Audience publique tenue le jeudi 15 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 Hondur

Document Number
120-20070315-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2007/9
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

CR 2007/9

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2007

Public sitting

held on Thursday 15 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 jeudi 15 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. Professor Sands.

Mr. SANDS: Thank you very much, Madam President, Members of the Tribunal . . .

The PRESIDENT: Tribunal? Are we Members of the Tribunal?

Mr. SANDS: I apologize. I have written that word in error and I hope you will forgive me.

THE CONDUCT OF THE P ARTIES II ⎯ THE 15TH PARALLEL

I. Introduction

1. Madam President, Members of the Court, on Tuesday I addressed Honduras’s effectivités

in support of its sovereignty argument on the islands that lie north of the 15thparallel. Today, I

will address a closely related issue: the c onduct of the Parties recognizing and accepting the

15thparallel as the line that divides the maritimespaces of the Parties. I use the words “closely

related” because it will be apparent that conduc t in relation to the islands and the maritime

boundary are closely, even intimately, connected. Many of the acts expressing sovereignty over

the islands also constitute conduct recognizing the 15thparallel as the boundary. That is

particularly true for acts relating to oil explotion, such as the construction of the antenna on

Bobel Cay, erected under the concession granted by Honduras to Union Oil in 1967. It is also true

for the fisheries licences that provided the co mmercial rationale for the fishermen to base

themselves on Savanna Cay and othe r islands and cays and who e ngage in fishing activities down

to the 15th parallel but not beyond.

2. My presentation this morning focuses on the conduct of Honduras and Nicaragua mainly

in relation to the two main elements of conduct ⎯ oil concessions and fisheries ⎯ although I will

touch also on the question of naval patrols. I can briefly summarize the arguments we made in our

written pleadings, before turning once again in detail to the actual evidence that is before the Court.

3. In our submission, the Parties’ conduct demonstrates the existence of a tacit agreement

that the 15thparallel has long been treated as the line dividing the maritime spaces. There is no

ambiguity in the mutual practice in granting oil concessions from as far back as the mid-1950s,

through the 1960s, into the 1970s and even beyond. The conduct in relation to oil concessions is

crystal clear: both sides have treated the 15th parallel as th e dividing line of their respective areas - 11 -

of sovereignty and exercise of jurisdiction. Th ere is no evidence before the Court that Honduras

has ever granted a concession that goes south of th e 15th parallel. There is no evidence before the

Court that Nicaragua has ever granted a concession that goes to the north of the 15th parallel. Last

Thursday, Professor Remiro Brotóns conjured up wh at we thought was the rather novel idea of the

open-ended oil concession, the oil concession that has no limit. Professor Remiro Brotóns referred

to concessions with a northern limit that was “ouverte et indéfinie” 1. On our side of the table we

have been debating what the word “indéfinie” means, is it “indefinite” or is it “undefined”? Not

much turns on it, but it seems to us that the only thing that is open-ended and undefined or

indefinite in this case is Nicaragua’s capacity to conjure up new legal arguments. Everyone in this

room knows that there is no such thing as an open- ended oil concession. I will show that all of

Nicaragua’s concessions in the area in question ⎯ every single one of them ⎯ extends precisely to

the 15thparallel and no further north. The practice has been absolutely consistent.

Professor Remiro Brotóns also suggested that th ese concessions represented nothing more than the

actions of private oil companies. The truth is that all of the concessions ⎯ every single one of

them ⎯ were granted in the knowledge of the other Pa rty’s conduct. There is no evidence of any

reservation of rights, or of protest. And exactly the same may be said in relation to the fisheries

licences and concessions that have been granted. Honduras has introduced several licences, as well

as those documents known as bitácoras, that show the significance of the 15th parallel. Nicaragua

has introduced no documents. No le gislation. No licences. No bitácoras. Nicaragua has

introduced nothing to show the grant of any fishing rights beyond the 15thparallel, at any time,

ever; nothing in documentary form. How curious it is that a State that argues for rights north of

the 15th parallel has been unable to produce a single contemporaneous document over a period of

50 years in relation to that area.

4. The relevant documentary expressions of c onduct in the area north of the 15th parallel are

exclusively Honduran. The Court will have noted that, in its Memorial, Nicaragua made no

reference to oil concessions or fishing licences. The reason is now clear: they had, apparently,

none which could support their case. And none were introduced in the Reply. I want to be clear

1
CR 2007/4, p. 25, para. 38. - 12 -

also about the nature of our case on the law, whic h Professor Dupuy talked about yesterday, and I

simply refer to his arguments. It is not our assertion that concessions and oil wells and fishing

licences are in themselves to be considered as relevant circumstances justifying the adjustment or

shifting of a provisional delimitation line; it is not just that. Rather, as the Court put it in its

2002Judgment in the Cameroon v. Nigeria case, “the existence of an express or tacit agreement

between the parties on the siting of their respective oil concessions may indicate a consensus on the

maritime areas to which they are entitled” ( Land and Maritime Bounda ry between Cameroon and

Nigeria (Cameroon v. Nigeria), Judgment, I.C.J. Reports 2002, p. 447, para. 304). In that case, the

Court concluded that there was no consensus or tacit agreement. But the facts in that case ⎯ as

well as others like the Gulf of Maine case ⎯ were rather different from this one. In those cases

there was no example akin to the two Coco Mari na oil concessions that were granted north and

south of the 15thparallel, respectivel y by Honduras and Nicaragua. And in Tunisia/Libyan Arab

Jamahiriya, the mutual practice that was referred to by the Parties was rather shorter in time and

not quite as consistent. These concessions, north and south of the 15th parallel, reflect a geological

reality that straddled ⎯ in the case of Coco Marina ⎯ the consensually recognized boundary

across the 15thparallel. To take the words of this Court, they “indicate a consensus” and
2
Nicaragua has been notably defensive about Coco Marina in its written pleadings .

II. Oil concessions

5. So, let me turn to the oil concessions. The concessions reflect a perfect agreement

between the Parties as to the location of their northern and southern oil concession boundaries.

Professor Remiro Brotóns showed you seven plates during his presentation last week . Every one

of them was prepared for the purposes of this oral hearing; none of them was contemporaneous.

(Figure 1) On the screen you can see one example; it is ARB2/2, and it shows, in blue, the

apparent concessions for Union II, Union III and Un ion IV. On this graphic, no northern limit is

shown to any of these concessions. The message it seeks to convey is that Nicaragua granted

concessions that went to the north of the 15th parallel ⎯ we have added a red line showing where

2
See RN, para. 5.26.
3Nicaragua, judges’ folder, 8 March 2007, plates ARB2/1-ARB2/7. - 13 -

the 15thparallel is located ⎯ or perhaps could have gone to the north of the 15thparallel.

PlateARB2/2, like each of the other six plates that Professor Remiro Brotóns and some of his

colleagues put up, is manifestly inaccurate. It is not an accurate representation of the facts or of the

evidence that is before the Court. What counsel for Nicaragua did not do was take you to the plates

which the Government of Nicaragua itself had prepared before this case came to Court, before the

Application was filed. And they tell a rather different story.

6. On the screen now (figure2) you can see a graphic entitled Mapa de Concesiones

Petroleras (RH, plate 32). This was prepared in March 1969, not by Honduras, not by any counsel,

not by a private company but by the Directorate General of Natural Resources of the Nicaraguan

Ministry of Economy, Industry and Commerce. It is an official map, it is authoritative map, it is an

expression of public authority. What does it show ? The concessions for Union II, III and IV

followed the 15th parallel. It does not show ope n-ended concessions. You cannot get much more

authoritative than this.

7. And now on the screen (figure3) is an extract from a report published by another

Nicaraguan governmental body, the Instituto Nicar agüense de Energía, published in June 1994 4 ⎯

25years later. The Instituto is a public body th at regulates and supervises the energy sector in

Nicaragua. This report shows the oil concessions th at were available as at 1986. And, once again,

you will see that the northern limit follows the 15th parallel boundary, as it did 25 years earlier, in

1969; it does not show any extension north of th e 15thparallel or any availability north of the

15th parallel ⎯ or any reservation of rights to be permitted to go north of the 15th parallel. There

are no open-ended concessions here. And you will see, in close up, the Coco Marina area is very

clearly marked. It goes north and south of the 15th parallel, but there is no suggestion that the area

to the north is available.

8. Now on the screen (figure 4) you see an extr act from the report published by the Instituto

5
Nicaragüense de Energía in June 1995 . It is the following year but it shows the oil concessions

available in 1995 ⎯ the year of publication. The colours have changed, but the line has not.

Curious indeed that, as recently as 1995, a State that believes it has sovereignty over the islands

4
RH, plate 33, p. 1.
5RH, plate 33p 2. - 14 -

north of the 15thparallel and s overeign rights over the appurtena nt maritime spaces, should not

have offered any oil concessions in those areas, or indicated its sovereignty over those areas, or

indicated that those areas were in dispute or s ubject to any reservations. The Nicaraguan practice

in 1995 was as it was in 1969. You have got befo re you evidence of three decades of consistent

practice.

9. Why were you not shown these plates by the Nicaraguan counsel, prepared by the

Government of Nicaragua itself? We respectfully suggest that the question admits of only one

possible answer.

10. It is appropriate to look in a little more detail now at the concessions. I am going to try

to proceed systematically and fairly. First, we will look at the concessions granted by Honduras,

which treat the 15thparallel as the southern boundary. Second, we will consider the concessions

granted by Nicaragua, which treat the 15th parallel as the northern boundary. Third, we will look

at the concessions that have been granted in as sociation, jointly or collaboratively, by the two

Governments, where a potential oil and gas field stra ddles the 15th parallel. It is very difficult to

conceive of many governmental acts that could be more indicative of agreement as to the location

of a maritime boundary than the simultaneous gran t of public concessions for an oil field which

straddles the 15th parallel.

11. Let us begin with the area to the north of the 15thparallel. In 1955 Honduras initiated

the process of granting oil concessions in that area. By 1980 no less than 21 concessions had been

granted: it is quite a lot of concessions . Each has been identified in Honduras’s

6
Counter-Memorial . A copy of each concession has been made available to the Court and to

Nicaragua. There is no evidence before the Court to show that Nicaragua has ever objected to any

of these 21concessions. Information on each and every one was published in Honduras’s

La Gaceta, the official journal. All the relevant information has long been in the public domain. In

its written pleadings Nicaragua did not claim that it was unaware of the concessions. Now it seems

to have changed direction. Again. Professor Remiro Brotóns claimed that Nicaragua could not

7
have known of all of these concessions . With great respect, that is a most surprising suggestion,

6
CMH, paras. 6.24 to 6.28 and related annexes.
7CR 2007/4, p. 34, paras. 76-77. - 15 -

and one that is not supported by any evidence. The information was publicly available. We may

recall that in its Judgment of 1951 in the Fisheries case this Court rejected the argument by the

United Kingdom Government that the Norwegian sy stem of delimitation was not known to it. The

Court noted that the United Kingdom was a maritime power, a coastal State on the relevant sea ⎯

the North Sea ⎯ greatly interested in the fisheries in the area in question. “[T]he United Kingdom

could not have been ignorant of the [Norwegian] Decree of 1869”, the Court ruled. “Nor, knowing

of it,” added the Court, “could it have been under any misapprehension as to the significance of its

terms” ( Fisheries (United Kingdom v. Norway), Judgment , I.C.J. Reports 1951 , p.139) ⎯ no

misapprehension as to the significance of its terms. We say, Nicaragua could not have been

ignorant of the oil concessions or under any misappreh ensions as to their terms, especially over so

long a period of time as pertains in this case.

12. Nicaragua has failed to explain its argument as to lack of knowledge. Counsel for

Nicaragua referred to a passage in this Court’s Judgment in the Pulau Ligitan and Pulau Sipadan

8
case, at paragraph 48 . But that passage does not assist Nicar agua. In that case Indonesia argued

that a map attached to an Explanatory Memorandu m that had been sent by the Dutch to the British

was part of an agreement within the meaning of the 1969 Vienna Convention on the Law of

Treaties, and, very understandably, the Court did not buy that argument. In this case that is not the

argument we are making. We simply say, that ov er a very lengthy period of time, after Nicaragua

had implemented the 1960 Judgment of this Cour t, Honduras adopted a pattern of behaviour in

respect of which Nicaragua had knowledge but to which it did not object. Coupled with

Nicaragua’s own practice in relation to oil con cessions, its silence can only be taken as expressing

consent to Honduras’s actions. Such silence reflect s, at the very least, a tacit agreement to which

Nicaragua has lent its active support or to wh ich it has acquiesced. Our argument goes no further

than that.

13. What has Nicaragua tacitly agreed to? You can see that graphically illustrated on the

screen (figure5). That is a larg e version of plate 11 of the Honduran Counter-Memorial. That

plate shows the concessions, all of them which have been granted since 1955. It is taken from a

8
CR 2007/4, p. 33, para., 75. - 16 -

chart originally produced in 1977 by an organiza tion called Petroconsultants, taking into account

the official petroleum concession map of Honduras. The plate identifies blocks in three categories.

First, in light green, are blocks that are held in national reserve; second, in darker green, are blocks

that are free; and third, in purple, are those blocks in use.

The PRESIDENT: Mr. Sands, could you help us identify this map, or chart, in our files? It

may be that we do not have it.

Mr. SANDS: It ought to be chart No.5. I apologize. It should be marked on the bottom

right-hand corner ⎯chart No. 5 (PS2-5).

The PRESIDENT: This, now the one behind you is 5 ⎯ something else was previously

showing. Do you want to start the section again and then we will follow you better?

Mr. SANDS: Thank you very much. The first map that I had shown was in fact the overall

picture and this focuses in on the area that is in question. What you can see on this map, which

dates back to 1977, is concessions in three categori es of colour. In light green, blocks which are

held in national reserve, in dark er green, blocks which are free ⎯ have not yet been awarded ⎯

and, in purple, blocks which are in use. And the blocks which are in use, as well as the blocks in

national reserve, follow precisely the 15th parallel. The map shows clearly that Honduras’s islands

fall within some of those blocks, as I explained y esterday. And this confirms, we say, Honduras’s

sovereign intent and actions over those islands . Nicaragua has never objected to Honduras’s

concessions. It did not reserve its rights in rela tion to these concessions. It did not object to the

concessions that included the insular territory of PalodeCampeche, as well as the other islands

located north of the 15th parallel, to which the Constitution of 1957 explicitly referred as belonging

to Honduras.

14. These Honduran concessions were granted on the basis that the 15thparallel was the

southern boundary in the sea. Honduras’s concessions explicitly refer to the line of 14º 59' 08" as - 17 -

9
the southern limit of the concession . ProfessorRemiro Brotóns told the Court that none of the

concessions that refer to that limit “ne précisai ent une quelconque relation avec la frontière

10
maritime des Parties” . Now I cannot have misheard him, because he said it not once but twice:

“aucune des concessions honduriennes ne précise que sa limite sud coïncide avec la frontière

maritime avec le Nicaragua” 1. And the distinguished Agent of Nicaragua said the same thing:

“The Honduran concessions... had no indication that their southern limit coincided with the

maritime limit with Nicaragua.” 12 These statements, I am afraid, are factually wrong. On the

screen is one example of a Honduran concession that expressly refers to the 15thparallel as the

southern limit and boundary with Nicaragua (figure 6) 13. It concerns the 1967 concession granted

by Honduras to the “Pure Oil Company of Hondur as, Inc.” –– it is the Coco Marina concession ––

to explore and exploit oil in lot or block8, th at is the area that comprises the islands. It was

published in La Gaceta of Honduras on 17April1967. And I want to read out the relevant

extracts, and you can then follow the lines of the concession on the map that is projected. This is of

course the Coco Marina block, and I am going to read from the text:

“then to the East to meridian 82º10'W est longitude; then to the South until the

maritime border between Honduras and Nicaragua; then to the West following that
borderline until it intersects with the coast in the estuary of RiverWansCoco or
Segovia which is the natural limit betw een Honduras and Nicaragua, and from the

point we follow the coastline setting a northw est direction of 83º10'West longitude
which is the original starting point of this lot. The area of this block encompasses a

total of TWO HUNDRED AND FIFTEEN THOUSAND AND FOUR POINT NINE
HECTARES (215,004.9).”

So you have got a concession that refers no less than threetimes to the border between the two

countries. And we invite the Court to read all of the primary material with great care, as we know

9Certification of Decree Concerning an Oil Concessi on granted to “Pure Oil Company of Honduras, Inc.”,
published in the official gazette of H onduras No. 19.140 of 17 April 1967, CMH, Vol. 2, Ann. 192. See also extensions
thereof at CMH, Vol.2, Anns.197 and 200. Certification of Decree Concerning an Oil Concession granted to “Signal
Exploration (Honduras) Company”, publis hed in the official gazette of H onduras No.19.111 of 9March1967, CMH,
Vol. 2, Ann. 108 (parallel 15º00); Certification of Decr ee Concerning an Oil Concession granted to “Texaco Caribbean,

Inc.”, published in the official gazette of Honduras No.23.233 of 17October1980, CMH, Vol.2, Ann.114
(parallel 15º00); Certification of D ecree Concerning an Oil Concession granted to “Lloyd Honduras, Inc.”, published in
the official gazette of Honduras No. 19.668 of 11 January 1969, CMH, Vol. 2, Ann. 194 (parallel 15º00); Certification of
Decree Concerning an Oil Concession granted to “Texaco Cari bbean, Inc.”, published in the official gazette of Honduras
No. 22.313 of 4 October 1977, CMH, Vol. 2, Ann. 201 (parallel 15º00).
10
CR 2007/4, p. 34, para. 78.
11
Ibid., p. 27, para. 48.
12CR 2007/1, (figure 6) p. 42, para. 94 (B).

13See another example of such a concession in CMH, Vol. 2, Ann. 107. - 18 -

it always does, and to form its own view on these concessions. Now we appreciate that this is a

very laborious and time-consuming task, but it is a necessary and important one in proceedings

such as these.

15. Nicaragua has adopted a similar approach in its treatment of witness statements. Counsel

14
explained that Nicaragua “a renoncé à se la ncer dans un concours d’affidavits” . Well, that is

Nicaragua’s right. But the witness statements are evidence before the Court, they have been sworn

on oath, and they have not been contradicted by evidence from Nicaragua. So all the witness

statements stand, as uncontradicted evidence. Let me take one example. The witness statement of

15
Mr.Rafael Leonardo Callejas Romero, at Annex247 . He is not just another person, as counsel

for Nicaragua described him 16. From 1972 to 1980 he was Under Secretary of State and Secretary

of State in the Honduran Ministry of Natural Resources, precisely in the period of time when the oil

concessions were granted. And he then went on to become President of Honduras. As he said in

his statement, the oil concessions were granted against the background of what he understood to be

a mutual understanding of Honduras and Nicaragua, th at the 15thparallel was the location of the

maritime boundary between the two States. Now that is compelling evidence. It stands

unchallenged before this Court. Has Nicaragua put any witness statement from its own Minister at

the time to contradict the statement of Mr. Callejas Romero? It has not.

16. What about Nicaragua’s concessions? The Memorial maintained a conspicuous silence.

A reader of that document would have been blissf ully unaware that any oil activity had ever taken

place south of the 15thparallel, would also have been unaware that there had been any fisheries

activities south of the 15thparallel or indeed an y other activity apart from what paragraph15 of

Chapter II of the Memorial referred to as traditiona l activities of Sambo Miskito Indians. And that

silence resonates. The fact is Nicaragua has ne ver granted an oil concession in any area north of

the 15thparallel, and it has never sought it. It makes no claim that it has ever done so. No

evidence before the Court from Nicaragua to show that it ever treated any area north of the

14
CR 2007/4, p. 35, para. 81.
15
RH, Vol. 2, Ann. 247.
1CR 2007/4, p. 35, para. 80. - 19 -

15th parallel as one in which it was even entitled to grant any oil concessions. The two reports of

the Instituto Nicaragüense de Energía that I took you to makes that very clear . 17

17. So it fell to Honduras to introduce th e evidence on Nicaragua’s oil concessions. These

are depicted at plate 12 of the Honduras Counter-Memorial, which you can now see on your screen

in large scale. This plate shows the concessions granted by Nicaragua, and here you ought to have

a document that is PS2-7 (figure 7), granted by Nicar agua for the exploration or exploitation of oil

and gas within the territory of Nicaragua, in19 79, on the basis of another synopsis prepared by

Petroconsultants. In cream colour are concessions where petroleum rights have been granted; in

light orange are areas where replacement licences have been granted; in deeper orange are areas

where rights have been relinquished; and in pink are areas where applications were pending. Like

the earlier plate of 1969 produced by the Governme nt, to which I took you earlier, this plate

demonstrates clearly that Nicaragua never went north of the 15th parallel. You’ve got consistency:

69, 77, 86, 95. Nicaragua’s oil concessions are all located south of the 15thparallel. Nicaragua

has not challenged the accuracy of this plate. A nd we say it cannot do so: the evidence before the

Court is very clear.

18. These concessions apparently have given rise to a certain difficulty for Nicaragua’s

counsel. Several of the Nicaraguan concessions refer explicitly to the 15th parallel as the northern

limit18. And that has led their counsel to put togeth er what we thought were some quite interesting

arguments. Professor Remiro Brotóns told the Court that the references to the 15th parallel in the

Nicaraguan concessions (as well as those of Hondur as) “suggèrent que les dispositions concernant

19
ces concessions furent préparées dans les bureaux des entreprises concessionnaires” . Now, when

he said that I thought I might have misunderstood him, since he seemed to be saying that the

17
See RH, paras. 4.27-4.28. The reports of the Instituto Nicaragüense de Energía are at RH, Vol. 2, Ann. 255.
18See e.g. Certification of Decree Concerning an Oil Concession granted to “Western Caribbean Petroleum

Company”, official gazette of Nicaragua No.117 of 29 May 1967, CMH, Vol.2, Ann.203; Certification of Decree
Concerning an Oil Concession granted to “Western Caribbean Petroleum Company” and “Occidental of Nicaragua, Inc.”,
official gazette of Nicaragua No.161 of 18 July 1968, CM H, Vol.2, annexes 115-116; Certification of Decree
Concerning an Oil Concession granted to “Western Caribbean Petroleum Company” and “Occidental of Nicaragua, Inc.”,
official gazette of Nicaragua No.272 of 28 November 1974, CMH, Vol.2, Ann.117; Certification of Decree
Concerning an Oil Concession granted to “Mobil Exploration Corporation”, official gazet te of Nicaragua No.202 of
4 September 1968, CMH, Vol. 2, Ann. 202; Certification of Decree Concerning an Oil Concession granted to “Western
Caribbean Petroleum Company”, official gazette of Nicarag ua No.259 of 14 November 1975, CMH, Vol.2, Ann.206.
Some of these concessions were later extended.

19CR 2007/4, p. 27, para. 47. - 20 -

concession limits were not the responsibility of Nicara gua. But then he said that the oil companies

that had sought the concessions “pouvaient définir à discrétion les limites de l’aire prétendue là où

elles le considéraient opportun. . . . L’admini stration nicaraguayenne accorda donc les concessions

sollicitées.”20 Now, that truly is a remarkable statemen t. It seems to say that the oil companies

could act at will. The reality is rather differe nt, as the evidence shows. I refer you to the

1994Report of the Instituto Nicaragüense de Ener gía which makes clear how different the true

story is. That is Annex255 and at page6, it states: “All oil exploration activities in Nicaragua

from 1958 to 1981 were regulated by ‘The General Law on Exploration of Natural Resources’ and

21
‘The Special Law on Exploration and Exploitation of Petroleum’.” There is no indication that oil

companies are free to come to Nicaragua and ch oose where they want to put their concessions,

choose the co-ordinates themselves and even have open-ended oil concessions.

19. On your screen now (figure 8) is a copy of relevant passages in La Gaceta of Nicaragua,

of 4September1968, and that shows the gran t of the oil concession “Mobil Uno” to Mobil

22
Exploration Corporation in 1966 . This also deals with the Coco Marina area in part and it states:

“The description of the limits star ts on a point where parallel 14degrees

59minutes 8seconds latitude north intercepts with meridian 82 degrees 15 minutes
longitude west... From this point it continues eastwards along the parallel
14degrees 59 minutes 8 seconds latitude north for an approximate distance of

38kilometres up to its intersection with meridian 81 degrees 54 minutes longitude
west.”

And then it goes northwards. It takes the 15thpara llel as the northern limit. It was published in

La Gaceta and it was adopted as a presidential decree, you can go to the decree and trace the

decision-making process internally in the Government of Nicaragua. So there is no question that

the oil concession is anything but the exercise by the State of its sovereign authority. And that

includes the limits of the concession, and in this case the choice precisely of the 15th parallel. It is

an act of Nicaragua, a sovereign State, it is not an act of any other person.

20. Honduras submitted plenty of eviden ce on Nicaragua’s oil concessions in its

Counter-Memorial , and the evidence speaks fo r itself. Nicaragua’s oil concessions confirm tacit

20Ibid., p. 27, para. 50.
21
INE Report, June 1994, RH, Vol. 2, Ann. 255, p. 6.
22
CMH, Vol. 2, Ann. 202.
23See, e.g., CMH, paras. 6.27-6.28 and the related Anns. 115-118 and 202-215. - 21 -

agreement between the Parties, peacefully applied as such for approaching two decades, until 1979

when Nicaragua saw fit to unilaterally change its practice. But it did then proceed to treat the

15thparallel as the basis for oil concessions, as th e 1994 and 1995 reports show. By the time it

unilaterally changed direction, 18 concessions had been granted by Nicaragua, so you have in total

39 concessions. Of the 18 concessions granted by Nicaragua in the area in question, nine explicitly

referred to the 15th parallel as the northern limit: si x of those were original concessions and three

were renewals of original concessions. In its pleadings, and again last week, Nicaragua has

provided no explanation as to why that line was chosen, other than as the northern limit of the

concessions if it was not considered to be the northern limit of the maritime boundary. All of the

concessions were approved by Nicaraguan presidential decrees and duly published in La Gaceta ⎯

that is how we were able to get hold of them . As late as 1976 Nicaragua was still granting

concessions and renewing existing concessions th at explicitly delimited by reference to

24
parallel 15 .

21. Of the nine Nicaraguan decrees that do not refer explicitly to the 15thparallel, five are

extensions or renewals of earlier concessions that did. So you are left with just four, out of the 18,

which do not refer explicitly to the 15thparallel. ProfessorRemiro Brotóns told you that these

concessions had northern limits which were “ouverte et indéfinie” 25, and, with respect, that is not

correct. No oil company would enter into a concession for an area which was not precisely

defined. We all like and want certainty, but oil companies have to have certainty when they are

investing very large sums of money on projects such as these. So, the four concessions did provide

for limits: and they did so in the form of acr eages. The four concessions are: the concession

granted to Pure Oil in 1968 for bloc ks PureII, PureIII and PureIV 26; the concession granted to

Union Oil in 1972 for blocks Un ionII, UnionIII and UnionIV ⎯ of the same extension as the

Pure Oil concessions 27; the concession granted to Union Oil in 1974 for block Union V 2, and the

24
Resolution concerning renewal of pe troleum concession to “Western Caribbean Petroleum Company” and to
“Occidental of Nicaragua, Inc.”, official gazette of Nicaragua No. 140 of 23 June 1976, CMH, Vol. 2, Ann. 205.
25
CR 2007/4, p. 25, para. 38.
26
CMH,Vol. 2, Ann. 207.
27Ibid., Ann. 208.

28Ibid.,Vol. 2, Ann. 210. - 22 -

concession granted to Union Oil in 1975 for block Union VI . In each case the presidential decree

specified precisely and publicly the acreage of th e concession. So it is therefore very easy to

calculate the limits and we did so in the Rejoinder 30. You can see the result at plate34 of the

Rejoinder, which will come up on the screen. Plate 34A (figure9) shows UnionIII, it is there in

yellow, marked I, II, III and IV, and it has an acr eage of 192,800hectares. The northern limit is

precisely at the 15thparallel. Plate 34B (figure10) shows UnionIV, with an acreage of

192,800 hectares. The northern limit is at the 15th parallel. Plate 34C (figure 11), Union V, has an

acreage of 65,500hectares. The northern limit is the 15thparallel. And plate34D (figure12)

shows UnionVI, with an acreage of 350,000hectares, and, again, the northern limit is at the

15thparallel. The next plate 34E (figure13) is a composite and it shows you all the concessions

combined. So you can see on the right-hand side that UnionIII and IV go slightly further north

than Union V and VI, but that is only because they did not pick up the error that was made by the

Commission in 1962 and to which Nicaragua referred last week. Now, we wanted to test the

accuracy of our own calculations to make sure that they were correct, and we did that by comparing

our calculations, which you have just seen, with t hose of the Nicaraguan Government itself, in the

1969 Mapa de Concesiones Petroleras , which I showed at the beginning and which you can now

see on the screen in front of you (figure 14). On th at 1969 map you can also see that Union V and

VI do not go quite as far north up to the 15t hparallel. And so we have compared, by

superimposing, the 1969 map with our own calculations, and what you can see when the two plates

are superimposed on top of each other (figure 15) is that they are identical in result. Now compare

that with what ProfessorRemiro Brotóns showed you last week: you will see the concessions of

the 1969map and plate34E as Nicaragua depicted them last Thursday: ) that is plateARB2/4

(figure 16). That is rather different from what act ually happened. The claim that Union II, III and

IV somehow migrated north, or could migrate north, is the figment of a fertile imagination. And

we trust the Court will base its decision on evidence, and not on anything else.

22. Lest there be any doubt as to th e consistent practice of the two States ⎯ and it really is

very difficult to see how there could be ⎯ nature has provided its own assistance in the form of a

29
Ibid.,Vol. 2, Ann. 211.
3RH, paras. 4.31 et seq. - 23 -

possible oil deposit which appears to straddle the 15th parallel. This deposit is known as the Coco

Marina Oil Field. I am now putting up on the screen plate35 (figure17) of the Honduran

Rejoinder, which shows the location of Coco Marina ⎯ and you can see also its very limited

distance from Bobel Cay, 5.735nautical miles. No w the oilfield here was jointly authorized by

Nicaragua and Honduras for exploration, in a pr oject that was known as Operación Conjunta Coco

Marina. Two concessions were granted. One was granted by Honduras ⎯ block 8 ⎯ to the Union

Oil Company of Honduras, to the north 31. The other was granted by Nicaragua ⎯ and this is

known as UnionIII ⎯ to a sister corporation, the Union Oil company of Central America, to the

south. This joint initiative was proposed privately by both corporations, but of course it required

governmental approval. And that is what it got from the two Governments ⎯ the Government of

Honduras and the Government of Nicaragua appr oved it. Operational expenses were shared

equally between the Parties.

23. A well was drilled in 1969 on the Honduran side at a point located at 15ºN,

82°43'30"W, but for the purpose of exploring both concessions. The Union Oil Company of

Honduras reported to the Honduran Ministry of Natu ral Resources the precise location of the well.

It indicated that this location was conditioned by seismic studies which had been carried out. In its

report the Union Oil Company of Honduras stated expressly that the points picked out for the

drilling of the oil well were set at the chosen lo cation “to explore the common structure that was

32
defined with the seismic survey and covers concession areas in Honduras and Nicaragua ” : I

emphasize ⎯ concession areas in Honduras and Nicaragua ⎯ I make that emphasis. The

Honduran Government issued an opinion on the ma tter, confirming that the maritime boundary

with Nicaragua was at 14° 59'8", and that all concessions granted by Honduras reached this limit

and the information concerning activities north of this boundary had to be reported exclusively to

the Honduran Government 33. And we do not have the material that would, presumably, have

flowed from the Nicaraguan side of the operation. It was for Nicaragua to put that material in, we

do not have access to that, it has not been put before the Court. But, clearly, the Coco Marina Joint

31
See CMH, para.6.28 and RH, para. 5.13 with the corres ponding Annexes. See concessions to Pure Oil and to
Union Oil in CMH, Vol. 2, Anns. 207-208.
32
See CMH, Vol. 2, Ann. 110.
3See Opinion of the Interstate Study Commission (undated), CMH, Vol. 2, Ann. 109. - 24 -

Operation confirms a tacit agreement, and perhaps it confirms more than that. I am not aware of an

analogous arrangement in any case that has come before this Court, showing so precise acts of

convergence over so extended a period of time. If Coco Marina did not reflect a tacit agreement

then it is very difficult to see what would. The jo int arrangement destroys in our view Nicaragua’s

opposition to Honduras’s sovereignty or sovereign rights in the area north of the 15th parallel.

24. Now, Nicaragua has not challenged this evidence, with any evidence of its own; it’s hard

to see how it could. So what did counsel for Nicarag ua have to say about it? Well, counsel said, if

it was a joint enterprise, “c’est d’un projet conjoint des filiales de l’Union Oil, et non du Nicaragua

et du Honduras” 34. Again, we think that is a curious reading of the concessions granted on either

side of the 15thparallel by the two States. So Nicaragua goes beyond that and takes refuge in

attacking the quality of our evidence, but it introdu ces none of its own. It focuses its attention for

example on the opinion I just referred to ⎯ the opinion by the Honduran Interstate Study

Commission. It is undated; we accept that, but it explicitly refers to the Coco Marina project. It

was introduced as Annex 109 to the Counter-Memorial and it speaks for itself. It confirms clearly

that Honduras considered the 15thparallel as “t he maritime boundary with the Republic of

Honduras”, and advised that the concessions grante d by Honduras to the Union Oil Company of

Honduras “should reach up to that limit in the bo rdering maritime zone, in order that none

intermediate zone is left between that limit and the limit fixed for the granting of concessions by

35
the Nicaraguan Government” . That is precisely what happened; Nicaragua did grant a

concession up to that parallel. And then the opinion added: “Any drilling carried out by the Union

Oil Company of Honduras . . . North of the parallel . . . must be solely notified to the Government

of Honduras.” And that is precisely what happened. Madam President, Members of the Court, if

Nicaragua had any documentary evidence to cont radict this document one assumes that it would

have been introduced as evidence. But nothing has been introduced as evidence.

25. There is one further aspect that has to be mentioned. These activities relating to

CocoMarina were very closely associated with the islands. As you will recall, I mentioned on

Tuesday that it was this very same Union Oil Company of Honduras that contributed to the

34
CR 2007/4, p. 30, para. 58.
3See opinion of the Interstate Study Commission (undated), CMH, Vol. 2, Ann. 109. - 25 -

construction of the antenna on Bobel Cay. And you saw contemporane ous documents of 1975

explaining that. Bobel Cay is less than 6 nautical miles from the Coco Marina oil concession. That

insular territory was used to assist in exploration activities. The evidence is irrefutable. In this way

the activities associated with oil exploration on the Honduran side are very closely connected with

Honduran sovereignty over the islands.

26. Madam President, I will conclude on oil concessions. The concessions granted by

Nicaragua and Honduras are not tainted by any ambiguity or doubt whatsoever. On the screen

(figure18) is projected plate13 of the Counter-Memorial. It is a composite plate, showing all

Honduran and Nicaraguan oil concessions as at 197 9 and 1977 respectively, taking the erroneous

critical date of 1977 as a base for one of them. I would not say that it is as good as a painting by

PietMondrian, but the precision of the lines is very striking, especially along the 15thparallel,

which we show in red. There are no exceptions. Nicaragua has never gone north of the

15th parallel; it has never sought to do so; it has never reserved its right to do so.

III. Fisheries

27. I turn now to the second indicator of Honduran activity around the islands and in the

maritime areas that confirm that the 15thpara llel was treated by both States as the maritime

boundary. That is the conduct relating to fisheri es. Professor Dupuy has already set out the legal

criteria that are relevant for taking into account these activities.

28. You can see the Honduran fishing zones on the screen (figure 19). Gorda Bank ⎯ which

is the circled light blue, bottom cente r light blue, circular construction ⎯ is located just to the

north-east of the islands over which Honduras has s overeignty. The southernmost area of Gorda

Bank is about 40 miles from Palo de Campeche and Savanna Cay, respectively.

29. As Honduras explained in the written pleadings 3, for over 60years third States and

international organizations have recognized the fishing area immediately to the north of the

15thparallel and around the cays as falling within th e jurisdiction of Honduras. For example, a

1943 report by the Fish and Wildlife Service of the United States Department of the Interior

36
See for example CMH, paras. 6.29 et seq. and its related annexes. - 26 -

addressed the fishery resources of Honduras 37. It described the potential fishing area in the

Caribbean coast of Honduras. Nicaragua complains that it does not mention the islands in issue.

Well, that is true, it was dealing with fisheries. So it mentions the banks. And this is what it says:

“They include Gorda Bank, Rosalind Bank, Serra nilla Bank, Thunder Knoll and others.”

(Figure 20.) That is a 1943 document, treating the area in question as part of Honduras.

30. In 1971 the United Nations and the Food and Agriculture Organization (FAO) published

a biological study of crustaceans in the Western Caribbean. The study was based on scientific

research cruises ⎯ three in Honduras and one in Nicaragua. The 1971study states that the

Honduran research included areas between 15º 00' N a nd 16º 00' N; the research in Nicaragua was

38
undertaken in areas between 13º 50' N and 14º 15' N, well south of the 15th parallel . In the 1980s

the FAO, in collaboration with the Unite d Nations Development Programme and the

Inter-American Development Bank supported further fisheries studies in Honduras, including right

in the very area now claimed by Nicaragua. These studies were initiated by a proposal from the

Honduran Government, which sought financial assist ance to examine the poten tial for fisheries in

the northern area of Honduras, including specifically around the fisheries banks of Rosalinda and

Thunder Knoll, as well as the Media Luna reefs ⎯ Half-Moon reefs ⎯ which were expressly

39
mentioned in the document .

31. The evidence of Honduran fisheries authority in the area to the north of the 15th parallel

even at this stage ⎯ 1943, 1971, early 1980s ⎯ is rather compelling and there is none from

Nicaragua that goes the other way: Honduras has authorized fisheries activities in the waters down

to the 15thparallel without protest or objection from Nicaragua. It has provided documentary

evidence in support of that, some of it predating Nicaragua’s artificial critical date of May1977.

Honduras’s evidence in cludes licences and bitácoras, and it also includes numerous witness

statements. We say, it is simply not good enou gh for Nicaragua to criticize the testimony of

37
CMH, Vol. 2, Ann. 162.
38
“Exploratory and Simulated Commercial Fishing Operations in the Wester n Caribbean Sea. R/V ‘Canopus’,
May to November 1970” by Marcel Giudicelli, CCDO-FAO-UNDP, San Salvador 1971, CMH, Vol. 2, Ann. 163.
3CMH, Vol. 2, Ann. 161. - 27 -

40
fishermen on the grounds that it is “highly selected” . The distinguished Agent of Nicaragua and

his counsel have provided no evidence to support that charge.

32. There was no basis either for the distingui shed Agent’s claim that “[a]ll of the activities

that refer to the areas in question, as an identifiable area, occur[red] after 1977” 4. Or for his claim

that all the material filed as evidence by Honduras in relation to fisheries referred to “activities

occurring for the first time after” Nicaragua’s critical date. Or to the claim that the evidence “has

42
no clear reference to any specifically identifiable maritime area” . Yet again those assertions are

simply not true, on the basis of the evidence that is before this Court. The document now on the

screen (figure21) shows that. This is a resolution from the Honduran Ministry of Natural

Resources to a Honduran fishing company that extends for one year ⎯ and I emphasize the word

extends ⎯ a provisional fisheries licence that was or iginally granted on 16 December 1974. This

resolution is dated 7 January 1977 ⎯ well before Nicaragua’s erroneous critical date. At Clause 6

it defines the limits of the fishing area. It does so by specific co-ordinates. For the avoidance of all

doubt I want to read out the co-ordinates, so that I am not accused of reading the document

selectively. This is what it says:

“From 154 °4' orth Latitude, 88w° est longitude, From 855 °7W' est
Longitude, 18°01'North Latitude. From 84º02'West Longitude, 18º58'North

Latitude. From 80°38W ' est Longitude , 16°30' orth Latitude, 79°51W' est43
Longitude, 15° North Latitude. From 83° 09' Longitude, 15° North Latitude.”

And please note the signature of the person who signed the resolution: it is the same

Mr.RafaelLeonardoCallejas who was Under-Secretary of State and Secretary of State in the

Honduran Ministry of Natural Resources and w ho provided the witness statement to which I

referred earlier. So, this is contemporaneous documentary evidence corroborating his witness

statement as to the use of the 15° parallel as the southern boundary. And you may well now ask,

where on earth is this limit? So, hopefully, depi cted on the screen right now is the fisheries limit

that that resolution adopts (figure 22), and you will see that it runs ⎯ the southernmost part of it ⎯

precisely along the 15thparallel. It includes all the islands and reefs that are now in issue. It is

4CR 2007/1, p. 41, para. 90 (i).
41
CR 2007/1, p. 35, para. 66.
42
CR 2007/1, p. 34, para. 65.
4This is a corrected translation of the co-ordinates of the fisheries concession set out in Ann. 258. - 28 -

January 1977, extending a resolution previously adopted in 1974. So, with very great respect,

when Nicaragua says there is no evidence of fisher ies licences that predates its critical date and

specifically refers to the area in question, that is simply wrong.

33. Can Nicaragua show us any equivalent document that it has issued in an area north of the

15th parallel? Apparently, it cannot. Nicar agua has put no contemporaneous evidence ⎯ none ⎯

before the Court to demonstrate that it has ever a pplied or enforced its fisheries laws in areas north

of the 15thparallel, and I emphasize the word contemporaneous documents. If Nicaragua had

granted any licences to the north of the 15thparallel, why has she not put them before the Court ?

There is only one inference to be drawn, and that is that none were issued.

34. The fact is there has been a consistent and longstanding practice of Honduras in granting

licences and issuing bitácoras in this area. This is confirmed by documentary evidence, by witness

statements that are in evidence before the Court, and by recognition of third States and international

organizations.

35. There is one document in which Nicaragua di d try to go north of the 15th parallel and it

provides evidence that Nicaragua was persuaded to recognize that the 15th parallel was indeed the

northern limit of its fisheries boundary. On 17November 1986, well after the critical date that

Nicaragua has chosen, the Nicaraguan Fisheries Authorities (INPESCA) granted a lobster fishing

permit to a Mr. Ramon Sánchez Borba. It extended to the north of the 15th parallel 44. It was not

published, but when it came to the attention of th e Honduran authorities, they reacted very firmly

and at the highest levels of government. On 20 March 1987, the Minister for Foreign Affairs, no

less, of Honduras sent a protest Note to his counterpart, and you can see that projected on the

screen (figure 23). Paragraph3 of the protest Note read s as follows: “The above-mentioned

contract goes against the traditional maritime border existing between Honduras and Nicaragua,

established at parallel 14º56'09".” 45 That is an error that has obviously fallen into the letter.

Nicaragua’s reaction? It did not object. It did not enter a reservation of rights. What did it do? It

amended the contract. By an act on 7 April 1987, INPESCA amended the contract. You can see

that on the screen (figure 24). Clause 6 of the amendm ent to the contract changes the fishing area.

44
RH, para. 5.37.
4See CMH, Vol. 2, Ann. 123. - 29 -

Clause6 says: “The fishing area for each fishi ng boat shall be determined by INPESCA in areas

south of parallel15.” That is rather clear ev idence and the Court will note that nowhere did

Nicaragua reserve its rights. Is there any equi valent objection in writing by Nicaragua to any

sovereign act of Honduras north of the 15th parallel in relation to licences issued? It appears there

is none.

36. I really do apologize, Madam President, for descending into such mind-numbing detail,

but we are really concerned that the Court should be directed to specific evidence so that it can see

for itself what the evidence actually says, not what Nicaragua claims that it says. Nicaragua has no

evidence of its own, so its strategy seems to be to raise a smokescreen of concerns about the quality

and substance of Honduras’s evidence. Once we go into the detail, into the minutiae, it becomes

apparent, we say, that Honduras has presented evid ence and done so in a fair and balanced way.

We respectfully submit that we have not gone beyond what the evidence will sustain. We

appreciate the limitations of the exercise for both States ⎯ developing countries that perhaps do

not have the best record-keeping systems that all States may wish to have. But given the

inhospitable nature of the area in question we say that it is abundantly clear that the evidence

before the Court is compellingly in favour of Honduras’s argument.

37. There is another technique that is used by Nicaragua in relation to the witness statements,

and that is the technique of mockery. ProfessorRemiro Brotóns referred to the statement of

Mr. Santos Calderón Morales, noting his stupefaction that Mr. Calderón should have been aware of

this Court’s Judgment of 1960 46. Well, it is true that Mr.Calderón is not a professor of

international law, but surely that cannot be held against him. In 1978, he was the Mayor of the

municipality of RamonVilleda Morales, in Cape Gracias a Dios, so he does know a thing or two

about the fisheries communities that work in the area and about land disputes. And it is not

surprising at all that he should know about the Court’s Judgment of 1960, or the Arbitral Award of

1906. Anyone who has been to that area will co me to understand the significance of the Award

and of the Court’s Judgment enforcing it. The Court’s Judgment of 1960 caused Nicaragua to

leave great areas of land territory. Many of this Court’s judgments are very well known in the

46
CR 2007/4, p. 41, para. 102. - 30 -

areas they affect. Another Judgment, after all, of th is Court dating back to the 1980s, is still rather

well known in Nicaragua. I remember many y ears ago reading a book by the British author

Salman Rushdie, published in 1989; it was called The Jaguar Smile. The subtitle is A Nicaraguan

47
Journey . And I was struck by the numerous passages in that book which referred to the

resonance of this Court’s Judgment in the 1980s to people in Nicaragua. That book described very

clearly how judgments of this Court can and do permeate public consciousness in very important

ways. And that is a reflection of the Court’s authority.

38. Counsel for Nicaragua was equally scathi ng about the statement of DanielSantos

Solabarrieta Armayo. He attested to the fact that he had fished in the waters around the cays

48
between 1958 and 1974, under licences gr anted by the Honduran authorities . Mr. Armayo gave

his statement in Guanaja in July 2001, when he was in his eighties ⎯ he was an elderly man. What

could justify such harsh words from counsel for Ni caragua in the absence of any evidence at all?

He and many others were based in Guanaja. They would take very lengthy fisheries expeditions to

fish around the islands, including Savanna, Bobel a nd Media Luna. Anyone who troubles to read

all of his statement will see that he is an educated man. He was born in Spain, he studied in France

and he went to Honduras as a political refugee. His evidence has not been challenged by

Nicaragua. On rereading his statement, which I did after I listened to Nicaragua ⎯ it is at

Annex 82 ⎯ it struck me that there was nothing in it that would suggest that it was anything other

than that of a balanced and honest individual. It attested that when he visited the cays 40 or so

years ago they were not then occupied by anyone. If he had been manipulated in some way, why

would he have said that? If we were being selec tive in our choice, why would we have included

his statement in our presentation of witness statements? The evidence is unchallenged ⎯ the man

says he fished pursuant to licences ⎯ and that is clear, Honduras stands by it. In the absence of

evidence to the contrary there is no reason to doubt his integrity. Mockery, MadamPresident, is

not a substitute for hard evidence.

47
Salman Rushdie, The Jaguar Smile: A Nicaraguan Journey, Picador; reprint ed. (1 Sept. 2003).
4CR 2007/4, p. 42, para. 105; CMH, Vol. 2, Ann. 82. - 31 -

39. The fishing area in question is depicted at plate14 of Honduras’s Counter-Memorial

(figure 25). This is the area over which Honduran fisheries conservation laws apply 49. Witness

statements and other evidence show that Honduras h as regulated fisheries activities in the area for

several decades. Those statements are consiste nt with the terms of Honduras’s Constitution of

1957, which expressly mentioned one cay in the area ⎯ Palo de Campeche ⎯ as being part of

50
Honduras. and fishermen attesting to Honduran regulation . All but four refer to the role of the

cays in sustaining Honduran authorized fisheries activities. In its Rejoinder Nicaragua ignored

most of these witness statements, which have gone unchallenged. These powerful testimonies

confirm Honduras’ longstanding regulatory role in respect of fisheries around the islands and in the

waters up to the 15thparallel. The Court befo re it has no less than 28 witness statements from

51
government officials and fishermen attesting to Honduran regulation , backed by

contemporaneous documentary evidence. All but four ⎯ in some cases ⎯ all but four of those

witness statements refer to the role of cays in su staining Honduran authorized fisheries activities.

In its Reply Nicaragua ignored most of these witness statements, which remain unchallenged.

These powerful testimonies confirm Honduras’s long-standing regulatory role in respect of

fisheries around the islands and in the waters up to the 15th parallel.

49For example, a resolution adopted in 2000 by the Ministry of Agriculture and Livestock and the
Directorate-General on Fisheries, provides that all fishing boats that fish north of the 15thparallel up to the limit of
Honduras’s maritime jurisdiction shall be decommissioned and their fishing li cences suspended. See Annex “E”,

resolution N.06-2000 to Operations Orde r N.21-2000, CMH, Vol.2, Ann.142. The resolution includes a map which
clearly shows that the resolution shall apply to the waters ar ound the cays, as well as the fishing banks in the area. The
resolution extends an earlier resolution dating back to 1999, and is based on Article 340 of the Honduran Constitution,
Article 116 of the General Law on Administration, and Article 43 of the Law of Fisheries.
50
See, as e.g., Statement of Edgar Henry Haylock Arrech avala, CMH, Vol.2, Ann. 74 (“during all the time he
has been in charge of fishing boats [30 years], Honduras has regulated the fishing activities ... he represents that the
fishing permits were obtained in Tegucigalpa”; statem ent of Mario Domínguez, CMH, Vol.2, Ann.80 (“to his
knowledge since he occupied Cay South, the Jamaicans have been fishing in Savanna Cay with permits issued by the
Honduran authorities and they only capture fish”); statement of Angela Green de Johnson, Vol. 2, Ann. 77 (“as far as she
is aware the Jamaicans have been in those cays since the year [1972] and have been granted work permits by the
Honduran authorities”); statement of Robert Richard Gough, Vo l.2, Ann.84 (“the fishing permits were issued by the

Natural Resources Ministry and it was the Honduran authorities who provided documents to the seamen”).
51See as, e.g., statement of Edgar Henry Haylock Arrechavala, CMH, Vol. 2, Ann. 74 (“during all the time he has
been in charge of fishing boats [30 years], Honduras has regul ated the fishing activities . . . he represents that the fishing

permits were obtained in Tegucigalpa”; statement of Mario Domínguez, CMH, Vol. 2, Ann. 80 (“to his knowledge since
he occupied Cay South, the Jamaicans have been fishing in Savanna Cay with permits issued by the Honduran authorities
and they only capture fish”); statement of Angela Green de Johnson, Vol.2, Ann.77 (“ as far as she is aware the
Jamaicans have been in those cays since the year [1972] and have been granted work permits by the Honduran
authorities”); statement of Robert Richard Gough, Vol.2, Ann.84 (“the fishing permits were issued by the Natural
Resources Ministry and it was the Honduran authorities who provided documents to the seamen.”) - 32 -

40. One example is at Annex 84 of the Honduran Counter-Memorial. It was the statement of

RobertGough, a Honduran fisherman, who stat ed that between 1980 and 1983 he fished in

Nicaraguan waters, south of the 15th parallel, with a permit from the Nicaraguan authorities. North

of the 15thparallel he obtained fishing permits issued by the Honduran Natural Resources

Ministry. And he confirms that if they went s outh of the parallel 15, their boats were captured by

the Nicaraguan authorities. However, he states cate gorically that in all the time they engaged in

fishing, they never encountered any Nicaraguan fishing boats or Nicaraguan patrols north of

parallel 15 52.

41. So, Honduras has also put in evidence be fore the Court confirming that when fishing

licences or concessions were not complied with, or where they had expired, the Honduran

authorities take the necessary enforcement measures 53. These statements have not been challenged

by Nicaragua.

42. Some fisheries concessions are granted by congressional decree, and published in

Honduras’s official journal, La Gaceta. The concessions indicate the maritime areas to which they

54
apply , as well as the type of fish to be harvested and the proposed duration of the concession.

Copies of the fisheries concessions dating back to 1962 are before this Court 55. They have not been

challenged by Nicaragua. A number of witness statements confirm the effect of these

52
Statement of Robert Richard Gough, CMH, Vol. 2, Ann. 84.
53
See statement of Fabián Flores Ramirez, CMH, Vol.2, Ann.73; statement of Ramón Antonio Nell Manister,
CMH, Vol. 2, Ann. 72.
54
See, e.g., area described in Notification Concerning an Application for Fishing concession submitted by
“Hondureña de Pesca, S. de R.L.”, published in the offici al gazette of Honduras No. 17.611 of 23 February 1962, CMH,
Vol. 2, Ann. 119.

“The area destined for fishing will include the area from the Bay of Puerto Cortés up to the mouth
of the River Wans Coco or Segovia, in a North bound direction, up to where the territorial sea of
Honduras extend to, in the bed and s ubsoil of the submarine shelf, cont inental shelf and other zones that
correspond to Honduran sovereignty, in accordance with the provisi ons of the Constitution of the
Republic.”

See also area described in Notification Concerning an App lication for Fishing permit, submitted by “Alimentos Marinos
Hondureños, S. A.”, published in the official gazette of Honduras No. 22.551 of 17 July 1978, CMH, Vol. 2, Ann. 120:

“from the Bay of Puerto Cortés, in the Department of Cortés up to the mouth of the River Wans Coco o
Segovia, in the territorial sea, in the bed and subso il of the submarine shelf and other adjacent submarine
zones in its territory, and up to where the depth of t hose waters allow for the e xploitation of the marine
resources, in accordance with the Law and International Treaties . . .”

55CMH, Vol. 2, Anns. 119 and 120. See also RH, Vol. 2, Anns. 256-259. - 33 -

56
concessions . They too have not been challenged. Their value to this case was first questioned

last week by counsel for Nicaragua, who said th at only one of the con cessions referred to by

Honduras in the Rejoinder takes as referen ce the 15º parallel beyond meridian 80º 57. But there is

no reason why all the concessions should extend as far as Nicaragua’s counsel would wish. An

extension of three miles into the sea, or seven m iles or 12 miles along the 15th parallel is as valid

and relevant for the purposes of recognizing the 15 thparallel as an extension of 40 miles or 60

miles or 80 miles. To illustrate, let me show y ou the graphical representation of the extension of

two such concessions. On the screen you will see plate38 (figure26) of Honduras’s Rejoinder.

This shows a concession granted to fishing company “del Mar” in 1975 ⎯ well before Nicaragua’s

artificial critical date 58. As you can see ⎯ in yellow, the line ⎯, the southern limit of the area

licensed for fishing follows the 15th parallel up to meridian 83º E latitude. Similarly, you can see

now on the screen plate 39 (figure 27) of Honduras’s Rejoinder, the graphic description of the area

of delimitation of a concession granted by Honduras to the company Mariscos de Bahía in 1976. It

59
too takes the 15th parallel as the southern limit .

43. In addition to licences and concessions, H onduran authorities provide fishermen with a

document known as a bitácora, and they have done so since the 1970s 60. A bitácora indicates the

area in which fishing is permitted. It is to be returned to the Honduran authorities with an

indication of the quantity and type of the fish that has been caught, as well as the location where the

catch occurred. To ascertain the location, the area in question is divided into grids. The bitácora

issued for the area now claimed by Nicaragua uses the 15thparallel as the southernmost limit of

Honduras’s fishing area. On the screen y ou can see plate31 (figure28) of Honduras’s

56See inter alia statement of Edgar Henry Haylock Arrechavala, CMH, Vol. 2, Ann. 74, who states:

“[T]hey fished in the area from Patuca to the parallel15º and from there out to sea until they
reached the Rosalind Fishing Bank . . . the company that hired them was called Alimentos Marinos; . . .;
he further deposes that within the fishing areas we find South Cay, Savanna Cay and Bobel Cay because
there are fishing banks next to these Cays; the fishing boats sold their captures in Guanaja except those
boats hired by Alimentos Marinos (Marine Foods) that unloaded their production in Puerto Lempira; he

started out as a Master with Alimentos Marinos and la ter continued working for local fishing boats of the
islands; the owners of the fishing boats paid their taxes in Guanaja and those of Alimentos Marinos in
Puerto Lempira.”
57
CR 2007/4, p. 39, para. 97.
58RH, Vol. 2, Ann. 256.

59RH, Vol. 2, Ann. 259.

60CMH, para. 6.44 as well as RH, para. 5.18. - 34 -

Counter-Memorial. It was shown to you last w eek by counsel for Nicaragua. It shows two

bitácoras dating to 1978. They clearly show that the 15th parallel is the southern limit of the area

authorized for fishery, in the red line. Dr. Elferi nk was heroically inventive in his efforts to attack

61
this evidence . But the simple fact is ⎯ no getting away from it ⎯ it confirms that Honduras

regulated fisheries activities in the waters down to the 15th parallel. Nicaragua has not put a single

bitácora before the Court, not a single bitácora to show that it has ever treated waters to the north

of the 15th parallel as falling within its fisheries jurisdiction.

N4ic.arguaae no claim in its Application that it had ever applied or enforced its

fisheries laws in the area north of the 15thparallel. Its Memorial produced no evidence

whatsoever. Only in response to Honduras’s Counter-Memorial did Nicaragua come to this issue.

And we say it has done so inadequately, it has faile d to engage with the evidence. And we make

three points. First, Nicaragua challenges the sufficiency of Honduras’s evidence, not its

authenticity. In our submission the evidence tende red by Honduras is overwhelmingly sufficient.

Second, Nicaragua provides no evidence to show that it has ever protested a Honduran authorized

fishery activity, including the ones published in La Gaceta.

A4n5d. third, Nicaragua provides no contemporane ous documentary evidence that shows

that it has ever granted any fishing licence north of the 15th parallel. It has provided no evidence

that it has ever advertised licences in that area. It has produced no logbooks. It has produced no

bitácoras. There are no licences, no concessions. There is nothing at all. And that may explain

why Nicaragua is now so defensive, even arguing that fishing licences and fisheries regulation are

62
“not directly relevant” . In our submission that argument is not well-based, as this Court’s

consistent jurisprudence has shown 63. In the Qatar v. Bahrain case, the Court expressly referred to

the licensing of fish traps as one of the activities ca rried out by Bahrain in support of its claim to

sovereignty ( Maritime Delimitation and Territorial Questions between Qatar and Bahrain

(Qatar v. Bahrain), Judgment, I.C.J. Reports 2001 , pp. 99-100, paras. 196-197). In Pulau Ligitan

and Pulau Sipadan the Court ruled that private fishing activities may be taken as effectivités where

6CR 2007/3, p. 40, para.11.
62
RN, para. 6.107.
6RH, para. 4.35. - 35 -

they take place “on the basis of official regulations or under governmental authority”, i.e., under

governmental licence or pursuant to a governmental concession ( Sovereignty over Pulau Ligitan

and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002 , p.683, para.140). The

activity set forth in Honduras’s evidence shows that fisheries have taken place under Honduran

governmental authority.

46. All Nicaragua has to offer is the five witnesses that I mentioned on Tuesday. And we

have gone through each of these very carefully: I refer you to our Rejoinder and what I said on

Tuesday. The five statements are wholly inade quate. None emanates from any person who is or

was a government official. Three make no referenc e whatsoever to the ex istence of any fishing

licence granted by Nicaragua. The two that remain provide no supporting evidence, no

documentary evidence of a contemporaneous or other character, to buttress even their modest

claims. So we invite you to read the five Ni caraguan witness statements, and then compare these

statements and the contemporaneous docum entary evidence tendered by Honduras. The

differences are, we say, very, very telling.

47. Bringing together the threads, the evidence before the Court overwhelmingly points to

the fact that Honduras has authorized fisheries activities in the waters north of the 15th parallel and

around the cays for many decades, without interr uption, without protest pursuant to a tacit

agreement that the 15th parallel was treated as th e maritime boundary. By contrast, Nicaragua has

provided no contemporaneous evidence that it has ev er sought to regulate fisheries activities north

of the 15th parallel.

IV. Naval patrols

48. I turn finally to naval patrols. I have al ready referred in passing to these: they enforced

Honduran Laws in maritime and insular areas north of the 15thparallel, as long ago as 1976.

Plate 15 of the Honduran Counter-Memorial, now on the screen (figure 29), depicts the geographic

extent of the Honduran naval patrol zone. These naval patrols perform a number of functions,

including the enforcement of fisheries laws, the enforcement of immigration laws, and the

maintenance of security in Honduras. - 36 -

49. Honduras has put before the Court the testimonies of two officials ⎯ a Honduran

immigration officer and a port supervisor ⎯ who worked with the Honduran navy in undertaking

patrols to the cays to enforce immigration laws 64. Honduras has also provided documentary

evidence, in the form of patrol logbooks and ot her materials, showing Honduran patrols around the

65
cays, the reefs and the banks in the areas to the north of the 15thparallel . These patrols began

in 1976, once Honduras had created its navy. They have been routine ever since. Since 1986 two

dedicated patrol boats have carried out regular operations, visiting the cays as well as Rosalinda

66
and Thunder Knoll Banks. These naval pa trols inspect fishing boats and catches , occasionally

arresting ships fishing or trading illegally 67. Again, the evidence before the Court shows that they

assist boats in distress 68and they provide injured sailors with first aid and other medical

69
assistance .

50. After 1982 the evidence shows that patr ols have also had to respond to occasional

incursions into Honduran waters by Ni caraguan vessels, including military vessels 70. Since 1995,

special patrols have been undertaken with three obj ectives: first, to ensure that Nicaraguan vessels

do not enter Honduran waters and harass or appreh end Honduran fishing vessels; secondly, to

prevent and control narco-trafficking activities; and thirdly, to ensure that duly authorized fishing

64
Statement of Harley Seision Paulisto, CMH, Vol.2, Ann.71 and Statement of Fabián Flores Ramirez, CMH,
Vol. 2, Ann. 73.
65
CMH, paras. 6.60-6.62 and HR, paras. 5.54-5.57 and related annexes.
66
See e.g., logbooks of the two boats ( Honduras and Hibueras) patrolling around the various cays and banks
including Media Luna, South Cay and Bobel Cay, CMH, Vol. 2, Ann.133-136. See also CMH, Additional annexes,
Anns. 20-224.
67
For, e.g., a United States vessel captain was arrested in May 1988, at 16º 20' N 80º 09' W with 3,000 pounds of
lobster and no permits, Report of the Naval Squadron of the Atlantic of Puerto Cortés (May 1988), CMH, Vol.2,
Ann. 132; see also a report regarding the capture of a Nicaraguan vessel while engaged in illegal activities to the north of
the 15th parallel (15º 09' N 82º 12'), CMH, Vol. 2, Ann. 141.
68
See, e.g., logbook of the Hibueras. CMH, Vol. 2, Ann. 130. See also Logbook of the Hibueras (Patrolling of
18 January 1989, describing rescue of fishing crew at South Cay), CMH, Additional Annexes, Ann. 226.
69
See, e.g., logbook of the Hibueras. Naval Base of Puerto Cortés (Patrolling of 6, 7 and 8August1986 and
6 May 1987 on an incident at South Cay), CMH, Vol. 2, Ann. 130.
70
See, e.g., logbook of the Hibueras, entries of 18 September 1982 (incident at Bobel Cay), April 1983 (incident
at Bobel Cay), 9 September 1983 (incident at 15º02' 00"N 82º 30' 00" W), 6 November 1983 (incident at 15º 01' 00" N
82º 58' 00" W), CMH, Vol. 2, Ann. 129; Note dated 21March1982, addressed by the Chief of the Honduran Armed
Forces to the Minister of Foreign Affairs of Honduras Rega rding an Incident with Sandinista Patrol boats in Bobel and

Media Luna Cays, CMH, Vol. 2, Ann. 139; Report dated 9 December 1982, addressed to the Commander in Chief of the
Honduran navy about an Incident with a Nicaraguan Patrol boa t in the Bobel Cay Area, CMH, Vol. 2, Ann. 140. There
are also other documents that have been filed as additional annexes. See CMH, p. 122. - 37 -

vessels respect Honduran fisheries conservation measures 71. In its Rejoinder Honduras provided

72
further evidence of military patrols in the area .

51. By contrast, Nicaragua has produced no co mpelling evidence to show that it has sought

to enforce its fisheries or other laws in any insu lar or maritime areas north of the 15thparallel,

whether before or after 1979. Honduras has provide d extensive evidence: 17annexes of official

military records 73; six witness statements 74, several diplomatic Notes. What does Nicaragua rely

on? Just two witness statements. Even this limite d testimony is flawed. On the basis of the first

witness statement offered by Mr. Arturo Möhrke Vega, Nicaragua refers to Honduran patrols as not

being present in the area before Nicaragua’s “critical date” of 1977 75. But his statement deserves to

be read carefully. Mr. Möhrke Vega does not actually mention any date in his statement as to when

he was there. It is simply not possible to know when Nicaraguan naval patrols in the area he

76
describes are said to have occurred .

52. The second statement on which Nicaragua relies is by Mr. Clark Mclean 77. He describes

fishing in the areas where, he says, “Nicaraguans patrolled”. Those two words constitute the full

extent of his description of alleged patrols. Ther e is no indication of any date, no indication of any

precise location and no sense of whether they overl apped with Honduras’s oil concessions in the

area and the construction of the antenna on Bobel, f acts which appear to be in contradiction with

his evidence.

53. So in sum, we are very content to l eave the Court to weigh up the evidence on patrols

provided by Honduras with that provided by Nicaragua. In the balancing exercise that follows, in

our submission, the scales can only go in one direction.

71
See e.g., Operations Order N.003-95 of the Naval Base of Puerto Castilla (patrolling of February1995 at
Bobel Cay, Cabo Falso Cay, Cape Gracias a Dios and La Mosquitia), CMH, Vol. 2, Ann. 137. See also Ann. 38, 142 and
others.
72
See RH, para. 5.57 and related documents.
73
CMH, Vol. 2, Anns. 129-145.
7CMH, Vol. 2, Anns. 68, 71, 72, 73, 75 and 78.

7RN, paras. 5.4 (iv), and 6.65.

7RN, Vol. 2, Ann. 23; RN, para. 6.110.
77
RN, Vol. 2, Ann. 22; RN, para. 6.110. - 38 -

V. Conclusions

54. Madam President, Members of the Court, that brings me to my conclusions. The Court

has a mass of evidence before it. In our subm ission, the evidence on oil concessions, fisheries

concessions, naval patrols, points decisively to wards the existence of a tacit agreement over

twodecades of the 15thparallel as the maritime boundary, and its mutual recognition as such by

Honduras and Nicaragua. Taken together the cumulative evidence presents an overwhelming

expression of Honduras’s long-established sovereignty and exercise of jurisdiction over waters that

lie to the north of the 15th parallel.

55. Amidst all of this evidence there is one pi ece that I found particular ly telling. It is the

witness statement of Mr.Bob Ward Macnab Bodden (CMH, Ann.86 ⎯ figure30). Mr.Bodden

describes how a fishing vessel registered in Ho nduras was found by Nicaraguan patrols in waters

south of the 15th parallel, where it was alleged to have been fishing illegally in Nicaraguan waters.

The Nicaraguan patrol apprehended the vessel, escor ted it to the 15thparallel, and then released

it8. That happened in 2000, after Ni caragua filed its Application in this case, and as the National

Assembly in Managua was preparing to a pprove the 1998Central American Free Trade

Agreement, which they did in November of that year. So the National Assembly was not alone in

acting in support of Honduras’s claim. The Na tional Assembly of Nicaragua was in good

company. The authorities in Managua that created this claim in December 1999 somehow forgot to

tell Nicaraguan navy patrols about the case.

56. Madam President, Members of the Court, be fore I conclude there are just two points I

would like, with your permission, to address. The first is a minor correction of something that

Professor Dupuy said yesterday. He made inadve rtent reference to a 1994 Note from Nicaragua. I

need to just clear up the fact that the Note referr ed only to the maritime spaces; it did not refer to

any islands, as he inadvertently suggested 7. And second, on a personal note, I would like to record

my deep thanks to all of my colleagues for th eir assistance in navigating this vast amount of

material on effectivités and conduct, and in particular to An jolieSingh of the Indian Bar and to

AdrianaFabra of the University in Barcelona. Gath ering all of this material has not always been

78
Statement of Bob Ward McNab Bodden, CMH, Vol. 2, Ann. 86.
7CR 2007/8, p. 49 and footnote 56. - 39 -

the easiest of tasks, as I am sure the Members of the Court will appreciate. So I want to express my

gratitude, in particular to all of my Hondur an colleagues, but in particular to one,

Engineer Luis Torres. He took a great role on the issues of conduct and effectivités, but very sadly

he passed away between the close of the written pleadings and the opening of these oral hearings.

He was a man of dedication and inte grity. He and I were the same age, so I feel his loss very

keenly. The Republic of Honduras and his family have every right to be deeply proud of the

contribution that he made to this case.

57. Madam President, I thank you very much fo r your kind attention and invite you, perhaps

after the coffee break, to call to the Bar Mr. David Colson.

The PRESIDENT: Thank you very much, Professor Sands. The Court will now rise.

The Court adjourned from 11.25 to 11.40 a.m.

The PRESIDENT: Please be seated. Yes, Mr. Colson.

Mr.COLSON: Thank you very much, Madam President. Madam President, Members of

the Court, before I begin perhaps I could just say a word about the plans of the Honduras team for

the next remainder of today and tomorrow. It has been decided that I will be the last speaker for

Honduras in this first round of pleadings. I have a longish speech which will certainly go through

today. I will make every effort to end it at about the time of the coffee break tomorrow, the normal

coffee break time. The Registry and the translators have a portion of that speech for today. I will

not get all the way through it, but we will pick up wherever we end today and we will supplement it

and we will then proceed tomorrow with additional maps in your folders.

T HE H ONDURAN LINE

1. My task is to present the Honduran line and to discuss its equitable character.

2. Honduras and Nicaragua are party to the 1982 Law of the Sea Convention. Thus, the law

governing this case, the maritime delimitation in this case, is Articles15, 74 and 83 of the

Convention, as has been reviewed by Professor Dupuy. - 40 -

3. There is nothing in the Law of the Sea Convention pertaining to lines of allocation of

sovereignty, which is what Nicaragua requests. The Convention is based ⎯ and its Articles of

delimitation are based ⎯ on an understanding of the territorial sovereignty of coasts, both the

mainland and the islands, and then the application of that law and the application of delimitation

method based upon that appreciation. The approach of Nicaragua is backward; it has no basis in

law; it is without precedent; and were the Court to go down the road suggested by Nicaragua of

deciding a maritime boundary line without reference to territorial sovereignty, letting sovereignty

be determined by reference to the line created, I submit it would have far-reaching implications,

worldwide, in island and maritime boundary disputes.

4. In consideration of the application of Articles 15, 74 and 83 of the Law of the Sea

Convention to this case, Honduras believes that its lin e is fully in keeping with those provisions.

Why?

5. First, the line that is proposed by Hondur as runs east separating the islands that belong to

Honduras from the islands that belong to Nicaragua.

6. Second, as you have just heard and has b een amply demonstrated by Professor Sands, the

line proposed by Honduras marks a tacit modus vivendi honoured for a period of almost two

decades, reflected clearly, and unmistakably, in the oil conduct of the Parties. The Court has been

right to be wary of oil conduct arguments in the cases. The Court, however, after review of oil

conduct that has been presented to this Cour t, at paragraph 304 of its Judgment in the Cameroon v.

Nigeria case, the Court indicated that where oil conduct reflects a modus vivendi it has relevance to

the delimitation and Honduras believes that the facts in this case make that holding applicable here.

7. Third, the line proposed by Honduras follows a line of latitude. Lines of latitude and lines

of longitude are widely used in the practice of States to mark their mar itime delimitations and

certainly, we may say, more so than the bisector method.

8. Fourth, as we shall see when we review the matter tomorrow, the Honduras line is a line

that is more equitable. It is more favourab le to Nicaragua than a provisional equidistance line

would be. - 41 -

THE BASIS AND CHARACTERISTICS OF THE TRADITIONAL LINE ,
WHICH IS THE H ONDURAN POSITION

9. To begin the discussion of the Honduran line, it may be useful to review first its technical

characteristics, and then I will turn to its legal basis, in history and geography and the conduct of

the Parties. And then, in the second part of this presentation, we will use those factors again to

demonstrate the equitable character of the Honduran line.

A. The technical characteristics of the traditional line

10. So, let us begin the discussion of the technical characteristics of the line.

1. Where the land boundary meets the Sea

11. In its Application, Nicaragua requested the Court to

“determine the course of the single maritime boundary between the areas of territorial

sea, continental shelf and exclusive econom ic zone appertaining respectively to
Nicaragua and Honduras . . .”

in the Caribbean Sea.

12. This formulation of the question avoids re ference to the starting-point. However, as I

think we all understand by now, the position of the st arting-point must be determined if there is to

be a delimitation of the territorial sea, the contin ental shelf and the exclusive economic zone. The

determination of the position of the starting-point is made difficult here because of the accretion, in

particular, that occurs at the mouth of the river where the land boundary meets the sea.

13. Both Parties have suggested solutions to this problem. And before coming to them,

however, it might be useful, as others have done, to review the legal process once again by which it

was determined that the land boundary betw een Honduras and Nicaragua reaches the Caribbean

Sea at the mouth of the Rio Coco.

(a) The 1906 Award

14. In the years leading to the beginning of the twentieth century, Honduras and Nicaragua

contested the location of their land boundary resulting in very large areas to be in dispute between

the two countries. Ultimately, there was a 1994 treaty which established a Mixed Commission and

it provided for arbitration if the Mixed Commi ssion could not complete its work. The Mixed

Commission had success. It had success from the Gulf of Fonseca into the inte rior, to the vicinity - 42 -

of the Portillo de Teotacacinte. From there to th e Caribbean coast, however, the dispute remained,

and it was the boundary from the Portillo to the Cari bbean coast that was the subject of the King of

Spain’s Award in 1906, an Award, as we know, that was based in the uti possidetis principle, as the

parties had requested.

15. Nicaragua argued at that time that it was entitled to a land boundary that reached the sea

at Cape Camarón. We are going to put on the screen now a map that you have seen before. This is

a map that represents Nicaragua’s claim before the King of Spain (plate 9 from the Honduran

Counter Memorial (figure 1). Professo r Greenwoood referred to this map and

Professor Sánchez Rodríguez used something simila r in his presentation. This shows Nicaragua’s

view of its uti possidetis entitlement. And as this figure records in the lower right-hand corner, it

records the words or a part of what Nicaragua requested from the King of Spain. Nicaragua

requested “the meridian which passes through Cape Camarón, which follows this meridian until it

loses itself in the sea, leaving to Nicaragua Swan Island”. And you can see at the upper part of that

blue-shaded area the location of Swan Island that Nicaragua claimed at the time. Nicaragua

claimed a substantial part of the coast that is today accepted as Honduras and, likewise, Nicaragua

expressly claimed Swan Island.

16. Why did Nicaragua’s claim refer to Swan Island and to this island alone? We know by

now that there are many other islands in that blue shaded area. Presumably Nicaragua then would

also have claimed all of those other islands that are north of 15º latitude ⎯ that are covered in blue

shade in this figure ⎯ but Nicaragua’s claim did not refer to them. Why not? By virtue of the

uti possidetis principle, these islands were not terra nullius . Nor, presumably, did Nicaragua

believe these islands belonged to Honduras if Nica ragua claimed the coast all the way to Cape

Cameron. Could it be simply that it was understood ⎯ understood at the time and understood in

the Spanish Empire ⎯ that the small islands off the coast ⎯ adjacent to the coast ⎯ automatically

followed the sovereignty attributed to the coast, but that Swan Island, being larger and more remote

and about 100 nautical miles from the coast, was na med, in its pleadings, to leave no doubt about

its claim?

17. Now in all events, the King of Spain awarded this coast to Honduras ⎯ this long stretch

of coast between Cape Camarón and Cabo Gracias a Dios, the coast that we measure to be about - 43 -

130nautical miles long. It is true that the Ki ng of Spain’s Award makes no reference to islands,

but having regard to the uti possidetis principle it is impossible, I submit, to avoid the conclusion

that sovereignty over islands a nd sovereignty over the coast off wh ich those islands lie could only

be different if there was an affirmative finding to that effect.

18. As for the land boundary, the 1906 Awa rd determined that the land boundary on the

Caribbean side begins at the mouth of the Rio Coco. I apologize now for reading the key passage

from that Award which was quoted by the Agent for Honduras on Monday, but I believe it is

important to focus our minds once again on this passage at this stage in our discussion. The Award

states, in the translation recorded at page 202 of this Court’s 1960 Judgment:

“The extreme common boundary point on the coast of the Atlantic will be the
mouth of the River Coco, Segovia or Wanks, where it flows out in the sea close to
Cape Gracias a Dios, taking as the mouth of the river that of its principal arm between

Hara and the Island of San Pío where said Cape is situated . . .”

And the Award continues, and indeed that sentence continues:

“leaving to Honduras the islets and shoals existing within said principal arm before

reaching the harbour bar, and retaining for Nicaragua the southern shore of the said
principal mouth with the said Island of San Pío, and also the bay and town of Cape
Gracias a Dios and the arm or estuary called Gracias which flows to Gracias a Dios

Bay, between the mainland and said Island of San Pío.”

And further on in the Award, the Award determines that the boundary “will follow the...

thalweg . . . upstream” as the boundary between the two countries.

19. Now let us put on the screen a map ⎯ this was mapAP1 in ProfessorPellet’s

presentation on 8 March 8 (figure 2). There are two matters concerning this map that I would like

to point out. First, there is a point that is id entified by a diamond which purports to indicate that

this location marked the mouth of the river in 1906. Now I cannot say that it does not, because I

don’t know. But I would submit that this is an entirely speculative demonstration by Nicaragua. It

has absolutely no evidence to support this position. The second point that I would like to point out,

is simply at this stage to take note of the island that is in the mouth of the river. We will talk quite

a bit about islands in the mouth of the river in the next few minutes. The King of Spain Award

says that the islands and shoals in the principal ar m of the river belong to Honduras. As we shall

see, when we look at the satellite images, these sediment islands ⎯ and they are sediment islands,

they are sand shoals really, that build up in the river mouth ⎯ they build up in the river routinely, - 44 -

they disappear routinely, and they often end up attaching themselves to one bank or the other on

either side of the principle arm of the Rio Coco.

(b) The 1960 ICJ case

20. Now we know, of course, that Nicaragua challenged the 1906 Award on various grounds.

Ultimately, Honduras was able to bring the continuing dispute before this Court (figure 3). Now on

the screen is a map that ProfessorGreenwood showed in his presentation on Monday, it was his

No. 2 (CJG2). And this was a map that is found in the Honduran pleadings in the case. The map is

dated 1959, but we should make clear that it is not clear to us now when the data that is shown on

this map was collected. But let’s look at this map and what the King of Spain’s Award says. You

can see the river, you can see the large Honduran island of Hara, you can see the island of San Pío

that is left to Nicaragua, you can see the very slender estuary of Gracias, you can see

GraciasaDios Bay, and you can see the locati on of a very small town of GraciasaDios on

GraciasaDios Bay. You can also see that there we re islands then in the mouth of the river, and

there is a line that marks the thalweg as unders tood by Honduras at the time, running between the

islands belonging to Honduras and the coast of Nicaragua’s San Pío.

21. Now I would like to pause for just a moment here in this discussion to speak of this small

town of Gracias a Dios. Last week in his opening statement the Agent of Nicaragua spoke as if this

town was a port, and he referred to it as being located “at the mouth of the Coco River”

(CR 2007/1, p. 26, paras. 37-38). There was even a graphic prepared by the Nicaraguan team that

had a label of a port ⎯ a Nicaraguan port ⎯ on the Rio Coco, at the mouth (graphic 13). Now

Honduras is unaware of a Nicaraguan port or town on the Rio Coco anywhere near its mouth. No

Nicaraguan port on the Rio Coco is shown on modern nautical charts. Charts and maps of this area

show a small town located on Gracias a Dios Bay, just as is shown on this 1959Honduran map.

Now if Honduras is in error about this, Nicara gua will have the opportunity to provide some

evidence of the location of the Nicaraguan port, that it says exists at the mouth of the Rio Coco, in

its second round.

22. Among Nicaragua’s arguments before this Court almost 50 ⎯ or more than 50 years ago

now ⎯ was the argument that the 1906Award w as not capable of execution by reason of - 45 -

omissions, contradictions and obscurities. And in this regard, Nicaragua argued that the mouth of a

river is not a fixed point and cannot serve as a common boundary.

23. This Court, in its 1960 Judgment, made the following observation.

“The operative clause of the Award [speaking of the King of Spain’s Award], as
already indicated, directs that ‘starting from the mouth of the Segovia or Coco the
frontier line will follow the vaquada or thalweg of this river upstream’. It is obvious
that in this context the thalweg was c ontemplated in the Award as constituting the

boundary between the two States even at the ‘mouth of the river’. In the opinion of
the Court, the determination of the boundary in this section should give rise to no
difficulty.” (I.C.J. Reports 1960, p. 216.)

24. Thus, the uti possidetis boundary between Honduras and Nicaragua ⎯ determined by the

1906 Award and confirmed in the 1960 case before the Court ⎯ reaches the sea at the intersection

of the thalweg of the Rio Coco with the line that closes the river mouth. The islands and shoals in

the river belong to Honduras.

2. Characteristics of the mouth of the Rio Coco

(a) The Rio Coco

25. As the Court appreciates, the Coco River drains a large area of the interior of Central

America. Thus, it carries a heavy load of sed iment, and it reaches the sea where the coastal

currents are relatively weak. The result is that the river mouth is constantly changing its shape, and

unstable islands and shoals form in the mouth wh ere the river deposits much of its sediment. I

believe the Parties agree on this.

(b) The 1962 Mixed Commission

26. The pleadings of the Parties detail the work of the 1962 Mixed Commission 80 and there

is little to be added here, except the following. The Commission found that the Rio Coco then

emptied into the sea through three branches: ther e was a northern branch, and a southern branch,

and an eastern branch, and it determined th at the thalweg was in the eastern branch ⎯ the middle

branch ⎯ which it referred to as the Brazo del Este. The report of the Commission referring to this

branch states: “[a]nd the third branch, which flow s in an easterly direction, is generally about

160m wide, but at certain points as much as 500 meters wide, and empties into the sea. It was

80
MN, Vol. II, Ann. 1. - 46 -

noted that there are no islets in this branch.” 81 So by the time the 1962 Commission did its work,

the islands in the mouth of the river, that had been shown on the 1959Honduran map, had

disappeared, and ⎯ as we will see when we look at the satellite photos ⎯ we can see that that

might well be the case, the common case, in these is lands that form and disappear at the mouth of

the river. It would seem that in this case, in those years at the end of the 1950s and early 1960s, the

islands that Honduras had observed in the mouth of the river probably became attached to the

Nicaraguan shore.

27. The point marking the mouth of the river agreed by the 1962 Mixed Commission is the

only precise point that is established in the prac tice of the Parties, in implementation of the

1906Award, that is relevant here. Now let us refer for a moment to the map prepared by the

1962Mixed Commission. This is the same map that ProfessorPellet showed last week as his

map AP2.1. However, we are using our own scan of this map (figure 4) because we feel it is a bit

clearer, but it is indeed the same map taken from the Mixed Commission’s report. Here one can

see the northern arm, observed by the Mixed Commission, called the Canal del Norte. You can see

the southern arm, which the Mixed Commission referred to as Canal Roman, and you can see the

middle or eastern arm ⎯ and if you can read the fine print it says “Brazo del Este”. I would like

also simply to point out here that there is no town of Gracias a Dios on this river. It is shown here,

located on the bay of Gracias a Dios, considerably south of the mouth of the river, and it appears in

the same location as it appeared in the 1959 Honduran map.

3. State practice in similar circumstances to that of the Rio Coco

28. It is not uncommon for the boundary between two States to follow a river to the sea. It is

also not uncommon for the mouth of a river to be subject to accretion and erosion as it is in this

case, or for unstable islands and shoals to build in the mouth of the river. Thus, while the position

may be fixed in law, the geographical position will shift as the mouth of the river shifts, and this

creates difficulties in establishing the starting-point for maritime boundaries. However, as the

practice of States shows, this problem can be dealt with in numerous ways.

29. I would just now refer to three examples from State practice.

8Report of the Honduran-Nicaraguan Joint Boundary Co mmission on the Studies Made at the Mouth of the

Coco, Segovia, or Wanks River. Id., p. 19. - 47 -

(a) Mexico-United States

30. One approach is that adopted by Mexico and the United States to deal with the changing

character of the mouth of the Rio Grande. Nicaragua has referred favourably to this example. In

the negotiations that led to the 1970 Mexico-Unite d States treaty, it was understood that the mouth

of the RioGrande could shift by as much as 1.5 nautical miles from north to south in any given

year. The parties to that treaty agreed to establis h a fixed point at sea, seaward of the river mouth

as it then existed at the time of the negotiations. They agreed further that from the middle of the

mouth of the river, as it might exist at any time, the first segment of the territorial sea boundary

would extend from that ambulatory point ⎯ it would extend though in a straight line to the

seaward fixed point. This technique is recorded in Article5 of the 1970 Mexico-United States

82
treaty . There are citations to these treaties in the International Maritime Boundaries Reports of

the American Society of International Law in the prepared text.

(b) China-Vietnam

31. The second example that I would note is the 2000 China-Vietnam maritime boundary

accord 83.

32. In this situation, the China-Vietnam la nd boundary follows the Beilun River to the sea.

And this river mouth creates the same kind of problems ⎯ it is always shifting about and banks

and flats and sand bars form. That agreement establishes a territorial sea boundary extending from

a defined point1, through points 2 to 6, to a de fined point7. Article3(3) of that agreement

provides that no matter what topographical changes may occur, the delimitation line will not

change unless mutually agreed. Thus, in this ex ample of practice, the agreed territorial sea

boundary will continue to serve as a national border no matter what physical changes occur at the

river mouth, including that line actually could divide between the parties island and low-tide

elevations as they form in future years.

82
International Maritime Boundaries, Vol. I, Report No. 1-5.
8International Maritime Boundaries, Vol. V, Report No. 5-25. - 48 -

(c) Angola-Namibia

33. Just a third example, and this is found in the 2002 agreement between Namibia and

Angola. There the land boundary follows the Cune neRiver to the sea, and there is the same

problem of a river mouth that shifts about, where s hoals and flats and islands form in the mouth of

the river. The parties there agreed that their maritime boundary will be a line of latitude. This line

of latitude will extend all the way to the 200 nautical -mile limit. But, since the exact mouth of the

river may not always be on the latitude that the pa rties agreed to, the parties agreed to establish a

commission to deal with that irregularity, and like in the China-Vietnam agreement, those countries

provided in Article V of their treaty that if the line of latitude that serves as the maritime boundary

crosses an island that may form, the line of latitude will continue to be the border between the two

84
States .

34. Now, Honduras brings these examples to the Court’s attention to illustrate some of the

methods States use to deal with shifting river mouth problems. There is no right or wrong way; it

is simply a matter of adopting a technique that makes sense in the circumstances.

4. Thepresentsituation

(a) Accretion/erosion

35. Since the Mixed Commission determined the mouth of the Rio Coco more than 40 years

ago, there has been a constant reshaping of this river mouth, with the overall result that it has

moved eastward. It is also the case that an unsta ble island feature has now reformed in the mouth

of the river. There is a major difference, obviou sly, between the Parties. Nicaragua’s pleadings

have assumed that it is sovereign over the islands an d shoals in the mouth of the river. Nicaragua

has not explained this departure from the 1906 Award , which is specific that the islands and shoals

within the principal arm of the Rio Coco belong to Honduras.

36. On the screen we are putting up a figur e which you have seen before (figure 5, plate 19

CMH). Several of my colleagues have referred to this figure and it appeared in both the Honduran

Counter-Memorial and Rejoinder. It shows a set of satellite photos of the river mouth in seven

different years from 1979 to 2001. On this set of images, the white dot represents the 1962 Mixed

84
International Maritime Boundaries, Vol. V, Report No. 4-13. - 49 -

Commission point. I might explain that each one of these grid squares is 1' of latitude and 1' of

longitude. Roughly, and I say roughly, laymen might look at this and think of those as 1-mile

squares. A close examination of these figures ⎯ and I will take you through them in a moment,

each one of them individually ⎯ reveals the power of nature to reshape the river mouth. No two

photos are identical and each differs in substantial ways from the one that precedes it in time.

37. Now I propose to look closely at each im age, and as you examine the features that

change, I would urge you to keep your eye on the line of longitude that we have highlighted on this

map in yellow, which is 83°08'W, and the grid line marking 15°N. I am simply highlighting

these for no specific, shall I say, legal purpose, but I think it will help you as we go through this

demonstration to keep your eye on those grid lines as you see the figures change shape. And as we

end this demonstration, we will add to this , using the same 2006 image that Honduras has

introduced in this pleading.

38. In 1979 one sees an island that is forming just north of 15° N, and it is at this time west

of 83° 08' W.

39. Two years later, in 1981, that island is getting bigger ⎯ in two years ⎯ its eastern edge

is now up to 83° 08' W, and, as well, we can see th at there are two small features forming south of

15° N.

40. In 1985, the shape of the larger island north of 15°N has changed ⎯ its shape has

changed ⎯ but overall, we would say, its location is about the same. But we could also say that

the features south of 15° N are expanding.

41. In 1989, the large island north of 15° N has again changed shape but overall its location

has remained about the same. But look what happened to the south. The Nicaraguan mainland has

migrated east, all the way to 83° 08' W. And now , we can see also, there is a new island forming

that is east of 83° 08' W.

42. When we look at the 1993 image, there really is not much to note that is different from

1989.

43. So, we will move on to 1997. North of 15° N, the large island that has been apparent

since 1979 has disappeared. It has become part of the Honduran mainland. And, as we can see, the - 50 -

little island that was forming east of 83°08'W, has become a much larger island and it is now

clearly straddling 15° N.

44. Now, looking at the 2001 image, unfortunately, we find that there is a cloud in the wrong

spot ⎯ some shadow in the wrong spot and we cannot see things quite so clearly as we might like.

But, it is possible to say that the island straddling 15° N has become larger.

45. Now we will turn to the 2006 image that Nicaragua has provided and what can we see

here? The island straddling 15°N would appear to have become larger, and we can see also that

there is a new island forming a bit to its north and east of the tip of the Honduran mainland.

ProfessorQueneudec pointed this out yesterday when he showed the 2004 satellite image that

Honduras introduced. He showed the initial formati on of this little feature in 2004 and now you

can see in this 2006 image that there is a significant feature forming in that location.

46. About all that can be said is that the Parties have it right when they agree that the mouth

of the river changes. What is not correct is wh en Nicaragua argues that the mouth of the river

always opens to the north or north-east. It is hard to see how Nicaragua could provide evidence of

that in light of the satellite images over almost a 30- year period. The fact is that in any given year

the river mouth ⎯ and we normally think of river mouths as being marked by the headlands on the

mainland ⎯ that the river mouth changes ⎯ it may face east, may tilt a bit to the north of east, it

may tilt a bit to the south of east but mostly it f aces east and it will change its characteristics every

year.

47. Now, there is no evidence before the Court concerning the thalweg in the mouth of the

river; no evidence before the Court concerning the thalweg in the mouth of the river anywhere east

of the 1962 Mixed Commission point; nor has Nicaragua set forth an argument as to why it is

sovereign over an island in the river when the Award of 1906 says that the islands and shoals

belong to Honduras. And it seems obvious based on these satellite images that as islands have

formed in the mouth of the Rio Coco, as the rive r drops its sediment where it reaches the sea, those

islands have become connected to the mainland on e ither side of the river, over time; sometimes

on the Honduran side and sometimes on the Nicara guan side. The central characteristic of these

changes being that the peninsula formed by the Rio Coco overall accretes east along 15° N latitude;

as Professor Queneudec emphasized yesterday, the accretion building up on either side of the - 51 -

RioCoco, does so in a rather symmetrical way a nd this has led to the symmetrical shape of the

peninsula of Cabo Gracias a Dios on either side of the Rio Coco.

48. The characteristics of the river mouth led both Parties to agree by the close of the written

pleadings that it would not make sense to give the problem of how to address the shifting river

mouth to the Court ⎯ that is to say, how to get from the 1962 Mixed Commission point to a point

seaward of the river from which the maritime delimita tion can begin. The Parties, by the close of

the written pleadings, had agreed. They had agr eed that from the point fixed by the 1962 Mixed

Commission to a point to be determined by this Court seaward of the mouth of the river, the Parties

would bear the responsibility of determining their jurisdictional relationship in that area. The

Parties of course chose different locations for that seaward fixed point but they were prepared to

leave that issue ⎯ they were prepared to leave it for the Court to decide where that seaward fixed

point should be. But now it no longer appears that Nicaragua agrees that the boundary between the

1962 Mixed Commission point, and the seaward fixed point to be determined by the Court, is to be

left to the Parties. Nicaragua, apparently, want s the Court to determine that boundary. Honduras

does not agree with that position.

(b) Nicaragua’s position and criticism

49. Now, before coming to this new point of disagreement, let me turn to the Nicaraguan

position for the seaward fixed starting-point. Now we are placing on the screen a new figure and

this is all eight images now and we have simply expanded the geographic scope of these images ⎯

this is my figure6 in the judges’ folder. This is the same set of satellite photos but we have

expanded the geographic range of the boxes a bit, so that we can put on these images the location

of the point proposed by Nicaragua and the point proposed by Honduras.

50. The Nicaraguan position appears to be as follows, as expressed in paragraph23 of

Chapter VII of its Memorial:

“The proposed starting line would be located at a point along that median line
direction situated 3 nautical miles out to sea from the mouth of the Coco River. This

point is located in the following geographic coordinates: 150 º1'3N,
83º 05' 36" W.” (P. 83.)

51. We are now adding a label to show Nicar agua’s proposal for the fixed point to be

determined by the Court. Nicaragua later refers to this fixed point at paragraph 10.6 of its Reply: - 52 -

“[t]his point . . . represents an approximate median line and the sector produced by this method is

coincident with the alignment resulting from the bisector method . . .” (p. 197).

52. So, if we understand correctly, the follo wing may be said about Nicaragua’s proposed

seaward fixed point.

1. First, when Nicaragua identified this point, th e point was three nautical miles from the opening

of the river ⎯ from some opening of the river ⎯ presumably as that opening existed at some

moment in time, but we are not told when.

2. Second, when Nicaragua identified this point, th e point was on a version of an equidistance or

median line extending from what Nicaragua re fers to as the mouth of the river, again

presumably as that mouth and that consequent equidistant line existed at some moment in time,

but we are not told when. This is a major problem. It would appear that Nicaragua has

assumed that the developing islands and shoals in the mouth of the river belong to Nicaragua,

which they do not. The King of Spain awarded the islands in the river to Honduras. Nicaragua

cannot use a Honduran island at the mouth of the river as a Nicaraguan base point in applying

the equidistance method. Thus Nicaragua has applied the equidistance or median line method

incorrectly by taking Honduran islands to be Nicaraguan base points.

3. Third, we are told that Nicaragua’s proposed seaward fixed starting-point just so happens to

align with Nicaragua’s bisector proposal, but that it also arises from the application of the

median line or equidistance line method, even though Nicaragua argues that the equidistance

method is impossible to apply in this case. Nicaragua’s approach is curious; it uses

equidistance in the most unstable of situati ons and it refuses to acknowledge its application

elsewhere.

53. So, indeed, Nicaragua proposes a seaward fixed point. Its geographic co-ordinates are

precise, we know where that point is, but that is its only merit. What is the basis for that seaward

fixed point? Both Parties have proposed to iden tify a seaward fixed point because they both agree

that the mouth of the river moves. Yet Nicara gua proposes that the Court adopt a point that was

itself established by reference to the unstable character of the river mouth ⎯ a median line point

three nautical miles seaward of the mouth of the river based on Nicaragua’s interpretation of the

mouth of the river at some unknown moment in time : and we have seen that Nicaragua apparently - 53 -

used a Honduran island as a base point in its cal culations. Whatever may be the case, if you

applied Nicaragua’s method today you would get a different fixed point. You would get a different

one next year. Moreover, if you applied it correctly by treating the island in the mouth of the river

as Honduran, Nicaragua’s seaward fixed point would be located well south of the 15th parallel. So

Nicaragua’s proposed seaward fixed point is based in theory on the ambulatory nature of the river,

it is based on an incorrect assumption in the appli cation of the equidistance method; and it just so

happens to coincide with the bisector line.

(c) The merits of the Honduran position

54. Now let me turn to the Honduran position for the seaward fixed starting-point. Honduras

believes that it is for the Parties to determin e their jurisdictional relationship between the

1962 Mixed Commission point and the seaward fixed starting-point to be established.

55. In the Rejoinder Honduras proposed that the seaward fixed starting-point lie at

14º 59.8' N., 83º 05.8' W. We have now added the Honduran poin t to each of the boxes on the

screen. Thus the Court can see the mouth of the river in selected years, the 1962 Mixed

Commission point, and the Honduran and Nicaraguan proposals for a seaward fixed starting-point.

56. The Honduran seaward fixed starting-point is located 3nautical miles east of the point

fixed by the 1962 Mixed Commission. Honduras believes that between the point fixed in 1962 and

the Honduran proposed seaward point it is for the Parties to arrive on an arrangement on

delimitation requirements. The Honduran position has the merit of being based upon an agreed and

established point rather than on the shifting river mouth, where unstable is lands and shoals form.

And as can be seen, in most years, the Honduran proposal is in a more normal alignment with the

opening of the mouth of the river than the point proposed by Nicaragua.

57. Now, in concluding this discussion of the starting-point, it might be useful to examine

the eight conclusions of ProfessorPellet whic h he set out in his presentation on 9March

(CR 2007/5, pp. 12-13, para. 45), just to see where the Parties agree and disagree.

58. His first conclusion was that the land is accreting seaward. We agree.

59. His second conclusion was that it will do so in an east-north-east direction. We disagree.

As shown on the satellite images we have presented, the accretion that occurs in the building up on - 54 -

both sides of the Rio Coco, that accretion builds up so that the peninsula overall moves virtually

due east along 15° N latitude. And the symmetry of the peninsula formed by its shape is evidence

of the symmetrical deposition of the sediments.

60. His third conclusion was that the 1906 Award should be respected. We agree with that

conclusion.

61. His fourth conclusion was that the thalweg at the mouth of the river marks the end of the

land boundary. We agree, but we do so noting Pr ofessor Pellet’s acknowledgment that there is no

evidence in the record as to the location of the thalweg absent the 1962 Mixed Commission point,

and subject to the King of Spain’s Award, that the islands and shoals in the river belong to

Honduras.

62. His fifth conclusion was that the mouth of the river shifts. Again we agree.

63. His sixth conclusion was that the Parties have agreed to limit the problems to be posed to

the Court in connection with the starting-point. Ou r response is that we thought that was true until

we heard last week the elaboration of a new pos ition by Nicaragua that the Court should address

the line from the 1962 Mixed Commission point to the seaward fixed point to be decided by the

Court.

64. His seventh conclusion was that there should be a “neutral” point ⎯ the word he used

was “neutral” ⎯ at sea from which the mariti me delimitation should begin. We have agreed that

there should be a point at sea to be determined by the Court from which the delimitation of the

single maritime boundary should begin. The point is not designed to be “neutral”, however, it is

designed to serve as a hinge, it connects on the one hand a delimitation to be undertaken by the

Parties between the 1962 Mixed Commission point and that hinge point, and on the other hand, the

delimitation that this Court will establish that will run seaward from that hinge point.

65. Finally, Professor Pellet’s eighth conclusion introduces Nicaragua’s new idea that the

Court articulate how the boundary is to run from the 1962 Mixed Commission point to the seaward

fixed point. Honduras believes this should be left to the Parties, as both expressed in their written

pleadings.

66. To conclude the discussion of the starting-point, let me present one other graphic with a

figure shown by Nicaragua (figure 7). This is Mr . Brownlie’s (IB14) showing Nicaragua’s version - 55 -

of an equidistance line at the mouth of the Rio Coco . It is fatally flawed as it assumes that islands

at the mouth of the river belong to Nicaragua. So, le t us add to this figure a short median line that

is correctly drawn using Nicaragua’s mainland and Honduras’s island. You can see that now. Now

we will add the location of the Honduran proposal for a seaward fixed point. We believe this

graphic clearly demonstrates the merit of the Hondur an proposal. We also believe it demonstrates

the wisdom of leaving it to the Parties the question of how the line is to run and how it is to deal

with these islands in the mouth of the river issues, how that is to happen out to the seaward fixed

point. The relevant issues associated with the legal characteristics at the mouth of the river, and the

technical characteristics ⎯ the hydrology and the location of the thalweg have not been addressed

in the pleadings before the Court. Thus we believe the prudent course would be to leave this to the

Parties as both had agreed in their written pleadings.

Madam President, this brings me to a point where it would be convenient for me to stop and,

if you would agree, we could do that now and we will resume the discussion tomorrow?

The PRESIDENT: Yes, we can do that and we can be flexible about the coffee break time or

the ending time tomorrow morning as well. Thank you, Mr. Colson.

The Court now rises.

The Court rose at 12.55 p.m.

___________

Document Long Title

Audience publique tenue le jeudi 15 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)

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