Non-Corrigé
Uncorrected
CR 2007/2
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2007
Public sitting
held on Tuesday 6 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 mardi 6 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. The session is open. The Court meets today to hear
the continuation of the first round of the oral ar gument of Nicaragua. Mr. Brownlie, we shall have
the pleasure of a long pleading from you this morning and I now give you the floor.
Mr. BROWNLIE: Thank you. Madam President, distinguished Members of the Court,
Drawing the line:
the method which achieves an equitable result
1. It is my task today to explain the method of delimitation which Nicaragua considers to be
legally appropriate in the circumstances of the present case for the purposes of the delimitation of
the disputed areas of the continental shelf and exclusive economic zone.
The issues on which the Parties agree
2. By way of introduction, I can deal briefly with certain questions on which the Parties more
or less agree. The leading elements of the agreement are these.
3. In the first place, there is the agreement of the Parties in requesting the Court to establish a
single maritime boundary. This agreement is eviden t in the Application of Nicaragua and in the
submissions of both Parties. It is true that in her submission in the Counter-Memorial Honduras
refers to “the line” or “a line”. But in the submissi ons in the Rejoinder she refers explicitly to “the
single maritime boundary”. Honduras also states in her Counter-Memorial, “that the Court should
determine the location of a single maritime boundary . . .” (CMN, Vol. 1, para. 1.2).
4. Secondly, it is clear that in principle ther e is no disagreement of the Parties in respect of
the applicable law. I emphasize “in principle”. Thus it is agreed that the 1982 Convention is
applicable and that the Convention reflects custom ary international law in relation to the legal
principles relevant in the present case.
5. However, as Nicaragua has had occasion to point out, the practical treatment of the
applicable law on the part of Honduras is anomalous (RN, Vol. 1, paras. 8.10-8.27). In particular,
the Honduran argument adopts a cavalier approach to the identification of relevant circumstances. - 11 -
The boundary proposed by Nicaragua
6. I shall now move to the course of the bou ndary beyond the territorial sea which, in the
submission of Nicaragua, reflects the geography of the area and the applicable legal principles.
And now on the screen, this is graphic IB1 in your folders.
The graphic on screen is the large paper graphic at figure A of the Memorial, Volume III. It
does not project particularly well and throughout this speech I will use a digital replica of this
graphic, seen here as graphic IB2, which is both clearer on screen and more useful as a small
format printout.
7. The delimitation consists of the bisector of the lines representing the coastal directions of
the Parties. The Nicaraguan claim has been revised to reflect the new low-water line at the river
mouth, shown here as graphic IB3 of the Spot Satellite image scene dated November 2006.
8. The bisector is calculated from the general direction of the coast for Honduras, shown here
on graphic IB4 (bearing 098º10'48") and the gene ral direction of the Nicaraguan coast (bearing
007°19'54"). These directions generate a bisect or of bearing 052°45'21" which runs from the
mouth of the Coco River at 15°00'11"N, 83°07'54"W as a line of constant bearing until
intersecting with the boundary of a third State in the vicinity of Rosalind Bank.
9. The claim line crosses the 3-mile limit in position 15º 02' 00" N, 83º 05' 26" W. All
positions and directions are referred to the We ll Geoditic System, No.84, and are rounded to the
nearest second.
10. The line forms the boundary for the purposes of the delimitation of the disputed areas of
the continental shelf and exclusive economic zone . The starting-point of this sector of the
delimitation is located at the outer limit of the te rritorial sea. The line continues up to the area of
sea-bed in which the claims of third States come into play, as shown.
11. The point of departure and the terminus of the maritime boundary will be examined in
detail on Friday by my friend and colleague, Professo r Pellet, together with the delimitation of the
territorial sea.
The legal basis of the bisector method
12. I shall start with an examination of the legal provenance of the bisector method. As
Nicaragua has pointed out in the written pleadings, the method of producing an alignment has no - 12 -
legitimacy per se. The legal status of an ali gnment depends upon the equitable principles endowed
with judicial authority, and it is generally accepted that these principles give primacy to the
configuration of the coasts abutting upon the maritime areas to be divided. It follows that the
relevance and legal status of the equidistance met hod of constructing a line, is related to the actual
geographical situation and any other relevant factors, such as the location of a land boundary.
13. The bisector method has particular virtues in the geographical and political
circumstances present in this case. Moreover, for technical reasons relating to the problematic
status of the terminus of the land boundary, the e quidistance approach to delimitation is impossible
to apply in its appropriate form.
14. At this juncture, it is necessary to re call that in her Rejoinder Honduras proposes two
alternatives to the primary claim based upon the alleged conduct of the Parties. The first
alternative is resort to a provisional equidistance line and the second alternative is the construction
of a so-called perpendicular to the general direc tion of the coast. I refer to the Rejoinder at
pages130 to 132, where Honduras invokes an equidist ance line, this for the first time, which is
presented in a footnote (p. 131, footnote 17).
15. These proposals advanced on behalf of Hondur as will be revisited in due course, and at
this stage I shall focus upon the bisector method.
16. The virtues of the bisector method are accorded ample recognition in the doctrine. The
basic analysis was given by Gidel in 1934. In his words ⎯ and first there is a rubric:
“Faveur généralement rencontrée en pratique et en doctrine par la solution de
la ligne médiane perpendiculaire à la direction générale de la côte
La solution qui a la préférence est celle de la ligne médiane, c’est-à-dire la
solution qui tend à attribuer aux Etats limitr ophes une égale partie des eaux maritimes
proches de la côte. La ‘ligne médiane’ au sens étroit se rapporte aux cas où les voisins
se font face vis-à-vis d’une manière complète ou partielle, c’est-à-dire dans les
détroits, les archipels ou les baies . . .
Lorsqu’il s’agit de souverainetés qui s ont au contact latéral et non pas au
contact de front, la solution de la ligne médiane consiste à tracer au point frontière
terrestre une perpendiculaire à la direction générale de la côte. La solution de la
perpendiculaire sur la côte n’est donc qu’ une modalité spéciale de la ligne médiane
entendue au sens large . . .” (Le droit international public de la mer, t. III, Paris, 1934,
pp. 768-770 ; footnotes omitted.) - 13 -
17. In these passages Gidel recognizes that th e drawing of a perpendicular to the general
direction of the coast from the terminus of the land boundary is a logical extension of the median
line solution. The perpendicular is, of course, in the form of a bisector of an angle of 180º.
18. The same analysis is elaborated upon by ProfessorWeil in his authoritative work on
maritime delimitation. In the English edition the relevant passage is as follows:
“As for what method would be suitable to achieve a balanced spatial reduction
of the two overlapping areas, it is in the natu re of things that it should have the same
character as the legal title on which the projecti ons are based. In other words, like the
latter, it will be spatial.
For this purpose, the most appropriate method is that of equidistance, the spatial
nature of which is indisputable, since it is by reference to the distance between the two
coasts that it determines what reduction has to be made to each of the two competing
titles. Although it may affect the quantum, the equidistance method leaves the
principle of distance intact. Moreover, of all methods, equidistance would seem to
come closest to achieving the objective of an equal division of the overlapping
area . . .
Weil continues:
It should not, however, be overlooked that a more or less equal division of the
overlapping area can be obtained by other methods, ‘differing from it in varying
degree even while prompted by similar considerations’, for example, the
perpendicular, or the bisector of the angl e formed by the two coastlines. In some
respects these are just variations on the equi distance theme. This is particularly the
case with the perpendicular to the general direction of the coast, a method
recommended in the past for delimiting th e territorial seas because, when used
between adjacent straight coasts, it ach ieves the same equal division of the
overlapping area as does the median line between opposite coasts. Gidel, for example,
saw the perpendicular as a ‘special variant of the median line understood in its broad
sense’.” ( The Law of Maritime Delimitation ⎯ Reflections , Cambridge, 1989,
pp. 58-59; footnotes omitted.)
19. In the same context the Canadian expe rts Hankey and Legault recognize the bisector
method as a modification of the equidistance method, and introduce the subject with the heading
“Bisection of Angle Representing Coastal Fronts”. Their commentary then reads:
“Another means of modifying the equidistance method in order to discount the
effect of incidental coastal features and configurations on the course of the boundary
is to construct two lines, each representing th e coastal front of one of the parties, and
then to bisect the angle between the two construction lines. In the
Sharjah-UmmalQaywayn agreement, 1964 (N o.7-1-0), the parties constructed lines
between the terminal points of adjacent land frontiers and then bisected the angle
formed by the two construction lines. ” (Charney and Alexander (eds.), International
Maritime Boundaries, Vol. 1, Dordrecht, 1993, p. 210.) - 14 -
The relevant State practice
20. The use of geometrical methods of delim itation is evidenced by the practice of States,
and there are nine examples of such delimitation. For present purposes it will suffice to refer to the
key feature in each case. The solutions adopted will appear on the screen in sequence.
21. The first case is the delimitation between France and Portugal in 1960, shown here on
graphic IB5 (MN, p.111). The 240° azimuth bisects the angle formed by lines approximating to
the general direction of the coasts of Senegal and Guinea-Bissau respectively.
22. Secondly, on graphic IB6, there is the Seabed Boundary Agreement between Sharjah and
UmmalQaywayn in 1964 (MN, pp.111-12). Th e boundary was delimited using the bisector of
the angle formed by drawing straight lines between the terminal points of the land boundaries.
23. Thirdly, on graphic IB7, there is the Offshore Boundary Agreement concluded between
Abu Dhabi and Dubai in 1968. The resulting contin ental shelf boundary is perpendicular to the
general direction of the coast. The two States share a relatively straight coast in the vicinity of their
land boundary (see Charney and Alexander, Vol. II, pp. 1475-1480).
24. Fourthly, on graphic IB8, the delimitations agreed between the United States and Mexico
on 24November1976 and 4May1978 produce an alignment in the Gulf of Mexico which, in
substantial part, is similar to a perpendicular to the general direction of the coast (see Charney and
Alexander, Vol. I, 427-445, p. 22).
25. On graphic IB9 the next example is the Agreement between Brazil and Uruguay
concluded in 1972, which entered into force in 1975. The delimitation was constituted by a line
nearly perpendicular to the general direction of the coast (see Charney and Alexander, Vol.I,
pp. 785-792).
26. Here on graphic IB10 is the sixth exampl e of State practice, the Agreement between the
Government of Argentina and the Government of Uruguay relating to the Delimitation of the River
Plate and the Maritime Boundary between Argen tina and Uruguay, signed on 19 November 1973,
and which entered into force on 12Februa ry1974 (see Charney and Alexander, op. cit., Vol.I,
pp.757-776). The first sector of the maritime boundary (from point23 to PointA) is a
perpendicular to the line adopted by the Parties as the closing line of the Rio de la Plata. - 15 -
27. GraphicIB11 shows the seventh episode of the State practice and takes the form of the
Treaty Concerning Delimitation of Marine Areas and Maritime Co-operation Between the Republic
of Costa Rica and the Republic of Panama signed on 2 February 1980, and which entered into force
on 11February1982 (Charney and Alexander Vol.I, pp.537-549). The Geographer of the
US Department of State observes in relation to the boundary in the Pacific:
“The boundary extends from the land boundary terminus at PuntaBurica
southwestward to a point on the 5°parallel of north latitude 200nautical miles from
Punta Burica.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Although the Treaty states that this boundary also is a median line, it is also
more akin to a perpendicular to the genera l direction of the coast. To consider the
boundary an equidistant line one would have to disregard coastal irregularities and a
number of near-shore Panamanian islands and the Costa Rican Isla del Coco, the latter
of which is about 165nautical miles from the terminus of the maritime boundary.”
(Limits in the Seas , pp.4-5. Charney and Alexander adopt the same characterization:
op. cit., p. 544.)
28. The eighth episode of State practice, shown here on graphicIB12 consists, of the
Agreement between the Government of Brazil a nd the Government of France Relating to the
Maritime Delimitation Between Brazil and French Guiana concluded on 30January1981 (see
Charney and Alexander, op. cit., Vol.I, pp.777-783 (Report Number 3-3); ILM, Vol.25 (1986),
p. 367). The boundary established is perpendicular to the general direction of the coasts of Brazil
and French Guiana and the Agreement entered into force on 19 October 1983 (see figure XVII).
29. The final example, here on graphic IB13, consists of the Agreement between Estonia and
Latvia on the Maritime Delimitation in the Gulf of Riga, the Strait of Irbe and the Baltic Sea, which
entered into force on 10October 1996 (see Charney and Alexander, op. cit., Vol.V,
pp.2995-3017, p.3016). In the Agreement th e outermost section of the delimitation is a
perpendicular to the closing line across the Bay of Riga (see, in particular, Article 3).
30. Honduras offers no convincing criticism of the State practice recorded by Nicaragua in
her Memorial beyond the statement that: “A Review of Nicaragua’s discussion discloses that most
[of the agreements cited] are boundaries that are perpendicular to the general direction of the
coast.” (RH, pp.122-123, para.7.13.) But, Mada m President, this can hardly affect the force of
the argument of Nicaragua. - 16 -
In completing my examination of the State practice I would point out that there is no
pertinent difference between the use of a perpe ndicular and the use of a bisector. These methods
are similar both in legal and in geometrical te rms. The choice between the two methods depends
upon the geographical circumstances. A perpendicula r is a specific instan ce where the simplified
coasts are represented by a single straight line, more normally the relevant coasts have different
directions and a bisector is therefore used.
The advantages of the bisector method
31. It is now convenient to lay out the advantages of adopting the bisector method in the
process of maritime delimitation.
(a) The method reflects coastal relationships
32. In the first place, the method reflects coastal relationships. The preference for a
particular method of delimitation is governed by legal criteria and, in this setting, primacy is given
to geography and to coastal relationships. In cer tain geographical circumstances, resort to the
bisector method (or a perpendicular to the general direction of the coast) is the only appropriate
means of reflecting coastal relationships.
33. In the geographical circumstances of the present case, the equidistance method is more or
less impossible to apply. This is partly dictated by the technical problems of constructing an
equidistance line. The geographical features of the co ast in the vicinity of the river Coco have the
result that the base points would be located in a ve ry limited space on each side of the river Coco.
The problem is illustrated here on graphicIB14 and further explained in ChapterX of the
Memorial:
“If in the present case, a delimitation of the territorial sea were to be made
following a median line every point of which was equidistant from the nearest points
on the baselines from which the breadth of the territorial sea is measured, and were not
to take into consideration the special circ umstances in the area, the result would of
necessity be that the base points would be lo cated one on each margin of the river and
the median line would be equidistant only from these two points until reaching the end
point selected for the delimitation, however distant this point was located from the
coasts of both Parties . . .” (MN, p. 159, para. 25.)
34. The instability of this river mouth also gives rise to confusion. Shown here on
graphicIB15 is a wide variety of median line so lutions that have been supported at one time or - 17 -
another by the shape of the river mouth since 1979. And there is a further outcome which must be
avoided. Resort to the equidistance method in those circumstances would push the delimitation
further north than the direction of the line produ ced by the bisector-based alignment, and this
would produce an inequitable result, to the detriment of Honduras.
35. In simple terms, in the particular geogra phical situation, the coastal relationship is more
appropriately reflected in the bisector approach.
(b) The principle of equal division of areas of convergence
36. Secondly, the bisector method is compatible with the principle of equal division of areas
of convergence. In complicated geographical situations, the equidistance method may produce
markedly inequitable results. Thus, in the Gulf of Maine case, illustrated here at graphic IB16, the
Chamber avoided the equidistance method and adopted the principle of equal division as the
starting-point. In the words of the Chamber:
“To return to the immediate concerns of the Chamber, it is, accordingly,
towards an application to the present case of criteria more especially derived from
geography that it feels bound to turn. What is here understood by geography is of
course mainly the geography of coasts, which has primarily a physical aspect, to
which may be added, in the second place, a political aspect. Within this framework, it
is inevitable that the Chamber’s basic choice should favour a criterion long held to be
as equitable as it is simple, namely that in principle, while having regard to the special
circumstances of the case, one should aim at an equal division of areas where the
maritime projections of the coasts of the States between which delimitation is to be
effected converge and overlap.” ( Delimitation of the Mar itime Boundary in the Gulf
of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984 ,
p. 327, para. 195.)
37. In the circumstances of the present ca se, the bisector method produces a result which
satisfies the criterion to which the Chamber refers.
(c) The bisector method avoids giving undue influence to very minor coastal features
38. Thirdly, a number of authorities recommend the bisector method precisely because it
avoids giving undue influence to incidental coastal features. This element is highlighted by the
Canadian experts Legault and Hankey in their essay in the study edited by Charney and Alexander,
International Maritime Boundaries (Vol. I, p. 210). - 18 -
39. Moreover, the Chamber of the Court placed particular emphasis on the inadequacies of
the equidistance method in the geographical circumstances within the Gulf of Maine. In relation to
the first sector of the delimitation the Chamber observed:
“As it indicated in its comment on the line proposed by Canada, the Chamber
has objections as to the advisability ⎯ or even the possibility ⎯ of making use, were
it only in this sector, of the technical method whereby a lateral equidistance line, as
defined by geometry and by the terms of paragraph 2 of Article 6 of the
1958 Convention on the Continental Shelf, would be drawn between the two adjacent
coasts, and it has two grounds for these objections. In the first place, the Chamber
must point out that a line drawn in accord ance with the indications given by that
provision (‘equidistance from the nearest poi nts of the baselines from which the
breadth of the territorial sea of each State is measured’) might well epitomize the
inherent defects of a certain manner of interpreting and applying the method here
considered . . .; inasmuch as the likely end-result woul d be the adoption of a line all
of whose basepoints would be located on a handful of isolated rocks, some very
distant from the coast, or on a few low-tide elevations: these are the very type of
minor geographical features which, as th e Court and the Chamber have emphasized,
should be discounted if it is desired that a delimitation line should result so far as
feasible in an equal division of the area s in which the respective maritime projections
of the two countries’ coasts overlap .” (Delimitation of the Maritime Boundary in the
Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports
1984, p. 332, para. 210; emphasis added.)
40. The evidence thus produces confirmation of the substantial advantages which attach to
the use of the bisector method. And there are other advantages.
(d) The problematic status of the candidate for the starting-point of the delimitation
41. A prominent aspect of the cases in which resort is had to the bisector method is the
existence of problems of legal status attaching to the putative starting-point of the delimitation.
This issue assumed central importance in the Gulf of Maine case in relation to the line claimed by
Canada. In the part of the Judgment devoted to the first sector of the line drawn by the Chamber,
the reasons for avoiding the method of equidistance were set out in very clear terms:
“In the second place ⎯ and here is the main reason for the Chamber’s
objections ⎯ the determination in the sector envisaged of the course of a lateral
equidistance line, from whatever basepoi nts established, would encounter the
difficulty of the persistent uncertainty as to sovereignty over Machias Seal Island and
the Parties’ choice of point A as the obligat ory point of departure for the delimitation
line . . .
The Chamber is therefore of the opinion that, on these grounds, and the better,
moreover, to ensure the effective implementation of the criterion by which it has every
reason to be guided, it is necessary to re nounce the idea of employing the technical
method of equidistance. It considers that preference must be given to a method which,
while inspired by the same considerati ons, avoids the difficulties of application - 19 -
pointed out above and is at the same time mo re suited to the production of the desired
result. The essential premise of the operation, as the Chamber sees it, is to take note
of the fact that the point of departure of the delimitation line to be drawn, and hence of
its first segment, must be point A and no ot her point, whatever its justification.”
(Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America), Judgment, I.C.J. Reports 1984 , p. 332, paras. 211-212; emphasis
added.)
42. In the result the Chamber applied the princi ple of equal division to the first area to be
delimited, preferring the bisector method to that of equidistance. And thus the Chamber concluded:
“Accordingly, to put the above requireme nts into practice, one may justifiably
draw from point A two lines respectively perp endicular to the two basic coastal lines
here to be considered, namely the line from Cape Elizabeth to the international
boundary terminus and the line from that latter point to Cape Sable. These
perpendiculars form, at point A, on one side an acute angle of about 82° and on the
other a reflex angle of about 278°. It is the bisector of this second angle which the
Chamber considers that it should adopt for the course of the first segment of the
delimitation line. The Chamber believes that this practical method combines the
advantages of simplicity and clarity with that of producing, in the instant case, a result
which is probably as close as possible to an equal division of the first area to be
delimited.” (Ibid., pp. 332-333, para. 213).
43. A broadly similar modus operandi was adopted by the Court of Arbitration in the
Guinea-Guinea (Bissau) Maritime Delimitation case (MN, pp. 102-105). As the Award reveals, in
this case also, the status of the putative st arting-point was problematical (see the Award, ILR,
Vol. 77, pp. 682-683, paras. 105-107).
The roles of the bisector method: conclusion
44. I shall now summarize the roles of the bi sector method. In essence, two situations are
concerned. In the first place the method is a sine qua non in the cases in which the terminus of the
land boundary is not ascertained and/or is outside th e jurisdictional ambit of the pertinent tribunal.
In such cases the key political data are not av ailable and any potential base points are excluded
from consideration. Alternatively, as in the present case, the unstable character of the coastal
geography at the mouth of the Coco River creates an issue of propriety.
45. In consequence Nicaragua has made the following submission in Chapter VII of the
Memorial, shown here on graphic IB2:
“The situation relating to the terminus of the land boundary near the mouth of
the River Coco is examined in this chapter. As the particulars will reveal, the situation
involves geographical and legal complexities. In the respectful submission of the
Government of Nicaragua it is appropriate that the Court should be reminded of the
problems attending the terminus of the land boundary, and this, in particular, because - 20 -
it is these problems that explain one of the main reasons for the selection of the
bisector as the appropriate method of delimitation.” (MN, Vol. 1, p. 75.)
46. As I have already indicated, it was the uncertainty relating to the political geography
which was “the main reason” for the Chambe r’s opposition to an equidistance line in the Gulf of
Maine case.
47. The more usual role of the bisector method is as a convenient and practical procedure for
reflecting complicated geographical situations. And in this respect the method is a congenor of
both equidistance and the use of a perpendicular to the general direction of the coast.
48. If may ask you to look at graphic IB17. These methods, and the choice between them,
must reflect the coastal configurations of the Pa rties and any other geographical features which are
pertinent. In this context the bisector method combines two conjoint functions:
First: it depends upon and therefore represents the coastal fronts of the Parties within the
region. The incidence of the line of bisection is the direct result of the location of the two lines
representing the entire coastal front of both States in the areas to be delimited.
Secondly: because the bisector is the produc t of the two lines representing the coastal fronts
of the Parties, it becomes a function of the coastal configurations of the Parties within the areas to
be divided.
The application of the bisector method: practical steps in the process of delimitation
49. My task now is to analyse the practical steps in the process of delimitation. I have
indicated the virtues of the bisector method and now it must be implemented. The first practical
steps involve identifying the disputed area and th e location of the coasts relevant for the purposes
of delimitation.
A. The disputed area and the role of distance
50. There appears to be general agreement be tween the Parties on the geographical scope of
the dispute. The submissions of Nicaragua in her Memorial include the following:
“May it please the Court to adjudge and declare that:
The bisector of the lines representing the coastal fronts of the two parties, as
applied and described in paragraphs 22 a nd 29, Chapter VIII above, and illustrated on
the graphic, constitutes the boundary for the purposes of the delimitation of the - 21 -
disputed areas of the continental shelf and exclusive economic zone in the region of
the Nicaraguan Rise.” (Emphasis added.)
These submissions are confirmed in the Reply.
51. In her pleadings and submissions H onduras does not seek to qualify this position of
Nicaragua, apart of course from advancing her own claim line at the parallel. In her Rejoinder
Honduras does not seek to reduce the scope of the dispute in general apart from a proviso relating
to certain islands, rocks and cays (RH, pp. 1-4, paras. 1.03-1.10).
52. However, the formulation of the claims of the Parties is secondary to the identification of
the geographical and legal framework of the delimitation.
53. The framework involves the identifica tion of the coastal fronts abutting upon the
disputed area. Entitlement to an exclusive economic zone or a continental shelf is anterior to the
issue of delimitation and the existence of coasts abutting upon the disputed area is the best evidence
of entitlement. The decisions of this and ot her courts have recognized the significance of
identifying abutting coasts.
thIn54. Anglo-French continental shelf arbitration, illustrated here at graphicIB18, the
Decision of the Arbitral Tribunal includes th e following useful passages relating to the
geographical and legal framework of the delimitation in the Atlantic region:
“The chief of these distinguishing characte ristics [that is of the Atlantic region]
consists in the fact that the continental shel f of the Atlantic region is not one confined
within the arms of a comparatively na rrow channel but one extending seawards from
the coasts of the two countries into the open spaces of the Atlantic Ocean. In
consequence, the areas of continental shelf to be delimited, in the phrase used by the
United Kingdom, lie off, rather than between, the coasts of the two countries. A
further consequence is that the continental shelf across which the Court has to decide
the course of the boundary extends to seawards of the coasts of the two countries . . .
Other distinguishing characteristics are that the actual coastlines of the two countries
abutting on the continental shelf to be delim ited are comparatively short; and that,
although separated by some 100 miles of sea, their geographical relation to each other
vis-à-vis the continental shelf to be delimit ed is one of lateral rather than opposite
coasts.” (ILR, Vol. 54, p. 117, para. 233; emphasis added.)
55. And later in the Decision it is stated that:
“The Court considers that the method of delimitation which it adopts for the
Atlantic region must be one that has rela tion to the coasts of the Parties actually
abutting on the continental shelf of that region.” (Ibid., p. 123, para. 248.)
56. It is necessary to point to certain implica tions of the detailed reasoning of the Court of
Arbitration. First of all, the court adopted a broa d view of the disputed area, that is to say, the - 22 -
Atlantic region. And, as a corollary of this vi ew, the court did not seek to compartmentalize the
Atlantic region in any way. And finally, the c ourt makes clear (para.233) that even a small
frontage may be significant in terms of the delimita tion of areas of continental shelf which lie off
the coasts of the two States rather than between them.
57. In examining the role of coastal frontages, it is necessary to emphasize the
complementarity between the legal concept of entitlement and the delimitation of areas of
continental shelf and exclusive economic zone. The basis of entitlement is the possession of
coastal frontages abutting upon the areas in dispute.
58. Since the Libya/Malta case, shown here as graphicIB19, it has been accepted that
distance from the coast rather than natural prolongation is the foundation of the process of
delimitation. The equidistance method of delimitation is itself a function of the principle of
distance and this is equally true of the ot her geometrical methods of constituting maritime
boundaries.
59. In this context it is the coast and the principle of distance which fuel the process of
entitlement and, as a logical necessity in the case of opposite or adjacent States, the process of
delimitation. The role of the coast as a point of departure was emphasized by this Court in several
passages in the Judgment in the Tunisia/Libya continental shelf case, shown here as graphic IB20.
The key passages are first:
“The principle that the natural prolongati on of the coastal State is a basis of its
legal title to continental shelf rights do es not in the present case... necessarily
provide criteria applicable to the delimita tion of the areas appertaining to adjacent
States. In so far as Article76, paragraph1, of the draft convention repeats this
principle, it introduces no new element and does not therefore call for further
consideration. In so far however as the paragraph provides that in certain
circumstances the distance from the baseline, measured on the surface of the sea, is the
basis for the title of the coastal State, it departs from the principle that natural
prolongation is the sole basis of the title. The question therefore arises whether the
concept of the continental shelf as contained in the second part of the definition is
relevant to the decision of the present case. It is only the legal basis of the title to
continental shelf rights ⎯ the mere distance from the coast ⎯ which can be taken into
account as possibly having consequen ces for the claims of the Parties . (Continental
Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982 , p.48,
para. 48; emphasis added.)
And secondly, the Court says:
“As has been explained in connection w ith the concept of natural prolongation,
the coast of the territory of the State is th e decisive factor for title to submarine areas - 23 -
adjacent to it. Adjacency of the sea-bed to the territory of the coastal State has been
the paramount criterion for determining the legal status of the submerged areas, as
distinct from their delimitation, without re gard to the various elements which have
become significant for the extension of these areas in the process of the legal evolution
of the rules of international law.”
And the Court continues:
“The coast of each of the Parties, ther efore, constitutes the starting line from
which one has to set out in order to ascertain how far the submarine areas
appertaining to each of them extend in a seaward direction, as well as in relation to
neighbouring States situated either in an adjacent or opposite position. The only
areas which can be relevant for the determination of the claims of Libya and Tunisia
to the continental shelf in front of thei r respective coasts are those which can be
considered as lying either off the Tunisian or off the Libyan coast. These areas form
together the area which is relevant to the decision of the dispute.” ( Ibid., p.61,
paras. 73 and 74; emphasis added.)
60. The complementarity of entitlement and delimitation is spelled out very clearly in certain
passages in the Libya/Malta Judgment [IB19].
Thus in paragraph 61 of the Judgment:
“The Court has little doubt which criteri on and method it must employ at the
outset in order to achieve a provisional position in the present dispute. The criterion is
linked with the law relating to the State’s le gal title to the continental shelf. As the
Court has found above, the law applicable to the present dispute, that is, to claims
relating to continental shelves located less than 200 miles from the coasts of the States
in question, is based not on geographical or geomorphological criteria, but on a
criterion of distance from the coast or, to use the traditional term, on the principle of
adjacency as measured by distance. It ther efore seems logical to the Court that the
choice of the criterion and the method which it is to employ in the first place to arrive
at a provisional result should be made in a manner consistent with the concepts
underlying the attribution of legal title.” ( Continental Shelf (Libyan Arab
Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 46-47, para. 61.)
61. The general approach to the role of distance evident in the Judgment in the Libya/Malta
case has not been the object of criticism in the sub sequent jurisprudence either of this Court or
courts of arbitration. And the jurisprudence s hows evidence of continuity and consistency in the
context of maritime delimitation: and in this r espect reference may be made to the Judgments in
the Qatar v. Bahrain case (I.C.J. Reports 2001 , pp.110-115, paras.224-49), the Cameroon v.
Nigeria case (I.C.J. Reports 2002, pp.431-448, paras.269-307); and I refer also to the Award in
the Barbados and Trinidad and Tobago arbitration of 11 April last year (paras. 219-245).
62. And it is to be emphasized that the principle of distance is applicable equally to the
continental shelf and to the exclusive economic zone . Accordingly, the principle of distance must
apply to cases involving a single maritime boundary. The application of the distance criterion to - 24 -
both the continental shelf and the exclusive econo mic zone was confirmed by this Court in the
Libya/Malta case (I.C.J. Reports 1985, pp. 33-34, para. 34) and in the Qatar v. Bahrain case (I.C.J.
Reports 2001, pp. 110-111, paras. 226-231).
63. The legal implication of the distance cr iterion in the present case is that the title
generated by the coasts of the Parties respectively extends in principle to the limit of the exclusive
economic zone. This is illustrated in graphic IB21 now on the screen.
64. The jurisprudence uses the concept of overla pping claims and this is, of course, more or
less question begging. As I shall demonstrate, the focus of overlapping areas, that is to say, the
axis of the delimitation, depends upon the nature of the coastal relationships in the region as
broadly conceived.
B. The method of delimitation should be appropriate to the disputed area
65. The next step in this progression is the anal ysis of the coastal relationships. However, as
a preliminary, it is necessary to examine the ex tent to which the method of delimitation is
conditioned by the properties, the general characteristics, of the disputed area.
66. In the first place, the continuity of the c ontinental shelf in the disputed area is legally
significant. In the Guinea-Guinea (Bissau) case, the Court of Arbitration observed:
“The continental shelf opposite the two Guineas is one and the same. It must
therefore be delimited as such. The charact eristics of a continental shelf may serve to
demonstrate the existence of a break in the continuity of the shelf or in the
prolongation of territories of the States whic h are parties to a delimitation. However,
if the continental shelf is assumed to be continuous, in the present state of
international law no characteristic could validly be invoked to support an argument
based on the rule of natural prolongati on and designed to justify a delimitation
establishing a natural separation.” (ILR, Vol. 77, p. 687, para. 117.)
67. In the present case the geomorphology of the Nicaraguan Rise which is to be seen here as
graphic IB22, presents a continental shelf which is continuous and does not involve any feature
which could be regarded as a natural separation.
68. Looking back to IB16, another aspect of th e question relating the method to the disputed
areas was dealt with by the Chamber in the Gulf of Maine case as follows:
“The equitable nature of the criteria adopt ed in the light of the circumstances of
the case will emerge the more convincingly ⎯ one might almost say tangibly ⎯ after
the transition from the preliminary phase of choosing equitable criteria to the next - 25 -
phase, in which these criteria are to be re flected in the drawing of a particular
delimitation line with the aid of appropriate practical methods.
As regards these practical methods, it ca n be said at the outset that, given the
equitable criteria which the Chamber feels bound to apply in the case referred to it for
judgment, the choice to be made is predetermined. Methods must be chosen which are
instruments suitable for giving effect to t hose criteria and not other criteria of a
fundamentally different kind. Just as the cr iteria to which they must give effect are
basically founded upon geography, the practical methods in question can likewise only
be methods appropriate for use against a background of geography. Moreover, like
the underlying criteria, the methods employed to give them effect must, in this
particular case, be just as suitable for the delimitation of the sea-bed and its subsoil as
for the delimitation of the superjacent wate rs and their fishery resources. In the
outcome, therefore, only geometrical methods will serve.” ( Delimitation of the
Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984 ,
pp. 328-329, paras. 198-199.).
69. And therefore Nicaragua submits that the bisector method is especially suitable as a basis
for delimitation when the delimitation is multipurpose, and the continental shelf ⎯ and other areas
concerned ⎯ is continuous in form.
C. Analysis of the relationship of the coasts of the Parties
70. In the decisions relating to maritime de limitation, a particular question has created
difficulties. This was the question whether the re lationship of the coasts of the Parties abutting
upon the disputed area was one of oppositeness or ad jacency. This issue was prominent in the
Anglo-French continental shelf case, shown here as graphic IB18. The response of the Court of
Arbitration was to characterize the relationship of the respective coasts in the Atlantic Region as
“one of lateral rather than opposite coasts” (see ILR, Vol. 54, p. 177, para. 233). The key passages
in the Decision in the Anglo-French case are as follows:
“Clearly, there is considerable force in the contention, put forward by both
Parties that, owing to the separation of the coasts by a wide expanse of sea, the
situation in the Atlantic region cannot be cat egorised as, legally, a case of ‘adjacent’
States governed by paragraph2 of Article6. If that view is accepted, it follows that
the situation is to be considered as, legally, a case of ‘opposite’ coasts and therefore
one governed by paragraph1 of that Article. It is, on the other hand, certain that in
the Atlantic region the situation geographically is one of two laterally related coasts,
abutting on the same continen tal shelf which extends from them a great distance
seawards into the Atlantic Ocean. Indeed, the Court notes that so evident is this
lateral relation of the two coasts, geographically, that both Parties in their pleadings
saw some analogy between the situation in the Atlantic region and the situation of
‘adjacent’ States. Accordingly, whether the Atlantic region is considered, legally, to
be a case of ‘opposite’ States governed by paragraph1 or a case of ‘adjacent’ States
governed by paragraph2 of Article6, appreciation of the effects of any special
geographical features on the equidistance line has to take account of those two - 26 -
geographical facts: the lateral relation of the two coasts and the great distance which
the continental shelf extends seawards from those coasts.
What is important is that, in appreciating the appropriateness of the equidistance
method as a method of effecting a ‘just’ or ‘equitable’ delimitation in the Atlantic
region, the Court must have regard both to the lateral relation of the two coasts as they
abut upon the continental shelf of the regi on and to the great distance seawards that
this shelf extends from those coasts.” ( ILR, Vol.54, p.120, paras.241 and 242;
emphasis added.)
71. And thus in my submission the coastal relationships in the Atlantic region are in
important respects analogous to those of H onduras and Nicaragua in the present case. The
relationship of the relevant coasts is lateral a nd the disputed areas extend seawards for a great
distance.
72. The Court of Arbitration in the Anglo-French case, in delimiting in the Atlantic region,
was dealing with the relatively new problem of “long distance” delimitation. The question was
examined further by the Chamber in the Gulf of Maine case, referring back to graphic IB16. As the
Chamber explained in relation to the practical methods of delimitation:
“On the general level all that can be done is to comment on the possible
consequences of the rapid changes that have taken place in what is the very
subject-matter of a maritime delimitation. The methods taken into consideration in a
still relatively recent past ⎯ in this particular field ideas age very quickly ⎯ were few
in number and of very similar inspiration. This limited choice was justifiable when
these methods had to be applied over sma ll distances, e.g., along boundaries between
the territorial seas of adjacent States; but the same choice may seem less justifiable
when boundaries have to be established wh ich cover hundreds of nautical miles and
are intended, not to delimit jurisdiction ove r the waters immediately abutting on the
coast, but in fact to share out the poten tial mineral wealth of continental shelves
extending to the continental margin, or the biological resources of maritime and ocean
areas of hitherto unimagined proportions. Obviously the preference given to a
particular method for drawing a boundary over a very short distance from the coasts
may no longer be justifiable where the delimitation has to extend a great distance from
its starting-point and where different factors have to be taken into account.
It is true that, until the emergence of the present dispute, the problem of ‘long
distance’ delimitation, so to speak, had only co me before an international judicial or
arbitral body in relation to the continental shelf.” ( I.C.J. Reports 1984 , p.314,
paras. 160 and 161.)
73. The geographical circumstances presented in the Gulf of Maine case cannot be described
as generally similar to those obtaining in the presen t case. However, some similarities arise in the
context of the third segment of the boundary outside the waters of the Gulf of Maine. In any event
the passages of the Judgment to which I have refe rred are significant in indicating the special
characteristics of long distance and multipurpose delimitation. - 27 -
D. The need for simplicity in the process of delimitation
74. In the Gulf of Maine case the Chamber emphasized the elements of simplicity and clarity
among the advantages of resort to a geometrical method of delimiting the second segment of the
delimitation line (I.C.J. Reports 1984, p. 333, para. 213).
75. The Chamber also made a significant point concerning the delimitation of zones
containing fisheries and the drawing of a single maritime boundary. In the words of the Chamber:
“Furthermore, a line which, on account of the refinements in the technical
method used to determine its course, follows a complicated or even a zigzag path,
made up of a succession of segments on different bearings, might, if need be, seem
acceptable as a boundary dividing the sea-bed alone, i.e., a boundary to be observed in
the exploration and exploitation of the resources located in given areas of the subsoil.
But there would seem to be far less justification for adopting such a line as a limit
appropriate to maritime fishery zones , i.e., areas whose exploitable resources are not,
for the most part, resources attached to th e soil. Exploitation of the sea’s fishery
resources calls for the existence of clear boun daries of a constant course, that do not
compel those engaging in such activity to keep checking their position in relation to
the complicated path of the line to be respected.
In sum, [the Chamber said,] just like the criteria to be applied to the
delimitation, the methods to be used fo r the purpose of putting those criteria into
practice cannot fail to be influenced by the special characteristics and requirements
pertaining to the delimitation by a single boundary of both the continental shelf and
the superjacent water column which, far from being a genuine column of definite
shape, is in reality a volume of liquid in movement, forming the habitat of mobile
fauna. Undeniably, a degree of simplification is an elementary requisite to the
drawing of any delimitation line in such an environment .” ( I.C.J. Reports 1984 ,
p. 330, paras. 202 and 203; emphasis added.)
E. The use of simplified coastal fronts in the practice of States
76. In this milieu it is not surprising to find that it is a normal procedure in the practice of
States to use simplified versions of coastal front s in the course of delimitation by negotiated
agreements.
77. Examples in the practice of States include the following:
(i)on graphicIB6, the Seabed Boundary Agreement between Sharjah and Umm
Al Qaywayn, in force in 1964 (see Charney and Alexander (eds.), Vol. II, pp. 1549-1555);
(ii) on graphicIB7, the Offshore Boundary Agreement between AbuDhabi and Dubai, in
force 18 February 1968 (see Charney and Alexander, Vol. II, pp. 1475-1480); - 28 -
(iii) on graphicIB23, the Convention between the French Republic and the Spanish State on
the delimitation of the continental shelves of the two States in the Bay of Biscay, in force
5 April 1975 (see Charney and Alexander, Vol. II, pp. 1719-1734);
(iv)graphicIB9 shows the Agreement betw een Brazil and Uruguay Relating to Maritime
Delimitation, in force 12 June1975 ( see Charney and Alexander (eds., VolI .,
pp. 785-792).
78. This State practice reinforces the evidence of the preference of courts for simplicity in
the process of delimitation.
79. The next step in the process of drawing a line is to identify the point of departure.
F. The necessary point of departure is the land boundary
80. The point of departure of the delimitation in the present case is th e location of the land
boundary where it reaches the coast. The land bo undary forms a necessary part of the legal and
geographical framework of the delimitation. In the Gulf of Maine case the starting-point was
point A, this being established in the Special Agreement of 29 March 1979 . Nonetheless, the land
boundary remained a necessary part of the legal framework of the delimitation and obviously its
location governed certain important issues, includi ng the determination of the relevant coasts and
the assessment of the disparity in the lengths of coasts.
81. In effect the location of the land b oundary constitutes the starting-point of the
delimitation, as it were, by operation of law. Examples include the Tunisia/Libya continental shelf
case (I.C.J. Reports 1982, p.18). In the Qatar/Bahrain case there was no land boundary directly
involved but the land boundary between Qatar and Saudi Arabia played an indirect role in the mode
of establishing the inclination of the southernmost sector of the boundary ( I.C.J. Reports 2001 ,
p. 109, paras. 221-222).
82. As the Court will appreciate, the difficu lty of identifying a stable basis for an
equidistance line, which is the main reason for r esorting to the bisector method, does not diminish
the operational significance of the land boundary in the general process of delimitation. The
problems relating to the point of departure will be examined later this week by my friend
Alain Pellet. - 29 -
G. Long distance delimitation and the absence of a point of reference
83. In the present case the line of delimitation seawards to the outer limit of the exclusive
economic zones of the Parties, shown here on graphi c IB21, will not be associated with any point
of reference in the vicinity of its final segme nt. This was the geographical situation in the
Anglo-French arbitration, where the relevant coastal frontages were small but related to large
expanses of sea-bed. In the context of equidist ance, the Court of Arbitration emphasized that the
chief distinguishing characteristic of the Atlantic region
“consists in the fact that the continental shelf of the Atlantic region is not one confined
within the arms of a comparatively na rrow channel but one extending seawards from
the coasts of the two countries into the ope n spaces of the Atlantic Ocean. In
consequence, the areas of continental shelf to be delimited, in the phrase used by the
United Kingdom, lie off, rather than between, the coasts of the two countries. A
further consequence is that the continental shelf across which the Court has to decide
the course of the boundary extends to seawar ds of the coasts of the two countries for
great distances.” (ILR, Vol. 54, p. 117, para. 233.)
84. This emphasis on the fact that the con tinental shelf extended for a “great distance
seawards” is repeated in several other passages of the Decision in the Anglo-French case (see ibid.,
p. 120, paras. 241-242).
85. In the Gulf of Maine case the Chamber described the process of determining the course
of the third segment of the delimitation line. The Chamber gave emphasis to the absence of a point
of reference outside the shores of the Gulf.
86. In the words of the Chamber:
“There now remains to be determined the course of the third segment of the
delimitation line, i.e., the longest portion of its entire course. This is the segment
concerning that part of the delimitation area which lies outside and over against the
Gulf of Maine . . . In fact, the portion of the line now to be determined will inevitably,
throughout its length, be situated in the open ocean. From the geographical point of
view, there is no point of reference, outside the actual shores of the Gulf, that can
serve as a basis for carrying out the final operation required . That being so, it
appears obvious that the only kind of practi cal method which can be considered for
this purpose is, once again, a geometrical me thod. Within the range of such methods,
the most appropriate is that recommended a bove all by its simplicity, namely in this
instance the drawing of a perpendicular to the closing line of the Gulf.”
(I.C.J. Reports 1984, pp. 337-338, para. 224; emphasis added.)
H.Interim conclusions on the geographical framework of the delimitation in the
present case
87. Madam President, at this juncture it is necessary to make a reconnaissance and to consult
the compass. The jurisprudence has insisted upon the legal significance of coasts actually abutting - 30 -
on the areas in dispute. This formulation is not to be ignored but there are certain questions which
are left unanswered. We are dealing here with the problem of “long distance” delimitation. The
significance of the long distance delimitation was pointed out by the Chamber in the Gulf of Maine.
I have already cited the most important passage which will remain here in the transcript:
“The methods taken into considera tion in a still relatively recent past ⎯ in this
particular field ideas age very quickly ⎯ were few in number and of very similar
inspiration. This limited choice was justif iable when these methods had to be applied
over small distances, e.g., along boundaries be tween the territorial seas of adjacent
States; but the same choice may seem less justifiable when boundaries have to be
established which cover hundreds of nautical miles and are inte nded, not to delimit
jurisdiction over the waters immediately abu tting on the coast, but in fact to share out
the potential mineral wealth of continen tal shelves extending to the continental
margin, or the biological resources of maritime and ocean areas of hitherto
unimagined proportions.” (I.C.J. Reports 1984, p. 314, para. 160.)
88. So in the present case we are dealing with a long distance delimitation and a situation in
which there is no point of reference to assist in the determination of a line which extends seawards
of the coasts of the two countries for great distances. In such geographical situations the judicial
approach has been to seek for re levant coasts: and the jurisprudence includes two examples of the
genre.
89. Looking back to graphic IB18, the first example is taken from the Anglo-French case,
with reference to the delimitation in the Atlantic region. As the court pointed out, the actual
coastlines of the two countries abutting upon the areas to be delimited were “comparatively short”
(see the Decision, ILR, Vol. 54, p. 117, para. 233). In that case the French Government contended
that the delimitation in the Atlantic region shou ld be by means of a bisector line based upon the
general directions of the coasts of the two countries within the English Channel. The response of
the court to the French contention was negative. In the words of the court:
“The ‘equitable’ method of delimitati on which is advocated by the French
Republic, and which invokes a median line de limited by reference to prolongation of
the general directions of the Channel coast s of the two countries, does not appear to
the Court to be one that is compatible with the legal regime of the continental shelf. It
detaches the delimitation almost completely from the coasts which actually abut on the
continental shelf of the Atlantic region, and is thus not easily reconciled with the
fundamental principle that the continental shelf constitutes the natural prolongation of
a State’s territory under the sea. In so far as that method may have relation to the
respective land masses of the Parties, it is not apparent why the general directions of
their Channel coasts alone should be consider ed to represent either the totality or any
particular part of their land masses... It is not, therefore, obvious how or why the - 31 -
coasts within the Channel should, on the contrary, acquire an absolute relevance in
determining the course of the boundary itself in the Atlantic region.
The Court, for the above reasons, finds itself unable to accept the prolongations
of the general direction of the Channel co asts of the two countries as a relevant basis
for determining the course of the boundary in the Atlantic region.” ( ILR, Vol.54,
pp. 122-23, paras. 246 and 247; emphasis added.)
90. In the result the Court of Arbitration rej ected the idea of relying upon proxy or substitute
relevant coasts. The court confirmed that the Ch annel coasts of the two Parties did not provide “a
relevant basis” for determining the boundary in the Atlantic region.
91. The Chamber of the Court encountered similar problems in the Gulf of Maine case,
shown here again on graphic IB16, in relation to the third segment of the line proposed by the
Chamber. The Chamber resolved the problem in two stages. The first stage involved the drawing
of a perpendicular to the closing line of the Gulf.
92. The Chamber uses a geometrical method but, at the same time, points out that the course
of the third segment depended upon the course of the previous two segments of the line ⎯ that is,
within the Gulf. As the Chamber explains:
“There now remains to be determined the course of the third segment of the
delimitation line, i.e., the longest portion of its entire course. This is the segment
concerning that part of the delimitation area which lies outside and over against the
Gulf of Maine. Nevertheless, it appears beyond question that, in principle, the
determination of the path of this segment must depend upon that of the two previous
segments of the line, those segments within the Gulf which have just been described
and whose path so obviously depended on the orientation of those coasts of the Parties
that abut upon the waters of the Gulf . In fact, the portion of the line now to be
determined will inevitably, throughout its length, be situated in the open ocean. From
the geographical point of view, there is no point of reference, outside the actual shores
of the Gulf, that can serve as a basis for carrying out the final operation required. That
being so, it appears obvious that the only kind of practical method which can be
considered for this purpose is, once again, a geometrical method.” ( I.C.J. Reports
1984, p. 337, para. 224; emphasis added.)
93. The Chamber having chosen the method of drawing a perpendicular to the closing line of
the Gulf, the second stage of the operation involved fixing the location of the perpendicular on the
closing line of the Gulf ⎯ the location of the perpendicular. The Chamber explained this exercise
in the following terms:
“Such being the Chamber’s choice, the essential question remains to be
resolved, namely that of determining the precise point on the closing line of the Gulf
from which the perpendicular to that line s hould be drawn seawards. However, if it is
considered necessary to remain guided by geography, all the considerations already set
forth in regard to the determination of th e final segment of the line militate in favour - 32 -
of having this new choice coincide with the very point where the corrected median
line encounters the closing line of the Gulf. Indeed the Chamber has borne constantly
in mind the problem of determining the final segment of the delimitation line when
applying itself so meticulously to the task of establishing the previous segments. It
would be unthinkable that, in that part of the delimitation area which lies outside and
over against the Gulf, the dividing line should not follow or continue the line drawn
within the Gulf by reference to the particul ar characteristics of its coasts. If one were
to seek for a typical illustration of what is meant by the adage ‘the land dominates the
sea’, it is here that it would found.” (Ibid., p. 338, para. 226.)
94. Madam President, in the Gulf of Maine case, the Chamber thus relied upon coasts which
abutted upon the waters within the Gulf, and not the coasts “outside the actual shores of the Gulf”.
And it is clear that the third segment is thus based vicariously, so to speak, upon coasts which were
not directly relevant to the delimitation of the third segment of the line drawn by the Chamber.
95. And so, at this stage, Nicaragua would respectfully suggest that, while each case is
different, the Anglo-French and the Gulf of Maine cases provide useful analogies to the present
exercise in delimitation. The present case involves a long distance delimitation of a line which
extends seawards of the coasts of the two countri es for great distances. Away from the coasts and
the starting-point of the line, there is no point of reference to assist in the delimitation process. It is
in these conditions that the methodology of a bisector finds its justification.
Madam President, it is not quite the coffee brea k, but it would be helpful if I could break
there and start a new passage.
The PRESIDENT: Yes, by all means, Mr. Brownlie. The Court will now shortly rise.
The Court adjourned from 11.25 to 11.45 a.m.
The PRESIDENT: Please be seated. Yes, Mr. Brownlie.
Mr. BROWNLIE: Thank you, Madam President.
96. The foregoing examination of the cases highlights certain data:
⎯ first, the problem of finding abutting and rele vant coasts in cases involving long distance
delimitation;
⎯ second, that the land boundary in the present type of case is the necessary point of departure; - 33 -
⎯ third, the abutting coasts, in cases such as the present must, so to speak, do all the work of
delimitation, in the absence of any point of reference to influence the more seawards aspects of
the line;
⎯ fourth, it is common practice to use simplified versions of coastal fronts; and
⎯ fifth, in the absence of a stable basis for the use of base points at the mouth of the river Coco,
the equidistance method is not viable.
97. The boundary proposed by Nicaragua in the areas beyond the territorial sea is illustrated
here with graphic IB24 and can be described as follows: the bisector is calculated from the general
direction of the coast for Honduras (bearing 098 º10'48") and the general direction of the
Nicaraguan coast (bearing 007º19'54"). These directions generate a bisector of bearing
052º45'21". This bearing is projected from the centre of the main channel at the mouth of the
River Coco at 15º 00' 11" N, 83º 07' 54" W out to a position on Rosalind Bank. The line between
these two points is defined as a geodesic of Azimuth 52º 26' 25".
98. This originating point constitutes the in tersection of the two lines A and B indicated on
figure A in Volume III of the Memorial. Line A reflects the coastal direction of Honduras abutting
on the areas to be divided. LineB reflects the co astal direction of Nicaragua in the areas to be
divided. The proposed line is constituted by the bisector, as a line of continual bearing, of the
angle formed by the intersection of linesA and B which is projected from the river mouth as a
geodesic.
99. The bisector is used as a provisional line because, as demonstrated with graphicIB15,
the geometry of the coastlines of Nicaragua and Honduras does not allow the calculation of a
median or equidistant line that is robust. Th e elbow formation of the coast indicates that on a
mathematical basis, it is only base points select ed on either bank of the river mouth that can
contribute to the calculation of a median line. Th e line is calculated as that line that is always
equidistant from the nearest base point on either side and no other mainland base point will ever
come closer to the line than those at the river entrance.
100. To allow the entire coast of both Nicaragua and Honduras to play a part in the
construction of a provisional line, it is necessary to use a bisector. If I may divert your attention to
graphic IB25 on the screen at this point, I will demons trate how the bisector is constructed. In the - 34 -
construction of a bisector, vectors representing the Honduran coast can be averaged to generate a
single line representing the general direction of the coast, and a similar exercise produces an
average direction for the Nicaraguan coast.
101. These average vectors are only intended to indicate the general direction of the coast,
not any special notion of coastal projection or relevant coast in terms of a proportional calculation.
The average coastal direction gives equal effect to every point on the coastline of both States.
102. At the point of intersection of these genera l coastal directions, a bisector is constructed
halving the angle between the lines as shown here on graphic IB26.
103. And the construction is then transposed to make the bisector pass through the mouth of
the river Coco ⎯ on graphic IB27. The bisector ought to be translated to the thalweg point at the
river mouth, but in the absence of a current accurate survey of the thalweg line, a point at the centre
of the entrance to the river is chosen.
104. No adjustment for the relative lengths of the coast of each State is made in construction
of the bisector to ensure that the resultant directi on is a direct function of the average direction of
the entire coast of each State.
105. In Nicaragua’s Memorial this direc tion has been used to describe the line of
delimitation shown here on graphicIB2, between the States with a start-point about 3miles
offshore, an intermediate point at the intersection with the 12-mile limit and a direction stated as a
geodetic azimuth that will drive the line outwards until it intersects with other boundaries with
other States in the approximate vicinity of Rosalind Bank. At the time the Memorial was written,
the bisector start-point and intermediate point were calculated on the best available information for
the river mouth. Clearly in the intervening five years, the river mouth has moved and these figures
are no longer accurate. However, in relation to th e total coasts of Nicaragua and Honduras, these
local changes at the river mouth make little differe nce to the calculation of the direction of the
bisector and this remains the best direction for a delimitation line based on the mainland coasts of
each State.
106. The approach of the decision-maker is to take the benefit of the geometrical mode of
delimitation which is to be preferred. To make the system work, it is necessary to assess the - 35 -
general direction of the coasts either side of the terminus of the land boundary. For this purpose, it
is convenient to construct coastal front vectors.
107. With the assistance of the two vectors, an appropriate bisector line can be constructed as
shown in graphicIB4. The vectors reflect the normal practice of conver ting complicated coastal
geography into an artificial straight line which reflects the general direction of the coast.
108. The need for simplicity has been recogni zed in the jurisprudence. As the Chamber
observed in its Judgment in the Gulf of Maine case:
“It is the bisector of this second angle which the Chamber considers that it
should adopt for the course of the first segment of the delimitation line. The Chamber
believes that this practical method combin es the advantages of simplicity and clarity
with that of producing, in the instant case, a result which is probably as close as
possible to an equal division of the first area to be delimited. It also believes that, in
relation to the sector under consideration, the application of this equitable criterion is
not open to any serious objections.” (I.C.J. Reports 1984, p. 333, para. 213.)
J. The bisector line produces an equitable result
109. Madam President, the various legal elemen ts must now be positioned as a synthesis.
Each element, for example, the use of simplified coastal fronts, or the use of the bisector method,
has a function which is necessary for the process of delimitation but not sufficient for the final
stage, the stage which confirms the sufficiency of the synthesis of elements, which is to check
whether the delimitation is equitable in result. The provisions of the Law of the Sea Convention
relating to the delimitation of the exclusive econom ic zone and the continental shelf provide that
the purpose of delimitation is “to achieve an equitable solution”.
110. Nicaragua submits that the boundary she prop oses is equitable. In the first place the
direction of the line is a direct function of the aver age direction of the entire coast of each State.
Moreover, in the absence of any points of referen ce seawards, the use of the coastal fronts of the
Parties is the appropriate, and indeed the only appropriate, basis of delimitation.
111. And in this general context, it can be pointed out that the present case involves a long
distance delimitation in which, in contrast to othe r examples, the identification of relevant coasts is
straightforward. This situation is thus to be distinguished from the Anglo-French and Gulf of
Maine cases in which the judicial quest for relevant coasts was beset by substantial problems. - 36 -
112. The bisector method also satisfies the principle of equal division. In several passages
the Chamber in the Gulf of Maine case affirmed the criterion of equal division. Thus, in
paragraph195 the application of the criterion is adopted as a general policy. Referring to the
geography of coasts, the Chamber observed:
“Within this framework, it is inevitabl e that the Chamber’s basic choice should
favour a criterion long held to be as equitable as it is simple, namely that in principle,
while having regard to the special circum stances of the case, one should aim at an
equal division of areas where the maritime projections of the coasts of the States
between which delimitation is to be effected converge and overlap.” ( I.C.J. Reports
1984, p. 327, para. 195.)
113. Again, in paragraph 197 the Chamber came to the conclusion:
“At this point, accordingly, the Chamber finds that it must finally confirm its
choice, which is to take as its starting- point the above-mentioned criterion of the
division ⎯ in principle, equal division ⎯ of the areas of convergence and overlapping
of the maritime projections of the coas tlines of the States concerned in the
delimitation, a criterion which need only be stated to be seen as intrinsically
equitable.” (Ibid., p. 328.)
114. The principle of equal division has its origin in the North Sea Continental Shelf cases,
where the Court observed:
“‘The continental shelf area off, and dividing, opposite States [consists of]
prolongations [which] meet and overlap, and can therefore only be delimited by means
of a median line; and, ignoring the presence of islets, rocks and minor coastal
projections, the disproportionally distorting effect of which can be eliminated by other
means, such a line must effect an equal division of the particular area involved.’”
(I.C.J. Reports 1969, p. 36, para. 57.)
And this passage is set forth by the Court in the Libya/Malta case, (I.C.J. Reports 1985 , p.47,
para. 62).
115. A further equitable aspect of the bi sector line is the quality which it possesses of
avoiding a disproportionate outcome, illustrated here as graphic IB28. Nicaragua considers that the
appropriate test should take the form of the question: is there an evident disproportion in the areas
attributed to each of the Parties respectively? As this Court observed in the Libya/Malta case:
“The Court does not consider that an endeavour to achieve a predetermined
arithmetical ratio in the relationship between the relevant coasts and the continental
shelf areas generated by them would be in harmony with the principles governing the
delimitation operation. The relationship betw een the lengths of the relevant coasts of
the Parties has of course already been taken into account in the determination of the
delimitation line; if the Court turns its atte ntion to the extent of the areas of shelf
lying on each side of the line, it is possible for it to make a broad assessment of the
equitableness of the result, without seeking to define the equities in arithmetical terms. - 37 -
The conclusion to which the Court comes in th is respect is that there is certainly no
evident disproportion in the areas of shelf attributed to each of the Parties respectively
such that it could be said that the requirements of the test of proportionality as an
aspect of equity were not satisfied.” (I.C.J. Reports 1985, p. 55, para. 75.)
116. In the circumstances Nicaragua submits that there is “no evident disproportion” in the
maritime areas attributed to each of the Parties respectively as a consequence of the use of the
bisector method. In any case, Honduras has not asserted that the line proposed by Nicaragua is
inconsistent with the test of proportionality, either in the Counter-Memorial or the Rejoinder.
The bisector method: the response of Honduras
117. In her Counter -Memorial and again in the Rejoinder Honduras produces no single
reason, either of principle or of practicality, wh ich would rule out resort to the bisector method
(CMH, pp. 6-7, para. 1.20, and pp. 62-63, para. 4.14; RH, pp. 122-124, paras. 7.11-7.17).
118. Moreover, in her Rejoinder Honduras does accept that resort to a geometrical method of
delimitation is supported by judicial authority and State practice. Thus, “Honduras does not deny
that in certain situations judicial authority and State practice have adopted a geometrical method of
delimitation such as angle bisectors and perpendiculars to the general direction of the coast.” (RH,
p. 123, para. 7.14.)
119. When Honduras, with some reluctance, does get to grips with the bisector method in the
context of this case, her response is to contest th e application of the bisector method on the facts.
The relevant passage in the Rejoinder is as follows:
“Chapter6 above addresses the fact that the land boundary between Honduras
and Nicaragua meets the Central American coast where that coast faces east. As
discussed in Chapter 6, Nicaragua’s Puerto Cabezas, which is at approximately 14° N
latitude, and Honduras’s CapeFalso, at approximately 15°15'N latitude, are on
virtually the same longitude. This is so in spite of the eastern bulge in the Nicaraguan
coast at Punta Gordo, and the shared east ern protrusion in the eastward facing Central
American coast at CaboGraciasaDios. Both of these coastal sinuosities at
Punta Gordo and Cabo Gracias a Dios, reach eastward to about the same distance in
longitude. Thus, between PuertoCabezas in Nicaragua and CapeFalso in Honduras
the coast of Central America runs essentially from south to north in spite of the coastal
sinuosities. Since these two places, which are some 75minutes apart in latitude (or
75nautical miles), are on the same longitude , the general direction of the coast of
Central America which runs between them, and in the mi dst of which lies the land
boundary terminus, can hardly be said to have changed.” (RH, p. 122, para. 7.11.)
120. The thesis of Honduras in this respect is illustrated by plate42 of Chapter6, which is
now on the screen here as graphic IB29. - 38 -
121. Nicaragua considers that the analysis o ffered is unacceptable for several reasons. As a
background, I invite the Court to look once again at figureA and linesA and B, shown here on
graphic IB2.
122. First of all, the sector from CapeFalso in Honduras to PuertoCabezas in Nicaragua,
now on the screen as graphicIB30, is presented as the critical sector for determination of the
general direction of the coast. Secondly, the focu s is upon “the coast of Central America” and not
upon the coasts of the Parties. Thirdly, the conclusi on is to the effect that “the coast of Central
America between these points faces east”. Fourth ly, the further conclusion is that the parallel
(claimed by Honduras as a maritime boundary) “runs due east from this eastward facing coast”.
This is shown on their plate 42, reproduced here as graphic IB31; however, the coastal direction is
poorly drawn, if points that are actually on the co ast are picked, the graphic at IB32 shows that it
does not even face east. It is also interesting to note that this small section of coast is described
(RH, paras. 6-17) as “roughly linear” ⎯ the coasts approaching the river mouth meet more or less
at right angles.
123. With respect to our colleagues on the other side of the Court, this course of reasoning is
unconvincing and legally unacceptable. It can at onc e be seen that the thinking of Honduras bears
no relation, either to the actual configuration of the coasts of the areas in dispute, or to the
appropriate legal significance of the coasts of the Parties. In the first place, the selection of the
Cape Falso-Puerto Cabezas sectors as the dominant element in the coastal geography is arbitrary in
the extreme. If the Court would look again at th e screen at graphicIB30, it can be seen that the
Cape Falso-Puerto Cabezas sector constitutes an artificial fragment of the coastal geography.
124. And there are other substantial difficulti es. There is no reason or principle to support
the assertion that only a sector of east-facing coast constitutes the relevant coastal front for
purposes of delimitation. There is, in any event, no true east-facing coast. And again, there is no
reason or principle to justify the selection of a sector which, it is alleged, runs from north to south.
125. In fact, the need to invent an eastward facing coast is linked to the “traditional line”
claimed by Honduras “that runs due east from the ea stward facing coast” (RH, p. 122, para. 7.12).
This is very extravagant. The traditional lin e is based upon a parallel which does not reflect any - 39 -
coastal feature and which merely starts from a point on the coast. The parallel is not a formation
related to the coastal configuration in the area but is an extraneous feature.
126. In any event in this context Honduras simply ignores the appropriate elements of
maritime delimitation, namely:
First: The determination of the relevant area: shown here in graphic IB33.
Second: On the basis of this determination the identification of the coastal fronts abutting
upon the disputed area: shown here on graphic IB34.
Third: The formation of lines representing the relevant coastal fronts of the two States.
127. The Cape Falso to Puerto Cabezas sector is simply not based upon these legal elements.
It clearly ignores significant segments of abutting coasts both to the north and the south of this
sector.
128. Having reviewed the Honduran approach to these matters, it is time to move on to the
position of Nicaragua concerning some other issues.
The equitable character of the bisector method is confirmed by the independent criteria of an
equitable result
129. It is now my purpose to review the elements which dictate that the character of the
bisector method is such as to achieve an equitabl e result in the present case; and there are four
such elements.
130. (a) The first, which has been st ressed already this morning, is the fact that the method
produces an effective reflection of the coastal relationships.
131. (b) The second element is the fact that th e bisector produces a result which constitutes
an expression of the principle of equal division. As the decision in the Gulf of Maine case
demonstrates, the equal division of the areas in dispute can be achieved not only by using the
method of equidistance, but by other methods, including the use of the bisector of the angle formed
by the lines perpendicular to the two basic coastal lines to be considered. In the present case, the
bisector method is used in a much simpler version.
132. (c) In the geographical circumstances of th e present case, the bisector method has the
virtue of compliance with the principle of non-encroachment, a principle which has been
consistently upheld in the jurisprudence. It is to be recalled that in the Gulf of Maine case the - 40 -
Chamber affirmed that the principle applied in relation to the delimitation of a single maritime
boundary and not exclusively to the delimitation of continental shelf areas.
133. In the present case the parallel line of de limitation claimed by Honduras, shown here as
graphicIB35, is unrelated to any geographical cons iderations and by its very nature involves an
encroachment on the normal entitlement to be derived from Nicaragua’s coastal front. In sharp
contrast to this claim the bisector reflects the actual geography of the region and does not involve a
truncation of the coastal projections of the Parties.
134. (d) The line-up of equitable principles includes the principle of preventing, as far as
possible, any cut-off of the seaward projection of the coast of either of the States concerned. This
principle is obviously the alter ego of non-encroachment. As a separate legal entity the concept of
avoiding any cut-off of the seaward projections of the Parties has been affirmed in the Award of the
Tribunal in the Guinea-Guinea (Bissau) maritime delimitation case in 1985 ( ILR, Vol. 77, p. 681,
para. 103) and again in the Award of the Tribunal in the Newfoundland and Labrador/Nova Scotia
arbitration concerning offshore areas (Second Phase, 2002, Award, pp. 33-34, para. 5.15).
135. In any event, the formulation of the Court in the Libya/Malta case is generally accepted:
“The normative character of equitable principles applied as a part of general
international law is important because these principles govern not only delimitation by
adjudication or arbitration, but also, and indeed primarily, the duty of Parties to seek
first a delimitation by agreement, which is also to seek an equitable result. That
equitable principles are expressed in terms of general application, is immediately
apparent from a glance at well-known examples: the principle that there is to be no
question of refashioning geography, or compensating for the inequalities of nature;
the related principle of non-encroachment by one party on the natural prolongation of
the other, which is no more than the nega tive expression of the positive rule that the
coastal State enjoys sovereign rights over the continental shelf off its coasts to the full
extent authorized by international law in the relevant circumstances...” ( I.C.J.
Reports 1985, p. 39, para. 46.)
136. In her Rejoinder Honduras asserts that the bisector “cuts off” the projection of the
eastward facing coastal front of Honduras to the sout h of Cape Falso (RH, p. 124). The complaint
is accompanied by plate45, shown here as graphicIB36, which fails to depict the vectors or
construction lines employed by Nicaragua in applying the bisector method to the disputed area as a
whole. And conveniently uses a chart that mak es the entire northward projection of Nicaragua
disappear, a wider view, shown here, in graphicIB28, this puts the supposed cut-off into
perspective. - 41 -
137. This argument based upon an alleged cut-o ff is based on the fallacious assumption that
the coastal front of a State only generates rights to areas which are directly opposite the coast in
question. This ignores the general character of long distance delimitation when the disputed areas
lie off the coast in question and do not lie between opposite coasts.
The methodology of Honduras
138. The next stage in the process of est ablishing that the delimitation proposed by
Nicaragua has an equitable result is the examinati on of relevant circumstances to be taken into
account. It is generally recognized in the jurispru dence that the delimitation is to be effected in
accordance with equitable principles and taking acc ount of all relevant circumstances: see, for
example, the Judgment in the Libya/Malta case (I.C.J. Reports 1985) ⎯ in the Judgment itself
(pp. 38-39, para. 45) and in the dispositif (pp. 56-57, para. 79).
139. However, before embarking upon this t ask, it is necessary to point out the eccentricities
of the Honduran methodology in general. The fact is that Honduras has assumed a very ambiguous
position in relation to the applicable law and the co nnected question of geographical configuration.
The methodology of Honduras has been examined at some length in the Reply and it will suffice to
point to the main forms of eccentricity.
140. In the first place Honduras in her pleadings sets aside the coastal geography and the
principal coastal relationships (see RN, paras. 2.3-2.7).
141. Secondly, the legal argument presente d by Honduras is based exclusively upon the
alleged conduct of the Parties in relation to the 15th parallel (see RN, paras.2.8-2.12). This
argument bears no relation whatsoever to the geographical context. The complete divorce between
the claim based upon the parallel of latitude and ma ritime delimitation is affirmed by a series of
passages in the Counter-Memorial. Paragraph 7.25 is typical in this respect.
“Based on this evidence, and on the review of the long-established common
practice in Chapter 6, a maritime frontier running eastwards along approximately the
15th parallel was well-established by 1979. No rule of law required that the Parties
should embody their agreement in formal, written Treaty form, however desirable that
may be. It would be quite wrong to allow the new Government of one Party to
reassess the ‘equities’ of the situation and demand a revision of the agreement, as of
right, or to argue, as Nicaragua now does, that no agreement exists and an equitable
delimitation must be established de novo”. (Emphasis added.) - 42 -
142. Thirdly, the concept of relevant circ umstances adopted by Honduras is permeated by
legal error. This latter issue is a question to which I shall return in due course.
The relevant circumstances supporting the equita ble result reached in accordance with the
bisector principle
143. The jurisprudence of this Court has affirm ed the applicability of relevant circumstances
in determining whether the method of delimitation in question achieves an equitable result. In this
context reference can be ma de to the Judgments in Libya/Malta (I.C.J. Reports 1985 , p.39,
para. 46), Jan Mayen ( I.C.J. Reports 1993 , p.64, para.59), and Cameroon v. Nigeria ( I.C.J.
Reports 2002, pp. 441-442, paras. 288-290).
144. However, the membership of the category of relevant circumstances is a legal question
and has been carefully circumscribed in the jurisprudence. A relevant circumstance can only affect
the provisional alignment if it has a clear factual basis and if certain conditions are fulfilled.
145. The first condition arises from the fact that there is a legal connection between the title
of the coastal State, based upon its coastal front age, and the concept of relevant circumstances.
Thus, to qualify as a relevant circumstance a fact or should be related to the institution of the
continental shelf. The position was stated by the Court in the Judgment in the Libya/Malta case:
“The application of equitable principles thus still leaves the Court with the task
of appreciation of the weight to be accord ed to the relevant circumstances in a
particular case of delimitation. There is a much-quoted dictum of the Court in its 1969
Judgment to this effect:
‘In fact, there is no legal limit to the considerations which States
may take account of for the purpose of making sure that they apply
equitable procedures, and more often than not it is the balancing-up of all
such considerations that will produce this result rather than reliance on
one to the exclusion of all others. The problem of the relative weight to
be accorded to different consider ations naturally varies with the
circumstances of the case.’ (I.C.J. Reports 1969, p. 50, para. 93.)”
And the Judgment in the Libya/Malta case goes on to say:
“Yet although there may be no legal lim it to the considerations which States
may take account of, this can hardly be true for a court applying equitable procedures.
For a court, although there is assuredly no cl osed list of considerations, it is evident
that only those that are pertinent to the in stitution of the continental shelf as it has
developed within the law, and to the app lication of equitable principles to its
delimitation, will qualify for inclusion. Ot herwise, the legal concept of continental
shelf could itself be fundamentally change d by the introduction of considerations
strange to its nature.” (I.C.J. Reports 1985, p. 40, para. 48.) - 43 -
146. Thus, the landmass of a State cannot qualify as it does not provide a basis of entitlement
either to continental shelf rights or to areas of exclusive economic zone.
147. A related condition is the requirement that the relevant circumstance be related to the
objective envisaged by States when claims are made to sea-bed areas. Thus, in the same Judgment
the Court observed in response to an argument on behalf of Malta:
“The Court does not however consider th at a delimitation should be influenced
by the relative economic position of the two States in question, in such a way that the
area of continental shelf regarded as appert aining to the less rich of the two States
would be somewhat increased in order to compensate for its inferiority in economic
resources. Such considerations are totally unrelated to the underlying intention of the
applicable rules of international law . . . While the concept of the exclusive economic
zone has, from the outset, included certain special provisions for the benefit of
developing States, those provisions have not re lated to the extent of such areas nor to
their delimitation between neighbouring States, but merely to the exploitation of their
resources. The natural resources of the c ontinental shelf under delimitation ‘so far as
known or readily ascertainable’ might well constitute relevant circumstances which it
would be reasonable to take into account in a delimitation, as the Court stated in the
North Sea Continental Shelf cases ( I.C.J. Reports 1969 , p.54, para.101 (D)(2)).
Those resources are the essential objective envisaged by States when they put forward
claims to sea-bed areas containing them. In the present case, however, the Court has
not been furnished by the Parties with any indications on this point .” (I.C.J. Reports
1985, p. 41, para. 50; emphasis added.)
The relevant circumstances invoked on behalf of Nicaragua
148. I now move to the relevant circumstan ces invoked by Nicaragua in the present case.
They are as follows:
(a) First: the incidence of natural resources in the disputed area
149. Since the North Sea Continental Shelf cases it has been recognized that the incidence of
natural resources in the disputed area may cons titute a relevant circumstance affecting a
delimitation. In the dispositif in the North Sea Continental Shelf cases the Court specified “the
factors to be taken into account” to include the natural resources of the continental shelf areas
involved “so far as known or readily ascertainable” (I.C.J. Reports 1969, pp. 53-54, para. 101).
In its Judgment in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the Court
observed that:
“As to the presence of oil-wells in an area to be delimited, it may, depending on
the facts, be an element to be taken into account in the process of weighing all relevant
factors to achieve an equitable result.” (I.C.J. Reports 1982, pp. 77-78, para. 107.) - 44 -
150. Further judicial statements are set fort h in the Memorial (pp.123-127). To these
materials more recent authority must be added. Thus, in the Cameroon v. Nigeria case the Court
addressed the question raised by Nigeria whether the oil practice of the Parties provided helpful
indications for purposes of delimitation. The Court found that:
“Overall, it follows from the jurisprude nce that, although the existence of an
express or tacit agreement between the par ties on the siting of their respective oil
concessions may indicate a consensus on the maritime areas to which they are entitled,
oil concessions and oil wells are not in themselves to be considered as relevant
circumstances justifying the adjustment or shifting of the provisional delimitation line.
Only if they are based on express or tacit agreement between the parties may they be
taken into account. In the present case th ere is no agreement between the Parties
regarding oil concessions.
The Court is therefore of the opinion that the oil practice of the Parties is not a
factor to be taken into account in the maritime delimitation in the present case.” (Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J Reports 2002 , pp. 47-448,
para. 304.)
151. It will be appreciated by the Court that in the Cameroon v. Nigeria case the Court was
not addressing the general question of the incidence of natural resources but the significance of oil
concessions and oil wells in themselves. The evidence relating to the oil concessions will be
reviewed in due course by Professor Remiro Brotóns.
152. This form of relevant circumstance is not the subject of any comment by Honduras in
the Counter-Memorial.
The second type of relevant circumstance derives from:
(b) The principle of equitable access to the natural resources of the disputed area
153. The principle of equitable access to natural resources is obviously a relative of the
factor involving the incidence of natural resources. In any case the first formulation of the
principle of equitable access as such ap pears in the Court’s Judgment in the Jan Mayen case, and
the relevant passages are set forth in the Memori al at pages128-130. This appearance of the
principle was in the significant context of a case in which, as the Court noted, the Parties were
essentially in conflict over access to fishery resources. - 45 -
154. The question of access to resources was give n careful consideration in the arbitration
between Newfoundland and Labrador, and Nova Scotia, and in particular in the Award of the
Tribunal in the Second Phase. After a summary of the arguments, the Tribunal concluded:
“It is now well settled that a court e ngaged in maritime delimitation may not
take account of the relative wealth or natural resources of the States concerned or their
peoples; these are wholly extraneous matters . Nor, in the end, did either Party
suggest otherwise. As to access to the speci fic resources of the zone in question, the
Tribunal does not think that this factor is irrelevant. Indeed, in accordance with earlier
jurisprudence it seems that access to resour ces in the zone to be delimited may be
relevant in two different ways. One concerns the hypothesis that a particular
delimitation may entail ‘catastrophic repe rcussions for the livelihood and economic
well-being of the population of the countries concerned’; but this can clearly be
excluded in the present case. More relevant is the possibility, al ready recognised in
the North Sea Continental Shelf cases, of having regard in any delimitation to the
natural resources of the area in question ‘so far as known or readily ascertainable’.
This was decisive in Jan Mayen in produci ng an eventual adjusted equidistance line.
True, to have regard to the location of pote ntial resources stands in some tension with
the often-repeated statement that a court engaged in maritime delimitation is not
sharing out an undivided whole. For the reasons explained already, this Tribunal is in
no different position in delimiting the undivi ded continental shelf of Canada as
between the two Parties for the purposes of the Accord Acts . Thus it is not the
Tribunal’s function to share out equitably any offshore resource, actual or
hypothetical, irrespective of its location. On the other hand, the effect of any proposed
line on the allocation of resources is, in the Tribunal’s view, a matter it can properly
take into account among other factors.” (Para. 3.21.)
And the Tribunal continues:
“As will be seen from figure 4, [reproduced here as graphic IB37] each Party’s
claim line allocated to it the greater part of the Laurentian sub-basin. (The St.Pierre
and Miquelon corridor also cuts across this sub-basin, although no mention is made of
the fact in the Award of the Court of Arbitration, which rather emphasized fisheries
resources.) [That’s a cross-reference to St. Pierre and Miquelon.] In a situation where
officials of both sides have referred to an area of potential resources as being at stake,
the Tribunal does not believe that the North Sea formula (‘known or readily
ascertainable’) should be restrictively applied. Accordingly, the impact of any
delimitation on access to that resource is a potentially relevant factor in the present
case.” (Para. 3.22; footnotes omitted.)
155. This determination provides an affirma tion of the principle of equitable access in
respect of the exploration and exploitation of hydrocarbons (see the Award, paras. 3.19-3.20).
156. In her Counter -Memorial, Honduras makes no response to the treatment of equitable
access in the Memorial. And this silence is maintained in the Rejoinder.
157. My final submission on this subject is that the line based upon the bisector method
produces a result which satisfies the criterion of equitable access to the resources located in the area
of the Nicaraguan Rise, shown here in graphic IB22. - 46 -
158. I move now to the third relevant circum stance invoked by Nicaragua in her Memorial,
namely:
(c) The Nicaraguan Rise as a single geological and geomorphological feature shared by
Nicaragua is another relevant circumstance
159. This feature is characterized by an absen ce of any natural dividing lines. There is no
need to repeat the analysis offered in the Memo rial at pages 131 to 133. The significance in legal
terms of the unitary character of the sea-bed has been recognized in the jurisprudence.
160. Thus, in the award in the St. Pierre et Miquelon case the Court of Arbitration observed
“that the continental shelf in this area isa continuum characterized by the unity and
uniformity of the whole sea-bed, ‘from the Arctic to Florida’, as admitted by Canada
and recognized by the Chamber of the International Court of Justice in the Gulf of
Maine case. In that case the Chamber conclude d that ‘the continental shelf of the
whole area is no more than an undifferentia ted part of the continental shelf of the
eastern seaboard of North America’ (para.45). Since it is all one shelf it cannot be
considered as exclusively Canadian. Each coastal segment has its share of shelf.”
(ILR, Vol. 95, p. 665, para. 46.)
161. In conclusion, the role of the Nicaraguan Rise can be described as follows:
“The Nicaraguan Rise, as reflected in its geomorphological alignment, can be
considered to constitute . . . a boundary zone. As such, its alignment does not mandate
a boundary, but it does concern the equitable nature of the course of the boundary
arrived at on the basis of other considerati ons. This boundary proposed by Nicaragua
respects the unitary character of the Ni caraguan Rise, by dividing the Rise in
approximately equal halves between Nicaragua and Honduras. In view of the general
equality of the coastal fronts of Nicaragua and Honduras facing the submerged parts
of the Nicaraguan Rise, such an equal division is inherently equitable.” (MN, p. 133,
para. 21.)
162. In response to the Nicaraguan position relating to the Nicaraguan Rise, Honduras in the
Counter-Memorial (paras. 4.33-4.33) relies exclusively on the judicial response in the Libya/Malta
case, in which the Libyan arguments were of a totally different character. In that case Libya argued
that the “Rift Zone”, so-called, south of Malta constituted a geological and, therefore, a legal
boundary. Libya was proposing a division of the sea-bed ⎯ a division of the sea-bed ⎯ on a
geological basis. In the present case Nicaragua is proposing that the geolog y is relevant in the
absence of natural dividing lines. - 47 -
(d) Security considerations as a relevant circumstance
163. I shall now move on to examine the stat us of security considerations as a relevant
circumstance. The jurisprudence of internationa l tribunals has accepted the legal relevance of
considerations of security in the determination of the equitable character of a delimitation.
164. The authorities in chronological order are as follows. In the Award in the
Guinea-Guinea (Bissau) maritime delimitation case, the court states:
“To the economic circumstances, the Pa rties linked a circumstance concerned
with security. This is not without interest, but it must be emphasized that neither the
exclusive economic zone nor the continental shelf are zones of sovereignty. However,
the implications that this circumstance might have were avoided by the fact that, in its
proposed solution, the Tribunal has taken care to ensure that each State controls the
maritime territories situated opposite its co asts in their vicinity. The Tribunal has
constantly been guided by its concern to find an equitable solution. Its prime
objective has been to avoid that either Pa rty, for one reason or another, should see
rights exercised opposite its coast or in th e immediate vicinity thereof, which could
prevent the exercise of its own right to development or compromise its security.” (ILR,
Vol. 77, p. 689, para. 124.)
165. In the Judgment in the Libya/Malta case this Court clearly recognized that security
considerations fell within the legal category of relevant circumstances (see I.C.J. Reports 1985 ,
p. 42, para. 51).
166. The status of security considerations as applicable to all maritime delimitations, and as
not restricted to continental shelf areas, was confirmed by the Court in the Jan Mayen case. In the
words of the Court:
“The Court considers that the observation in the Libya/Malta Judgment (I.C.J.
Reports 1985, p. 42, para. 51), that ‘security considerations are of course not unrelated
to the concept of the continental shelf’, c onstituted a particular application, to the
continental shelf, with which the Court w as then dealing, of a general observation
concerning all maritime spaces.” (I.C.J. Reports 1993, pp.74-75, para. 81.)
167. As Nicaragua has pointed out in the Me morial, the alignment proposed by Honduras is
conspicuously incompatible with the principle of security. In the Counter -Memorial, Honduras
agrees that the Court has accepted the relevance of an argument based on security (CMH, p.134,
para. 7.5). However, Honduras contends that ther e is no threat to Nicaraguan security because the
parallel “remains well away from the Nicaraguan co ast”. With respect, this shows an attitude
which verges upon the disingenuous.
168. It is generally recognized that the de velopment of the continental shelf, as a legal
concept based upon the equality of States, has refl ected the general inclination of States to avoid - 48 -
claims-hopping by extra-regional interests and th e unstable concept of exploitability. What
emerged was the inherent right of the coastal St ate as such. Thus from early on the trend was
against relying upon the modes of acquisition of territory as a basis for establishing rights in respect
of submarine areas. The problems were analysed by Hersch Lauterpacht in an article published in
the British Year Book in 1950 (Vol. 27, pp. 376-433).
169. The position has been analysed in term s of the interpretation of the principle of
non-encroachment. In his separate opinion in the Tunisia/Libya case Judge Jiménez de Aréchaga
rejected the view that the principle of non-encr oachment was linked with a geological meaning.
Thus non-encroachment was the expression of the continuation seaward of the coastal front of a
State.
170. Jiménez de Aréchaga saw that the essen ce of the matter was the development of an
appropriate public order régime. In his words:
“This interpretation is confirmed by the very raison d’être of the institution of
the continental shelf as it appeared and developed in the middle of the present century.
The reason which explains the wide and immediate acceptance of the doctrine was not
so much the possibility it offered of exploitin g the natural resources of the shelf, but
rather the fact that it author ized every coastal State to obj ect to the exploitation of the
sea-bed and subsoil in front of its coasts be ing undertaken by another State. At that
time, only a handful of industrialized St ates possessed the technology required for
such exploitation. Yet, all coastal St ates accepted the doctrine without hesitation
mainly because of its negative consequences, namely, that it prevented a rush and grab
for sea-bed resources being undertaken by a few States on the basis of the Grotian
dogma of ‘freedom of the seas’. It is for this reason that the 1958 Convention does not
subordinate the acquisition ab initio of sovereign rights to actual exploitation or
occupation, or even to a proclamation of these rights.” ( Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982 , pp.119-120,
para. 70.)
171. In the circumstances of the present disput e, the claim based upon a parallel of latitude
raises mutatis mutandis precisely the ghosts which were laid to rest in the Third United Nations
Conference on the Law of the Sea. As the hist ory makes clear, the question of security involved
non-encroachment and opposition to the exploitation of natural resources in front of the coasts of
another State.
(e) Access to the main navigable channel in the adjacent coastal areas
172. I shall now examine the role of the Main Cape Channel crossing the Miskito Bank. The
channel is shown here on the United States char t 28140 using graphic IB38. There is judicial - 49 -
authority for the view that access to navigable channels in adjacent coastal areas constitutes a
relevant circumstance in the context of maritime delimitation. In chronological order the first
judicial authority is the Report and Decision of the Court of Arbitration in the Beagle Channel
arbitration. The relevant passage is as follows:
“In drawing its own line on the attached Boundary-Line Chart, as described in
paragraphs 104 and 105 above, the Court has been guided by the considerations
indicated in Annex IV hereto (which shows how the line has been traced), ⎯ in
particular by mixed factors of appurtenance, coastal configuration, equidistance, and
also of convenience, navigability, and the d esirability of enabling each Party so far as
possible to navigate in its own waters. N one of this has resulted in much deviation
from the strict median line except, for obvi ous reasons, near Cape Gable Island where
the habitually used navigable track has been followed.” ( ILR, Vol. 52, p. 185,
para. 110.)
173. In the Decision in the Anglo-French case, the Court of Arbitration recognized that
navigational interests in the region “may supp ort and strengthen” any conclusions “already
indicated by the geographical, political and legal circumstances of the region” ( ILR, Vol. 54, p. 98,
para. 188).
174. It is, of course, the case that theBeagle Channel tribunal was delimiting the territorial
sea in the narrow part of the Channel, whilst the Anglo-French arbitration involved continental
shelf delimitation. In the present case, there is no basis for thinking that the factor of navigability
would be treated as irrelevant in relation to a single maritime boundary. In his significant treatise
ProsperWeil quotes the passage from the Beagle Channel case I have just quoted and then gives
his reaction. He writes:
“Would the reasoning have been different if it had been a question of delimiting
the continental shelves or the exclusive ec onomic zones? No less significant is the
absence in Guinea/Guinea-Bissau of all s uggestion of any distinction between the
rules to be applied to that part of the de limitation line relating to the territorial sea and
that relating to both the continental shelf and the exclusive economic zone.” (Weil,
The Law of Maritime Delimitation ⎯ Reflections, 1989, p. 141; also: Perspectives du
droit de la délimitation maritime, 1988, p. 153.)
175. The Main Cape Channel, forming pa rt of the Miskito Bank, shown here on
UK Hydrographic Office chart 1218, and shown as gr aphic IB39 on the screen, is described in the
British official source, the East Coasts of Central America and Gulf of Mexico Pilot, as follows: - 50 -
“Main Cape Channel
3.135
General Information. Main Cape Channel [and bearings are given] (15°10'N
82°55'W) is one of the main channels crossing the Miskito Bank, leading from the
vicinity of Cabo Gracias a Dios [bearings ar e given] (15°00'N 83°09'W) to deep
water NNE. General depths in the fairway, which is at least 5 miles wide, are 18 to
over 30 m.”
And that is the recent fourth edition of the Pilot (p. 88).
176. The significance of the Main Cape Channe l is considerably enhanced by the relation it
bears to the only port in the region, which is Cabo Gracias a Dios port at the mouth of the Rio Coco
and located in Nicaragua; the Agent yesterday gave details of the situation concerning ports in the
area.
177. The examination of the relevant circumst ances invoked on behalf of Nicaragua is now
concluded, and I shall move on to examine the counterpart arguments presented by Honduras.
Relevant circumstances invoked by Honduras
(a) The concept of relevant circumstances adopted by Honduras is erroneous
178. First, it is clear that the concept of relevant circumstances adopted by Honduras is
erroneous. The Honduran approach is incompatible with the applicable law and with the associated
jurisprudence. As Nicaragua has pointed out in her Reply, there is a pervasive confusion between
State practice as evidence of title to islands and re levant circumstances as factors to be taken into
account in determining a maritime boundary. Th is confusion appears in Chapter6 of the
Counter-Memorial, in which the alleged evidence of effectivités is applied both to islands and the
waters “in the disputed area north of the 15th pa rallel” (p.81, para.6.1). This confusion is
maintained and, indeed, increased , in Chapter7, in the section on “The Relevant Circumstances
Ignored by Nicaragua” (pp. 137-140). As the contents of the section and the rubric make clear, the
material is presented in the context of maritime delimitation.
179. In Chapters6 and 7 the Government of Honduras invokes certain types of material in
the context of maritime delimitation.
(a) First, the regulation of immigration (paras. 6.51-6.59);
(b) second, military and naval patrols (paras. 6.60-6.62); - 51 -
(c) third, search and rescue operations (para. 6.62);
(d) fourth, navigational aids (paras. 6.64-6.66);
(e) and, lastly, scientific surveys (para. 6.67).
These five types of activity are inadmissible as form s of relevant circumstances to be taken into
account for the purposes of determining a single maritime boundary. They simply do not satisfy
the conditions I have already indicated for inclusion within the category of relevant circumstances.
180. The Honduran position flies in the face of the jurisprudence of international tribunals.
In fact, the Honduran argument repli cates that of the United States in the Gulf of Maine case. In
that case, the Chamber refers to the United Stat es arguments in paragraph 233 of the Judgment as
follows:
“In the eyes of the United States, the main consideration here is the historical
presence of man in the disputed areas. It be lieves the decisive factor here to be the
activities pursued by the United States and its nationals since the country’s
independence and even before, activities whic h they claim to have been alone in
pursuing over the greater part of that l ong period. This reas oning is simple and
somewhat akin to the invocation of historic rights, though that expression has not been
used. This continuous human presence took the form especially of fishing, and of the
conservation and management of fisheri es, but it also included other maritime
activities concerning navigational assistance, rescue, research, defence, etc. All these
activities, said greatly to exceed in duration and scale the more recent and limited
activities of Canada and its nationals, mu st, according to the United States, be
regarded as a major relevant circumstance for the purpose of reaching an equitable
solution to the delimitation problem.” (I.C.J. Reports 1984, pp. 340-341, para. 233).
In response the Court observed:
“It is, therefore, in the Chamber’s vi ew, evident that the respective scale of
activities connected with fishing ⎯ or navigation, defence or, for that matter,
petroleum exploration and exploitation ⎯ cannot be taken into account as a relevant
circumstance or, if the term is preferred, as an equitable criterion to be applied in
determining the delimitation line.” (Ibid., p. 342, para. 237.)
181. In general the argument of Honduras confuses the legal significance of effectivités as
evidence of title to land territory with the question of maritime de limitation and relevant
circumstances. And in any ev ent the evidence adduced by Honduras in support of the alleged
effectivités is unconvincing (RN, Chap. V, pp. 71-89).
(b) The relevant circumstances said to be ignored by Nicaragua
182. A section of the Counter -Memorial is devoted to a topic described as “the relevant
circumstances ignored by Nicaragua” (pp.137-143). The preponderant part of this section - 52 -
concerns the argument of Honduras based upon conduc t of the Parties (pp. 137-140). In this case
the alleged conduct relied upon is not a recognizable part of the subject of relevant circumstances.
No doubt consent or acquiescence can be used to deflect the normal effects of equitable criteria, but
in this case they do not constitute a relevant circumst ance. The alleged consent, express or tacit, is
not derived from equitable considerations.
183. The point was made clearly by the Chamber of the Court in the Gulf of Maine, when it
observed “that it is impossible to conclude from th e conduct of the Parties that there is a binding
legal obligation, in their bilateral relations, to make use of a particular method for delimiting their
respective maritime jurisdictions” (I.C.J. Reports 1984, p. 312, para. 154). The same point appears
also in paragraph 148 of the Judgment of the Chamber.
“On the basis of all the foregoing considerations the Chamber finds, therefore,
that in the present case the conditions have not been met for an acquiescence on the
part of the United States which would, even in the absence of other bases, have the
effect, in the bilateral relations between the United States and Canada, of making the
application of the median line to the determination of their respective maritime
jurisdictions mandatory. The same is true as regards the possibility of an estoppel,
without prejudice to the problems that the application of this concept in international
law may raise generally.” (I.C.J. Reports 1984, p. 310, para. 148.)
184. It is clear from the Counter -Memorial and the Rejoinder that the primary legal position
of Honduras is based upon the so-called traditional b oundary. It is true that Honduras claims that
the parallel line produces an equitable result (RH, para. 2.45), but the primary element is an alleged
agreed boundary.
185. Indeed, in several passages in her pl eadings, Honduras treats agreement as a special
legal form superior to the equitable principl es themselves. Thus, in the Counter-Memorial
Honduras declares that:
“Based on this evidence, and on the review of a long-established, common
practice in Chapter6, a maritime frontie r running eastwards along approximately the
15thparallel was well-established by 1979.. . It would be quite wrong to allow the
new Government of one Party to re-assess the ‘equities’ of the situation and demand a
revision of the agreement, as of right, or to argue, as Nicaragua now does, that no
agreement exists and an equitabl e delimitation must be established de novo .”
(Para. 7.25)
186. In the first place in this assertion Honduras is accepting that the claim line on the
parallel is not equitable. In this passage the “e quities” are given a very subordinate and contingent
status and the message to the Court is simply that the general principles of maritime delimitation - 53 -
are not applicable. This basic legal approach is confirmed in several passages in the Rejoinder.
Examples include the following. First, in paragraph 2.45:
“In other words, reliance by Honduras on the sole traditional line, itself derived
from its territorial title (uti possidetis) and the long history of an established, accepted
boundary is strengthened and consolidated by the fact that it produces an equitable
result.” (RH, p. 26, para. 2.45.)
This formulation confirms that the “traditional line” is not, as a matter of legal essence, a maritime
delimitation at all.
187. And the second example can be seen in paragraph 2.47:
“Honduras agrees with Nicaragua when it says that ‘the role of relevant
circumstances is essentially to confirm the equ itable character of a line’. Yet, it is the
position of Honduras that the principle of respect for an existing agreed boundary is
the most relevant of all circumstances. Even more so when, in a spirit of
reasonableness and equity, Honduras asks only for the respect of this line, without
seeking to argue for a position of maximu m advantage based on the islands over
which Honduras nevertheless exercises sovereignty.” (RH, p. 27, para. 2.47.)
188. Finally, Honduras asserts that Nicaragua has ignored, as relevant circumstances, the
presence of islands and treaties involving adjacent States in the region (CMH, pp. 140-143). These
questions will not be dealt with here. My coll eague Dr.Oude Elferink has already examined the
treaties, and he will discuss the presence of islands in his second speech this week.
189. I shall turn now to the line proposed by Honduras in her Rejoinder as a provisional
equidistance line (RH, pp. 130-131).
Madam President, it would be helpful to me if I could break there. It was always expected,
by us anyway, that we would flow over tomorrow by possibly 20 minutes.
The PRESIDENT: That is a matter of your choice. The Court would have been prepared to
sit a few minutes more. But if that would be your preference, and I understand it to be so, then the
Court will now rise. We will regard this morning’s session as having come to a conclusion and the
Court will reconvene again at 10 o’clock in the mo rning to hear the continuation of Nicaragua’s
case. - 54 -
Mr. BROWNLIE: Thank you very much.
The PRESIDENT: The Court now rises.
The Court rose at 1 p.m.
___________
Audience publique tenue le mardi 6 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)