
International Maritime Boundaries, Vol. I, report No. 1-6.
6Ibid., Vol. I, report No. 2-5. - 32 -
153. We will not stress the boundary betw een Honduras and Colombia (1986) or that
between Costa Rica and Colombia (1977) , because we know Nicaragua objects to those agreed
delimitations, but we can emphasize the recen t boundary (2001) between Honduras and the United
Kingdom in respect of the Cayman Islands that uses a line of latitude in its eastern segment
(figure 27) 8.
154. In South America, it is well known that the boundaries between Colombia and Ecuador
9 10
(1975) (figure28) , the boundaries between Ecuador and Peru (1952) (figure29) , and the
11
boundary between Peru and Chile (1952) (figure 30) are lines of latitude.
155. It also should be recalled, the 1984 ma ritime boundary between Argentina and Chile is
a line of longitude, utilizing as well lines of latitude and longitude in its early section (figure 31) 12.
156. In Africa, we might recall that the bounda ries between Gambia and Senegal are lines of
13 14
latitude (1975) (figure 32) , and that the 2002 boundary between Angola and Namibia (figure 33)
is a line of latitude, and that the boundaries of Tanzania, with both Mozambique (1988)
(figure 34) 15 and Kenya (1976) (figure 35) , use lines of latitude in their seaward sectors.
157. In the Red Sea, Saudi Arabia and Yemen used two connected lines of latitude to define
17
their maritime boundary (figure 36) .
158. And in Europe, we know that the Unite d Kingdom and Ireland used a series of steps
marked by lines of latitude and longitude to defi ne their maritime boundary (1988), the result in
this case being a rough approximation of where an equidistance line would fall (figure37) 18. As
7
Ibid., Vol. I, report Nos. 2-4 and 2-1.
8
Ibid., Vol. V, report No. 2-23.
9
Ibid., Vol. I, report No. 3-7.
10
Ibid., Vol. I, report No. 3-9.
Ibid., Vol. I, report No. 3-5.
Ibid., Vol. I, report No. 3-1.
1Ibid., Vol. I, report No. 4-2.
1Ibid., Vol. V, report No. 4-13.
15
Ibid., Vol. V, report No. 4-7.
16
Ibid., Vol. V, report No. 4-5.
17
Ibid., Vol. IV, report No. 6-16.
18
Ibid., Vol. II, report No. 9-5. - 33 -
well, the Spain-Portugal agreement of 1976 might also be noted, although this is not in force 19.
These lines, which I believe have been referred to as perpendiculars by the Nicaraguan team follow
lines of latitude and longitude (figure 38).
159. Thus, the traditional line that has been applied as a tacit agreement by Honduras and
Nicaragua is a line that has roots in State pr actice. The method employed has proved to be
equitable in many other cases, and there is no r eason to doubt that it may create an equitable
boundary in this case.
E. The Tunisia/Libya precedent
160. As Honduras noted in the Rejoinder, the Tunisia/Libya case is particularly instructive.
It is referred often today in the classrooms as an old case, but there is a lot in that case to be
learned. Now, obviously, the macro-geographic perspectives of the two situations is quite
different, but there is much to be learned by a cl ose examination of the Court’s approach in 1982.
And we will now start a series of sl ides showing that geography of the Tunisia/Libya case
(figure 39).
1n61. Tunisia/Libya, the Court faced a geographical situation in which the land boundary
met the coast at Ras Adjir. Ras Adjir is now highl ighted; it is a cape on the coast of the southern
Mediterranean Sea. (Highlight 39a) The coasts of Tunisia and Libya on either side of Ras Adjir
face northeast into the Mediterranean Sea. (Highlight 39b) Fu rther west along the Tunisian coast,
after the Tunisian island of Jerba, in the Gulf of Gabes, the North African coastline makes a major
change of direction to the north. (Highlight 39c) Besides this geographical setting, the Court, in
that case, faced a set of facts, the essence of whic h being that for many years the Parties in that
case, and the colonial Powers before them, had followed a traditional line of delimitation
approximating a perpendicular to the general directio n of the coast, (Highlight 39d) at least in so
far as the area inshore was concerned. And this included then, as well, substantial oil concession
practice that abutted along the traditional line, at least up to 33º 55' N. (Figure 39e)
162. In the case, Tunisia tried to refashion geography by trying to convince the Court that the
coast made a major change in coastal direction, not in the Gulf of Gabes, as it does and as the Court
19
Ibid., Vol. II, report No. 9-7. - 34 -
so found, but Tunisia argued that the coast made a major change in direction at RasAdjir.
Nicaragua’s argument is just like the Tunisian argument. Nicaragua tries to convince the Court that
Cape Gracias a Dios marks a major change in coast al direction. Tunisia argued that its relevant
coast faced not north-east, but it argued it faced east, forgetting entirely about its northward-facing
coastline west of Ras Adjir at the land boundary terminus. This led Tunisia to argue that the
boundary ought to be the bisector boundary extending at approximately 45° from Ras Adjir. While
Tunisia made other arguments of a geomorphological, geological and historical character consistent
with that theme, it held forth in its submission that the delimitation could ⎯ and here I am quoting
from paragraph15 of the Court’s Judgment where it reviewed the Tunisian submission ⎯ “be
constituted by a line drawn at the Tuniso-Libyan fro ntier” meaning Ras Adjir, but “parallel to the
bisector of the angle formed by the Tuniso-Libyan littoral in the Gulf of Gabes” (Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982 , p.33, para.16; emphasis
added). Tunisia wanted the Court to create a bise ctor, way over there on the western coast of the
Gulf of Gabes, way over to the west of the delimitation area, and then transfer that bisector to
where the land boundary terminus is. Thus, ex actly like Nicaragua does in this case, Tunisia
argued that a bisector should be created, developed from coastal fronts unrelated to the relevant
coasts at the land boundary terminus that faced the area to be delimited. Just as Nicaragua does,
Tunisia built its argument on a major change in direction of the coast of North Africa, but one that
takes place actually a consider able distance from where the Tunisia-Libya land boundary met the
sea.
The Court rejected Tunisia’s argument. The Court said: “in assessing the direction of the
coastline it is legitimate to disregard for the presen t coastal configurations found at more than a
comparatively short distance from [the land boundary terminus], for example the island of Jerba”
(ibid., p. 85, para. 120). The Court was focused on the short part of the coast at the land boundary
terminus.
163. On the screen we are putting up the line that was established by the Court (figure 39f).
The Court adopted the perpendicular to the general di rection of the coast in the vicinity of the land
boundary terminus, a line that was also based in the practice of the Parties. The Court followed
that line until there was reason to deviate from that line. In Tunisia/Libya, there was reason to do - 35 -
so. First, north of 33°55'N, the corresponding practice, the oil concession and the historical
practice, was not evident any longer as it had been in the area south of 33° 55' . Second, because of
the major change in direction in the No rth African coast in the Gulf of Gabes ⎯ not at the land
boundary terminus at Ras Adjir ⎯ the Tunisian coast there then turned inward to again face the
delimitation area. Thus the Court in 1982 abando ned the perpendicular where there was reason to
do so. Where there was no corresponding practice of the Parties for the boundary to follow, and
where the eastward facing coast of Tunisia had now turned toward the area that was to be
delimited, after the major change in direction of th e coast of the Gulf of Gabes. For these reasons
then the Court adjusted the perp endicular line to the east away from the Tunisian eastward facing
coast.
164. Let me just pose a hypothetical question. What if the facts had been the same, that the
coast of North Africa did not make a turn to the north at the Gulf of Gabes, but turned west instead,
away from the area to be delimited? Would th e Court have regarded the perpendicular to the
general direction of the coast any differently? Would the Court have considered the colonial
history or the abutting oil concessions any differently? Woul d the Court have considered the
colonial history or the abutting oil concessions an y differently? Now, of course, we cannot know
the answer to that. Perhaps the only thing for sure we can say that would have been different is that
there would have been no Tunisian coast north of the Gulf of Gabes, no Kerkennah Islands, to
cause the Court to adjust the line that it had started.
165. In the present case, the land boundary meets the sea at the eastern tip of a cape that
protrudes from the midst of the eastward facing coast of Central America. A perpendicular
projected from this eastward facing coastal front approximates a parallel of latitude. The eastward
facing coastal front of Central America does not make a major change in direction until it begins to
do so at Cape Falso. When it does so, the coast of Central America turns away from the area to be
delimited in this case. Thus, from a geographical perspective and from an analysis of coastal
fronts, there is no reason why a boundary that begins as a perpendicular to the general direction of
the eastward facing coast of Central America ⎯ there is no reason why it should turn.
Furthermore, in this case there is no reason to turn the line based in the practice of the Parties or
because of other geographical features. The H onduran line leaves to both sides the islands and - 36 -
rocks belonging to either country, and it reflect s the practice of the Parties eastward to 82°W
longitude undertaken for many years until Nicaragua at a late date changed its position.
F. The Honduran line does not reward a party for a late-coming change of position
166. Let me conclude by saying something about that change of position. The Honduran line
is equitable because it reflects a common practice of the Parties in the maritime area leading up to
approximately 1980. It does not reward the Party with a late-coming change of position, one which
changed long after both countries had claimed and exercised offshore jurisdiction in this area
aligned along the traditional line. It is ironic that Nicaragua says at page33, paragraph2, of its
Memorial, in the chapter entitled “The Relati ons between Nicaragua and Honduras (1963-1979)”
that it says “witnessed the best relationship between Honduras and Nicaragua in all of the
XXthcentury”. One may note that this pe riod takes place immediately following the
November1960 Judgment of the Court in the King of Spain Award case, and, of course, it is this
same period that witnessed the alignment of oil concessions along the traditional line. But
Nicaragua has chosen to disavow what has gone before. As a political matter that may be its right,
but international law transcends such political changes.
Madam President, Members of the Court, this concludes my presentation. I would now like
to say just a short word to conclude the first round for Honduras.
First, I have been asked by the Agent of Honduras to express to the Court ⎯ for purposes of
emphasis and clarity ⎯ that the observation set forth in his opening statement remains firm: that is
to say, that Honduras will reflect further on its final submissions.
Second, it remains for me on behalf of all of the Honduran team to express to the Court our
highest esteem and gratitude for your patience and attention to the position of Honduras.
Madam President, that completes the presentation of Honduras in this first round.
The PRESIDENT: Thank you very much, Mr. Colson.
I shall now give the floor to Judge Keith and Judge ad hoc Gaja, who each have questions
for the Parties. Judge Keith. - 37 -
Judge KEITH: Thank you, Madam President . My question is for Nicaragua. What
consequences for the location of a single maritime boundary would Nicaragua draw were Honduras
to have sovereignty over some or all of the islands and maritime features which are located north of
parallel of latitude 15° N. Thank you, Madam President.
The PRESIDENT: Thank you, Judge Keith. Judge Gaja, you have the floor.
Judge GAJA: Thank you, Madam President. I would like to address the following question
to both Parties. May Logwood Cay and Media Luna Cay be currently regarded as islands within
the meaning of Article 121, paragraph 1, of the Un ited Nations Convention on the Law of the Sea?
Thank you.
The PRESIDENT: Thank you, Judge Gaja. Th e written text of these questions will be sent
to the Parties as soon as possible. The Parties may decide, if they deem it convenient, to answer
during the second round of oral argument. It will also be possible for them to provide written
responses to the questions within one week as from the closure of the present oral proceedings, that
is to say, by Friday 30 March 2007 at the latest. In this latter case, any comments that a Party may
wish to make, in accordance with Article72 of th e Rules of Court, on the responses by the other
Party must be submitted not later than Tuesday 10 April 2007.
This marks the end of today’s sitting. I thank each of the Parties for the statements made in
the course of the first round of oral argument. The Court will meet again on Monday 19March
from 3 p.m. to 6 p.m. and on Tuesday 20 March from 10 a.m. to 1 p.m. to hear the second round of
oral argument of the Republic of Nicaragua. At the end of the sitting on Tuesday, Nicaragua will
present its final submissions.
The Republic of Honduras will then present its oral reply on Thursday 22 March from 3 p.m.
to 6p.m. and on Friday 23March from 10a.m. to 1p.m. At the end of the sitting next Friday,
Honduras will present its final submissions.
Therefore, each Party has at its disposal a total of two full sessions of three hours for the
whole of its further oral reply. Pursuant to Ar ticle60, paragraph1, of the Rules of Court, these
next oral presentations must be as succinct as possible. The purpose of the second round of oral - 38 -
argument is to enable each of the parties to repl y to the arguments advanced orally by the other
party, and must not accordingly constitute a repetition of earlier arguments. The Parties will decide
how much of the time allotted to them they need for this further purpose.
The Court now rises.
The Court rose at 11.45 a.m.
___________
Audience publique tenue le vendredi 16 mars 2007, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président, en l'affaire de la Délimitation maritime entre le Nicaragua et le Honduras dans la mer des Caraïbes (Nicaragua c. Honduras)