Traduction

NH

CR 2007/4 (traduction)

CR 2007/4 (translation)

Jeudi 8 mars 2007 à 10 heures

Thursday 8 March 2007 at 10 a.m. - 2 -

10 Le PRESIDENT : Veuillez vous asseoir. Monsieur Oude Elferink, vous avez la parole.

M.ELFERINK: Je vous remercie, Madame le président. Madame le président, Messieurs

de la Cour, je vais aujourd’hui conclure ma présen tation au sujet des cayes situées dans la zone de

chevauchement des revendications maritimes.

Le dernier thème que j’ai traité hier est celui de la pratique des Parties en matière pétrolière

et gazière.

j) L’index géographique du Nicaragua

69. Un document publié à l’époque où les concessions pétrolières et gazières furent

accordées confirme que la pratique en questio n ne signifiait nullement que le Nicaragua

reconnaissait la souveraineté hondurienne sur les cay es situées dans la zone de chevauchement des

revendications maritimes. Il s’agit de la publication intitulée Indice Geográfico de Nicaragua

(index géographique du Nicaragua), qui date de 1971. Ce volume fut établi par Jaime Incer, qui

était alors à la tête du département de la géographie à l’Institut géographique national du

Nicaragua, sous la direction de Cristobal Rugama, le directeur de cet institut. Le volume fut publié

par le ministère des travaux publics du Nicaragua et par l’Institut géographique national.

70. La page 124 de l’ Indice Geográfico de Nicaragua contient une référence à Media Luna,

qui est décrite comme un «[g]roupe de cayes et de récifs situé à environ 70kilomètres du

capGracias a Dios sur le plateau sous-marin. Il inclut les îlots suivants: Logwood, Bobel,

Savanna, Sud, Half Rock, récif d’Alargado et Cock Rock. Il se situe à 15°10'de latitude nord

et82°35'de longitude ouest.» (RN, annexe 31, p.153.) Dans la réplique, le Nicaragua a noté

qu’il s’agissait là de l’un des très rares cas où un éément antérieur à la date critique aux fins du

présent différend désignait expressément et sans équivoque les cayes en litige comme faisant partie

du territoire de l’une des Parties (RN, p.133, par.6.106). De ce fait, ce document est

particulièrement important pour répondre à la question de la souveraineté sur les cayes (ibid.). Il

est intéressant de relever que, dans sa duplique, le Honduras n’a rien eu à dire à propos de cette

publication. - 3 -

k) Le différend relatif à la pêche à la tortue entre le Nicaragua et le Royaume-Uni

71. Les Parties ont accordé une attention c onsidérable à ce qu’il convient d’appeler le

différend relatif à la pêche à la tortue. Il s’agit là d’un différend qui vit le jour pendant la seconde

11 partie du XIX esiècle entre le Nicaragua et le Royaume-Uni au sujet de l’accès des pêcheurs des

îles Caïmanes à la zone de pêche à la tortue qui se trouvait au large de la côte nicaraguayenne.

Dans le contre-mémoire, le Honduras a invoqué cette affaire pour soutenir que le Nicaragua n’avait

alors revendiqué aucune des cayes qui divisent aujourd’hui les Parties (CMH, chap. 3. III).

72. Dans sa réplique, le Nicaragua dit que les faits invoqués dans le contre-mémoire, ⎯ qui

concernent essentiellement les négociations ayant abou ti à la signature d’un traité bilatéral entre le

Nicaragua et le Royaume-Uni en 1916 ⎯, ne justifient pas les conclusions qui y sont dégagées par

le Honduras (RN, p. 62-64, par. 4.46-4.52). Le Nicaragua précise que ces faits montrent que dans

la période qui a précédé le traité de1916, sa revendication des îles situées au large de sa côte

continentale s’étendait au nord des cayes qui font l’ objet de l’actuel différend (RN, p.62 et63,

par.4.48). Rien n’étaye l’affirmation du Hondur as selon laquelle le tr aité de1916 «ne visait

pas ⎯et ne toucha pas dans la pratique ⎯ la pêche à la tortue au nord du 15 eparallèle» (CMH,

p.35, par.3.12). Le Nicaragua joint à sa rép lique des documents relatifs à d’autres négociations

qu’il a engagées avec le Royaume-Uni à la fin des années cinquante au sujet de la pêche à la tortue.

S’il est vrai que ces négociations n’ont pas abouti au renouvellement du traité de1916, elles sont

une preuve supplémentaire du titre du Nicaragua sur les cayes actuellement en litige. Plus

précisément, ces négociations apportent la réfuta tion de l’argument du Honduras selon lequel le

traité de1916, ⎯qui, comme le Honduras le reconnaît lui-même, (DH, p.74 et75, par.4.57) a

constitué le fondement de la pêche à la to rtue des insulaires caïmanais jusqu’en1960 ⎯ couvrait

uniquement la pêche à la tortue dans les cayes et eaux environnantes situées au sud du parallèle

de 14° 59' 48'' de latitude nord. Les documents de l’administration britannique qui sont joints en

annexe 39 de la réplique et qui couvrent la période 1958-1959 ⎯ années où le traité de 1916 était

encore en vigueur ⎯ montrent que les cayes qui font l’objet de l’actuel litige étaient réputées

appartenir au Nicaragua. - 4 -

73. L’un des documents joints en annexe39 est une lettre adressée le 15avril1959 par

P.J.Kitcatt du Colonial Office à Londres à J.M.Stow, secrétaire général de l’administration en

Jamaïque. Cette lettre fait mention d’une au tre lettre, qui lui est jointe, émanant du

commandantKennedy de l’Amirauté et montrant un tracé schématique du type de système de

lignes de base que le Nicaragua pourrait adopter en vertu de la convention de1958 sur la mer

territoriale. Le schéma dessiné par le commandant Kennedy ⎯ qui est représenté sur la figure 15,

qui apparaît à présent à l’écran derrière moi ⎯ montre que le Nicaragua pourrait inclure dans un

système de lignes de bases droites toutes les cayes aujourd’hui en litige. Comme l’indique la note

12 explicative jointe à la figure, les points no irs représentent des cayes, etc., découvertes en

permanence. Les lignes droites indiquent des dist ances approximatives en milles entre les cayes et

entre les cayes et la côte continentale.

74. La souveraineté du Nicaragua sur les cay es situées au sud du Main Cape Channel est

confirmée par un autre document figurant à l’annexe 39 de la réplique. Il s’agit d’un extrait d’une

lettre adressée le 27novembre1958 par le co mmandant Kennedy du service hydrographique à

E.CBurr du Colonial Office. Cet extrait mentionne LogwoodCay, BurnCay, BobelCay,

SavannaCay et South Cay, toutes situées entr e le Main Cape Channel et le parallèle

de 14° 59' 48'' de latitude nord.

75. Dans sa duplique, le Honduras ne mentionne pas la carte des cayes qui a été dressée par

le commandant Kennedy. Il commente néanmoins d’ autres documents contenus dans l’annexe 39

de la réplique. Tout d’abord, le Honduras invoque le fait que l’extrait de la lettre du commandant

Kennedy datée du 27novembre1958 indique, au sujet des cayes situées sur les récifs de la

Demi-Lune ⎯ à savoir Logwood Cay et Burn Cay ⎯ qu’elles pourraient être revendiquées comme

faisant partie du plateau continental du Honduras, en fonction de l’accord final sur la manière dont

la frontière traverse le plateau (DH, p. 76, par. 4.62).

76. Le Honduras ajoute que cette précision indique clairement «qu’en 1958, le Royaume-Uni

n’avait connaissance d’aucune revendication du Nicaragua sur les îles situées au nord du

15 eparallèle» (DH, p. 76, par. 4.62). Madame le président, la remarque du commandant Kennedy

au sujet des récifs de la Demi-Lune a-t-elle réellement le sens que lui attribue le Honduras ? Pas du

tout. Premièrement, cette remarque dément l’affirmation du Honduras selon laquelle la ligne située - 5 -

par 14° 59' 48'' de latitude nord a été utilisée depuis l’époque coloniale comme ligne d’attribution

de la souveraineté sur les îles. Deuxièmem ent, le commandant Kennedy laisse entendre

qu’en 1959, les cayes situées sur les récifs de la Demi-Lune appartenaient au Nicaragua, et non au

Honduras. La remarque du commandant Kennedy m ontre en réalité qu’il considérait que la

délimitation du plateau continental pourrait abou tir à l’attribution soit au Nicaragua, soit au

Honduras des cayes de petite dimension situées sur les récifs de la Demi-Lune. Autrement dit, il

était considéré que la souveraineté sur ces cayes ne serait pas un facteur déterminant de la

délimitation du plateau continental.

77. On peut relever que le point de vue exprimé par le commandant Kennedy s’accorde

parfaitement avec la position, adoptée par le Nicaragua dans la présente procédure, selon laquelle la

délimitation du plateau continental et de la zone économique exclusive entre ce pays et le Honduras

13 doit être effectuée sur la base de la relation entre leurs côtes continentales et ne devrait pas accorder

de poids décisif aux cayes situées autour de la zone à délimiter.

78. Dans sa duplique, le Honduras fait égalemen t valoir que l’obligation faite aux pêcheurs

caïmanais souhaitant exercer leurs activités dans les eaux du Nicaragua de se rendre tout d’abord

au cap GraciasaDios pour effectuer leur en trée officielle dans les eaux territoriales

nicaraguayennes «implique manifestement qu’aucune zone située … au nord du cap Gracias a Dios

n’était considérée comme eaux territoriales nicaragu ayennes» (DH, p.76, par.4.63). Cela n’est

guère logique. L’obligation qu’avaient les pêch eurs caïmanais de se rendre tout d’abord au cap

GraciasaDios et d’y effectuer des formalités de sorties au moment de rentrer chez eux est

mentionnée dans l’un des documents joints en a nnexe39 de la réplique. Il s’agit d’une note

du18décembre1958 sur la pêche à la tortue dans les eaux nicaraguayennes. Cette note ne

concerne nullement la définition de la limite septentrionale des eaux du Nicaragua. En revanche,

elle fait état d’une obligation de notifier officiellement les autorités nicaraguayennes des entrées et

sorties effectuées dans les eaux de ce pays. Le cap GraciasaDios était le point le plus

septentrional de la côte atlantique du Nicaragua. Les obligations de signaler les entrées et sorties

auraient aidé les autorités de ce pays à contrôler les activités liées à la pêche à la tortue dans la

région. - 6 -

l) Conclusions

79. Madame le président, au total, à quoi se ré sument les éléments de preuve soumis à la

Cour au sujet des cayes ? Le Honduras souligne à plusieurs reprises que le Nicaragua n’a présenté

rien qui prouve son titre sur les cayes en litige. Le Nicaragua n’est pas d’accord avec cette

affirmation. Les éléments de preuve antérieurs à la date critique ⎯ par exemple le différend relatif

à la pêche à la tortue et l’ouvrage de 1971, Índice Geográfico de Nicaragua, publié par le ministère

nicaraguayen des travaux publics et par l’ Institut géographique national du Nicaragua ⎯ prouvent

que le Nicaragua détenait un titre sur les cayes s ituées au sud du MainCapeChannel bien avant

que le Honduras n’ait formulé ses revendications. Ainsi que l’a dit M.Remiro hier dans son

exposé, le fait que les cayes en litige contiguës au territoire non contesté du Nicaragua constitue, en

l’absence de toutes preuves relatives à l’ uti possidetis juris, l’indication de l’existence du titre sur

les cayes en1821, date à laquelle la Nicaragua et le Honduras sont devenus indépendants de

l’Espagne.

80. Certes, il n’y a pas beaucoup d’éléments de preuve. Le Nicaragua en convient. Comme

le Honduras lui-même l’a admis, point n’est beso in d’une abondance d’élém ents de preuve dans

une affaire comme celle-ci (DH, p.21, par.2.29- 2.30). Etant donné cette admission, ce qui est

14 l’aspect le plus remarquable de l’espèce, c’est sans doute l’immense quantité de documents que le

Honduras a présenté à la Cour pour prouver son titre su r les cayes. Il ne fait pas de doute qu’un tel

comportement amènera la Cour à être sur ses gardes. Et, de fait, tout ce que ces documents

prouvent, c’est que le Honduras cherche à fonder sa cause sur une pratique récente, face à

l’opposition continue du Nicaragua à cette nouvelle revendication créée de toutes pièces. Pareille

revendication devrait être rejetée et ne saurait l’ emporter sur le titre du Nicaragua qui est antérieur

à la date critique.

L’objet du différend soumis à la Cour

81. Avec ces conclusions à l’esprit, je voudrais m’intéresser à présent à la prétention du

Honduras selon laquelle le Nicaragua a cherché à élar gir le différend soumis à la Cour, en priant

celle-ci de déterminer quel Etat a souveraineté sur les cayes situées au nord du

parallèle 14° 59' 48" de latitude nord (DH, p. 1, par. 1.03). Le Honduras prétend par ailleurs qu’il

n’a pas cherché à élargir le différend soumis à la Cour (DH, p. 2, par. 1.04). - 7 -

82. La Nicaragua nie catégoriquement que c’est lui qui a cherché à élargir le différend

soumis à la Cour. Le Nicaragua considère que toutes les cayes situées au sud du

Main Cape Channel font partie du territoire du Nicaragua. En1977, le Nicaragua a proposé au

Honduras d’ouvrir des négociations au sujet de leur frontière maritime. Jusqu’alors, il n’avait

aucune raison de penser que le Honduras contest ait la souveraineté du Nicaragua sur les cayes.

C’est seulement après1977 que le Honduras a commencé à formuler une revendication sur les

cayes situées au sud du Main Cape Channel. Au départ, cette revendication était exprimée de

manière plutôt ambiguë. Le Honduras mettait l’accent sur les droits qu’il avait sur les eaux situées

au nord du 15 eparallèle de latitude nord, et non sur les cayes se trouvant dans lesdites eaux. Le

Honduras a formulé pour la première fois sa thèse selon laquelle il existait une frontière
e
traditionnelle le long du 15 parallèle de latitude nord dans une note en date du 23mars1982

adressée par le ministre des a ffaires étrangères du Honduras au ministre des affaires étrangères du

Nicaragua (MN, vol.II, annexe8). La note ne faisait aucune mention de l’existence d’un titre

hondurien sur les cayes qui sont à présent en litige. Au lieu de cela, il y était affirmé que le

Nicaragua avait violé la souveraineté du Honduras dans les eaux relevant de la juridiction du

Honduras.

83. Pratiquement tous les éléments de preuve se rapportant au prétendu titre du Honduras sur

les cayes et qui concernent directement les cay es elles-mêmes datent de la deuxième moitié des

annéesquatre-vingt-dix, soit quelque vingt années après que le Nicaragua a proposé des

pourparlers au Honduras sur la délimitation mariti me. Le Nicaragua n’a jamais accepté la

revendication tardive du Honduras concernant les cayes situées au sud du Main Cape Channel.

15 84. Il n’appartient pas au Nicaragua de dire au Honduras comment défendre sa cause. Le

Honduras a choisi l’option d’insister sur sa revendication concernant les cayes et a choisi de plaider

sa cause en avançant un mélange inextricable d’argu ments se rapportant aux cayes et à la frontière

maritime, très souvent sans préciser si tel argument concerne les cayes ou la frontière maritime, ou

les deux. Or, tout comme le Nicaragua ne sau rait décider pour le Honduras comment il faut

procéder, le Honduras ne peut décider pour le Ni caragua et l’amener à accorder crédit à la

revendication tardive du Honduras concernant les cayes, en faisant de cette revendication l’objet de

la requête soumise à la Cour. Le Honduras a d écidé de défendre ladite revendication devant la - 8 -

Cour. Le Nicaragua lui a répondu. Le Honduras ne saurait à présent prétendre que le Cour est

empêchée de rendre une décision sur la délimita tion maritime entre le Nicaragua et le Honduras

parce que le Honduras aurait élargi le différend soumis à la Cour.

85. Madame le président, ceci met fin à mon exposé. Je vous remercie vous et les autres

membres de la Cour pour votre aimable attention. Je vous demanderais respectueusement de bien

vouloir appeler à la barre mon collègue M. Remiro Brotóns.

Le PRESIDENT: Merci beaucoup, Monsieur Elferink. Monsieur RemiroBrotóns, vous

avez la parole.

BRrO. TÓNS:

The alleged existence of a traditional line

A. Presentation

1. Madam President, Members of the Court, Honduras uses varied, fluctuating terminology

in its endeavour to escape a delimitation of its maritime areas with Nicaragua which would be

equitable, taking account of all relevant circumstances.

1
2. In Honduras’s view, “there is an existing boundary at the 15thparallel” . This is a

“traditional line” 2, a “traditional boundary” , a “traditional boundary line” , which has long been

the result of the consistent practice of the Parties, a practice not disputed ⎯ Honduras tells

5 6
16 us ⎯ until recent years ; a line, lastly, “based in . . . practice” . Honduras refers to this boundary

as a “de facto line” 7, a “de facto boundary” , and again a “ de facto boundary” , based on the tacit

RH, paras. 1.07-1.08, 1.23, 2.47.
2
RH, paras. 2.4, 2.5, 2.7, 2.33, 2.45, 2.46, 5.15, 6.02, 6.04, 7.01, 8.01, 8.16, 8.19, 8.20, 9.01, 9.04, 9.05, 9.06.
3
RH, paras. 2.3, 5.02, 9.01.
4
RH, paras. 1.04, 1.22.
RH, paras. 2.4, 9.04, 9.05, 9.06.

RH, para. 8.15.

RH, paras. 2.7, 2.9.
8
RH, paras. 4.04, 4.08, 5.39.
9
RH, para. 9.02. - 9 -

agreement of the Parties deduced from their practice 10, a boundary, lastly, “tacitly agreed” 11. The

repeated references to the tacit agreement 12 are scarcely fewer than the references to the traditional

13
line with which it forms a pair. But H onduras also refers to a long-standing modus vivendi , to

14
Nicaragua’s acquiescence in the “t raditional line of delimitation” ; to Nicaragua’s having long

tacitly but actively recognized a boundary at the 15thparallel 15, to a “mutual understanding” 16, to

the “importance of the conduct of the Parties”, etc., as evidence of the validity of the traditional line

17
of delimitation” .

3. Honduras urges the Court to endorse an agreement of which there is no written trace as

regards ⎯ Honduras says ⎯ the sudden statement by Nicaragua claiming to abolish an ancient

existing boundary, substituting another for it thanks to a decision of the Court ex aequo et bono 18.

4. The Court, Honduras adds, should not become em broiled in this sort of machination, for

which responsibility falls to the Sandinista government, which in 1979 led Nicaragua to unilaterally

19
17 deny the traditional line and to “abruptly change[]” its practice . The Court “should affirm the

established traditional line and deny Nicaragua a be nefit for changing its position to gain further

advantage” 20.

5. The respect which is due to agreements, ev en when not in writing, would appear to be

supported, in our case, because, according to the revelation that Honduras now wishes to share with

us, the traditional line which comes down to us fro m history is reinforced by the fact that it

produces “an equitable result” 21.

10
RH, paras. 2.7, 2.9, 4.08, 9.02.
11
RH, para. 1.19.
12
RH, paras. 1.09, 1.15, 2.9, 2.32, 2.40, 4.03, 4.05, 4.08, 4.22, 4.29c and e, 4.31, 4.33, 5.15.
13
RH, paras. 2.8, 2.32, 2.39.
14RH, paras. 2.33, 2.37.

15RH, para.2.35.

16RH, para. 5.04.

17RH, para. 2.46.
18
RH, paras. 1.20, 2.39, 2.40, 2.42, 2.43, 2.47.
19
RH, paras. 2.7, 2.46, 4.04, 4.22, 9.01.
20
RH, para. 9.01.
21
RH, paras. 2.45, 8.16-8.20, 9.05. - 10 -

6. Mr. Brownlie will show on Friday that this is not true, that the line advocated by Honduras

does not end in an equitable result when all relevant circumstances are taken into account.

7. It is now my task to show that the non-equitable line proposed by Honduras in order to

divide the maritime areas with Nicaragua in the Caribbean sea is by no means a line which already

exists, based on a tacit agreement, on recogn ition or acquiescence deduced from constant and

long-standing practice.

B. Effectivités and proof of consent

8. Madam President, Members of the Court, yesterday I referred to uti possidetis juris as the

first step in the endeavour by Honduras to sew confusion. We will now consider the following

steps in the argument. It is very striking th at the Respondent, which sets out its claims on a

traditional line based on a tacit agreement deduced from practice, did not reflect this in the wording

of the chapter headings of its Rejoinder.

9. Honduras preferred to conceal the assertion of the traditional line dividing the maritime

areas of Nicaragua and Honduras in chapters on the effectivités and the sovereignty over the islands

of each of the Parties 22. Setting the document out in this way is perhaps surprising, considering the

23
role Honduras reserves to the islands in the dispute submitted to the Court .

10. It is all the more striking since, in its Counter-Memorial, Honduras entitled one of its
18

chapters “Effectivités and the exercise of Honduran soverei gnty and jurisdiction over the islands

24
and surrounding waters north of the 15th parallel” . In its Reply, Nicaragua divided its response

into three chapters, whose respectiv e titles are “The relevance of the e ffectivités to maritime

delimitation”, “Title to the islets and rocks” a nd “The weakness of the Honduran argument based

on conduct” 25.

11. This presentation confirms the inte nt to confuse which underpins the Honduran

Rejoinder. Honduras forces the maritime areas to link up with the islands, despite their differences,

22RH, Ch. 4 and 5.
23
RH, para. 1.05.
24
CMH, Ch. 6.
25NR, Ch. V, VI and VII. - 11 -

developing a very artificial argument on its alleged effectivités . The effectivités may come into

play when sovereignty over the islands is discussed . My colleague, Dr.OudeElferink, has dealt

with this point. But the effectivités play a quite different role, as Mr.Brownlie has already

indicated, when it comes to proving the existence of a legitimate interest over maritime areas.

12. More serious still is the fact that Hondur as claims to be unaware of the elementary

distinction between effectivités as confirmation of a title of territorial acquisition or as proof of that

title and the claim to infer consent from the active, and above all passive, consent of the opposing

Party.

13. Lastly, Nicaragua finds itself forced to glean the arguments with which Honduras

appears to claim to prove Nicaragua’s consent to its alleged traditional line in the chapters of the

Honduran Rejoinder devoted to the effectivités over the islands.

14. Honduras glories in the “consistent disp lay of effective sovereignty and jurisdiction

throughout the area north of the 15thparallel” 27and characterizes the evidence as “extensive” 28,

29 30 31 32 33
19 “substantial” , “clear and compelling” , “compelling” , “overwhelming” , and “conclusive” .

In reality, Honduras is engaging in an exercise of pure self-persuasion.

15. Nicaragua, poor thing, is apparently not on ly incapable of refuting this evidence but the

evidence of its own effectivités north of the 15thparallel is also supposedly very weak,

34
insignificant, and does not “begin to compare with that offered by Honduras” .

16. In fact, even a cursory examination shows that the alleged evidence of Honduran

effectivités is a combination of autosuggestion and conj uring. The evidence Honduras offers is the

exact opposite of what it preaches. There is, of course, no evidence of post-colonial effectivités

which would confirm any uti possidetis; just as, incidentally, there is none of effectivités which

2See, for example, RH, paras. 1.18, 4.01, 9.02.

2RH, para. 2.4. See also paras. 1.18, 5.01-5.04, 5.16-5.17, 5.20.
28
Ibid., paras. 1.04, 5.62.
29
Ibid., paras. 1.10, 5.01.
30
Ibid., paras. 5.03, 5.71, 5.73.
3Ibid., para. 5.01.

3Ibid., paras. 4.29, 5.07.

3Ibid., paras. 5.13.
34
Ibid., paras. 1.10-1.11, 2.05, 4.05, 4.12, 4.17, 4.19, 4.34, 4.35-4.36, 4.65, 5.22, 5.46, 9.05. - 12 -

might serve as the basis of a title of acquisition, or of facts or situations prior to the crystallization

of the dispute which might have given rise to rights of Honduras as a result of Nicaragua’s conduct.

Moreover, there is no point in proving situations or facts which cannot be legally characterized as

effectivités or with respect to which no specific reacti on from other subjects can be required. In

reality, Honduras does not provide proof of any practice of any kind which it could use as a

mainstay to avoid application of the normal rules of the law of the sea until the 1960s. It has built a

shaky house of cards.

17. As to the paucity Honduras ascribes to the proofs of Nicaragua’s effectivités north of

the 15th parallel, it is patent that the only effectivités proved by the Parties in the nineteenth century

have been provided by Nicaragua, to which th e only port in the area, CapeGraciasaDios,

belonged, as the Agent of Nicaragua mentioned on Monday.

18. But more than that, what I wish to emphasize now is that the symmetry Honduras seeks

to achieve by proposing a sort of competition of effectivités reflects a wrong and biased attitude in

the position of the Parties before the Court. It is Honduras which argues the existence of a

traditional line, a boundary deriving from the alleged effectivités. Hence, Honduras asserts that it

20 “is not...making a shelf claim but endeavouring to show the location of an existing single
35
maritime boundary . . . “ . Nicaragua, on the other hand, uses its own effectivités solely to combat

Honduras’s claim, not in order to support its own cl aim, which is based, precisely, on the fact that

no line exists, which is why Nicaragua is asking th e Court to establish one in accordance with the

relevant circumstances.

C. The critical date and proof of consent

19. Honduras is seeking to trivialize the critical date in a case such as the present one where,

according to it, “the conduct of both States go[es] back a long way and [is] based on a pattern of

36
practice manifesting a tacit agreement between the Parties” . Again it creates confusion. My

colleague, Dr. Oude Elferink, has already referred to the critical date in considering the effectivités

on the islands.

35
RH, para. 1.18.
3RH, para. 1.15. - 13 -

37
20. As regards what concerns us here, and contrary to the Honduran view , it is quite clear

that Honduras’s actions after 1977, the date on wh ich the dispute crystallized, do not constitute the

“normal continuation of prior acts” which may be considered by the Court. On the contrary, in

accordance with the criterion adopted in the case concerning Sovereignty over Pulau Ligitan and

Pulau Sipadan (Indonesia/Malaysia) (Judgment, I.C.J. Reports 2002 , p. 682, para. 135),

Honduras’s acts have been “undertaken for the purpose of improving [its] legal position” with

respect to Nicaragua. Hence the effectivités, real or presumed, after 1977 are not relevant to the

Court’s decision. The long-standing practice on which Honduras relies is quite simply imaginary.

21. All influence of the colonial status on the point which concerns us here having been

dismissed, this “long-standing” practice ought to refer to the entire history of relations between

Nicaragua and Honduras as independent republics. Honduras provides no evidence, nothing,

absolutely nothing, in relation to the facts or situations before the last third of the twentieth century.

Nor could this be otherwise since it was Nicaragua which, until 1963, occupied the coast as far as

the mouth of the Cruta River, well beyond the north of Cape Gracias a Dios.

21 22. Considering that the dispute crysta llizes in the second half of the 1960s, the

long-standing practice is prominent by its absence. What Honduras proves is not a long-standing

practice, but long-standing non-practice.

23. Moreover, Honduras reluctantly accepts the period of 1960 (date of the Judgment of the

Court on the Arbitral Award of the King of Spain of 1906) to 1979 (when the Sandinista

Government came to power) as the period during wh ich, as the dispute between the Parties had not

yet crystallized, the Parties, according to Ho nduras, treated the 15thparallel as their “ de facto

38 39
boundary” . Honduras considers that this period is “of central importance to this case” .

Furthermore, it expressly asserts that, bearing in mind the long-established common practice, a

40
maritime frontier “was well-established by 1979” .

37DH, par. 1.15, 1.16.
38
RH, para. 4.04.
39
RH, para. 4.32.
40CMH, para. 7.25. - 14 -

24. However, we for our part consider this period shorter, running from 1963, the date of the

Judgment of the Court on the Arbitral Award of the King of Spain and the date (1977) on which

Nicaragua proposed negotiations with a view to the delimitation of the maritime boundary,

negotiations which Honduras uncondi tionally accepted. Curious. Since the traditional line on

which it now relies must already have existed then and, if that was so, Honduras would not have

failed to indicate it.

25. Honduras must therefore prove that, throughout those 14 years (1963-1977), the conduct

of the Parties was such that Nicaragua behaved so it was condemned to accept parallel 14° 59.8' N

for ever after as the single boundary in all its maritime areas with Honduras in the Caribbean.

26. In any event, the coming to power of the Sandinista Government brought no radical

change in Nicaragua’s policy as Honduras claims, si nce it was the Minister for Foreign Affairs of

the Somoza Government who, over two years before, had proposed to negotiate, and it was he who,

at that non-suspect time, publicly declared that the dividing line did not exist 41. On 7 March 1977,

22 the Minister replied as follows to questions fro m a journalist: “The maritime border between

Nicaragua and Honduras has not been determined . . . on the Caribbean side there still exists no line

dividing the territorial sea, the economic zone a nd the continental shelf between Nicaragua and

Honduras”. And which are the principles which the two governments could follow in order to

draw such a line? asked the journalist. And the Mini ster replied: “The single revised text which is

being discussed at the Third United Nations Conf erence on the Law of the Sea states that these

questions are to be resolved by applying equ itable principles using a median line... where

42
possible” . Two months later, the Minister proposed “to initiate conversations leading to the

determination of the definitive marine and sub-ma rine delimitation in the Atlantic and Caribbean

Sea zone” 43, which the Government of Honduras “accept[ed] with pleasure” . 44

4MN, p. 36-38.
42
MN, Vol. II, Ann. 3.
4Diplomatic Note of 11 May 1977 (No. G-286), ibid., Ann. 4.

4Diplomatic Note of 20 May 1977 (No. 1025), ibid., Ann. 5. - 15 -

D. The alleged proofs of Nicaragua’s consent to the traditional line

27. Honduras feels it is able to show, basing itself on the legislation, on the acts of the

Government and administration allegedly applicable to the disputed zone, on the practice of oil

concessions, the granting of fisheries licences and on naval patrols 45, that Nicaragua had already,

in 1979, agreed to a line based on the prolongation of the parallel on which the terminal point of the

land boundary is situated (14°59.8 ′N): Honduras being the exclusive holder of sovereignty or

sovereign rights north of this parallel, and Nicaragua south of it 46. Honduras mentions many times

the absence of protest by Nicaragua to Honduras’ s activities in order to infer from its conduct an

obligation to accept that line 47.

28. But this alleged proof falls apart as the ac tivities prior to 1979 are in no way specific in

relation to the delimitation or the clai m of sovereignty up to parallel 14° 59.8 ′. So what is there to

protest about? As to the subsequent activities, they cannot be used either ⎯ even where their

nature and content makes them appear relevant ⎯ in view of their date. In any event, all of them

23 have formed the subject of a protest as pr oved by the diplomatic correspondence amply

48
documented by Nicaragua in its Memorial .

29. It must be strongly emphasized that Honduras in no way establishes the validity of its

claim to the traditional line until 1982. Indeed, th e Diplomatic Note of 23 March 1982 is the first

which, in the correspondence between Nicaragua and Honduras, identifies the 15th parallel north as

the dividing line “traditionally recognized by both countries” 49. Nicaragua immediately and clearly

50
rejected it, and has adhered to that position consistently and unconditionally .

30. Honduras has not produced a single official document in which it is stated that

parallel14°59.8'north is the dividing line of th e territorial sea, the continental shelf and the

exclusive economic zone with Nicaragua. Had su ch a document existed, had there had been an

express claim, Honduras could turn the silence, th e absence of any protest from Nicaragua and its

passivity to advantage. But it cannot.

45RH, para. 5.02.

46RH, paras. 1.09, 2.4, 2.5, 4.05, 4.08.
47
RH, paras. 4.17, 5.03, 5.06, 5.15, 5.19, 5.42, 5.45, 5.59, 5.64, 5.72.
48
MN, Chap. 4 and Vol. II, Anns. 8-83 and 100-103.
49MN, p. 42; and Vol. II, Ann. 8.

50See Note 49. - 16 -

E. Legislation and administrative acts

31. Honduras asserts that Nicaragua did not protest against Honduran administration and

application of Honduran legislation 5. Quite to the contrary, Nicaragua did so as soon as it learned

of them and whenever it was relevant. But ther e was nothing before the dispute crystallized: only

very general legislation, nothing specific to the area in dispute. As the Court observed in the case

concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , only that

legislation and those administrative acts “which leave no doubt as to their specific reference” to the

area in dispute can be considered relevant displays of authority. Regulations or administrative acts

of a general nature can therefore be considered “onl y if it is clear from their terms or their effects”

that they pertain to that area (ibid., Judgment, I.C.J. Reports 2002, pp. 682-683, para. 136).

24 32. Once the dispute had crystallized, Nicaragua systematically protested against any and all

acts whereby Honduras attempted to fabricate an effectivité after the fact. In any event, this

concerned activities not germane, under the crite rion reaffirmed by the Court in the case

concerning Sovereignty over Pulau Ligitan and Pulau Sipadan , ( ibid., p. 682, para. 135), for

purposes of the Court’s decision.

F. Oil exploration concessions

33. Thus, it is appears clear that Honduras, relying on outer appearances and finding support

in the period, between 1963 and 1975, in which the oil concessions were granted, clutches at them

as the lifeline conferring some semblance of credibility to its claim.

34. Honduras thus lingers over an examina tion of the oil concessions, first those of

52 53
Nicaragua and then its own . The Honduran concessions extended up to the 14° 59' 08" parallel,

that is to say up to the parallel where it has ⎯ wrongly ⎯ situated the terminus of the land

boundary, which, as we know, corresponds to the 14° 59.8'N parallel. For a time Nicaragua’s

concessions did not extend beyond that point.

5RH, paras. 5.42-5.45.
52
RH, paras. 4.20-4.33.
5RH, paras. 5.04-5.15. - 17 -

35. Honduras infers that there is therefore a “tacit agreement” adopting the 15th parallel “as

the dividing line between oil concessions granted by the two States” 54. Honduras repeats this

assertion over and over 55, transforming the dividing line between concessions (a line which is,

56
moreover, very uncertain) into a de facto boundary between the two States .

36. In reality, there was neither agreemen t nor acquiescence. Honduras grossly exaggerates

when it states that nine of Nicaragua’s 18 con cessions explicitly referred to the 15thparallel as

57
their northern limit (that being understood to be 14° 59' 08" N) .

37. First, concessions were not so numerous in the northern part of Nicaragua’s continental

25 shelf. Honduras does not distinguish correctly between decrees granting concessions, decrees

extending them and renewals 5. From 1965 onwards, Nicaragua had ten concession areas in the

northern part of its continental shelf (Department of Cape Gracias a Dios), practically all of them

granted to two subsidiaries of a United States parent company: Union Oil and Western

Caribbean/Occidental.

38. Secondly, in 1974 the concessions referring to the 14° 59' 08" N parallel formed a front

of only 23miles in the outermost zone of the con tinental shelf, while all the others, on a front of

more than 70miles (from the coast to the 81°54' meridian), had open, undefined northern limits

(slide No. 1).

39. Let us take a closer look at this. In late 1965 Union Oil, formerly Pure Oil, was granted

the areas closest to the coast. It received oneha lf of the concession areas in the zone, the most

extensive ones; the northern limits of these were left open and undefined along a broad front of

more than 70 miles ⎯ as I have said ⎯ pending determination of the dividing line with Honduras 59

(slide No. 2).

40. While the south-eastern end was well define d, these concessions stretched northward “to

the intersection with the borderline with the Republic of Honduras, which remains undefined” ⎯ I

5RH, para. 1.09.
55
RH, paras. 1.16, 2.32, 4.64, 5.03.
56
RH, paras. 4.03, 4.05, 4.08, 4.22, 4.28, 4.29 (c) and (e), 4.31, 4.32, 4.33, 5.15.
5RH, paras. 4.22-4.24.

5RH, para. 4.24.

5RN, paras. 5.17-5.24. - 18 -

stress: which remains undefined. From that point the line turned directly westward until reaching

the meridian serving as its north-western limit 60. This was so even though the mixed commission

had already at those dates determined the end point of the land boundary to be on

61
the 14° 59.8' parallel .

41. The criterion adopted in delimiting Union Oil’s continental shelf concessions contrasts

with the exact determination of the continental la nd area granted to that company, that area having

its express northern limit “at the intersection with th e border line with the Republic of Honduras at

the mouth of the Coco river” 62(slide No. 3).

42. In 1967 the other company, Western Caribb ean, a subsidiary of Signal Oil, subsequently

associated with Occidental, started acquiring the most distant areas of the northern zone of

Nicaragua’s continental shelf, setting the north ern limit of nearly all its concessions at
26
63
the 14° 59' 08" parallel . This was also the case of Mobil’s concession (slide No. 4).

43. However, Mobil relinquished its concession in 1973; Union Oil acquired and enlarged

that concession in 1974. At that time, the Union Oil model (calling for an open and undefined

64
limit) was adopted for the concession area (slides Nos. 5 and 6) .

44. It is also very noteworthy that, to the north of its concessions, between the 81°54' and

the 81°30' meridians, Western Caribbean/Occide ntal in 1970 sought and in 1971 obtained a new

lid-shaped concession, the so-called Northern Block , which used the 14°59'08" parallel as its

southern limit, fixing the northern limit at the same 15° 00' parallel, that is to say to the north of the

65
parallel on which the terminal point of the land boundary lies . Given the logic adopted by

Honduras, it is surprising that it failed to protest against what it could have considered to be

encroachment on an area over which it claimed sovereign rights (slide No. 7).

60
RN, para. 5.18; and Vol. II, Anns. 14 and 15.
61MN, p. 77; and Vol. II, Ann. 1.

62RN, para. 5.20; and Vol. II, Ann. 14.
63
Bloque Misquito (Decreto No.46-DRN, of 17February1967, La Gaceta, diario official , No.117, of
29 May 1967, p. 1254), Bloque No.1 (Decreto No.86-DRN, of 15 May 1968, La Gaceta, diario official , No.206, of
9 September 1970, p. 2612); Bloque Agua Azul (Decreto No. 145-DRN, of 10 January 1971, La Gaceta, diario official,
No. 46, of 24 February 1971, p. 565).

64RN, paras. 5.22, 5.23; and Vol. II, Anns. 16 and 18.
65
Decretos No. 144-DRN, of 10 January 1971 and No. 151-DRN, of 9 February 1971 ( La Gaceta, diario official,
No. 203, of 7 September 1977, p. 563). See the judges’ folder document No. 1. - 19 -

45. In sum, in 1974 none of Nicaragua’s concessions lying closest to Honduran concessions

had a northern limit fixed at the 14° 59.8' N parallel, where the end point of the land boundary lay,

according to the determination by the mixed commission in 1962.

66
46. The fact, acknowledged by Honduras itself , that within the space of a few days some

concessions followed one criterion and others a di fferent one shows the influence the concession

holders had over the drafting of the decrees and the lack of any governmental policy concerning the

maritime dividing line. The republics had no policy, the American companies did. The fact that

Mobil’s northern limit was modified when the Mo bil concession passed to Union, changing from

defined to indeterminate, is very significant and revealing (slides Nos. 5 and 6).

27 47. The references to the 14° 59' 08" N paralle l in the Honduran concessions and in a few of

the Nicaraguan concessions suggest that the prov isions concerning these concessions were drafted

in the offices of the concession holders. In fact, th e error in situating the end point of the land

boundary appears in the English translation of the report by the Honduras-Nicaragua mixed

commission having chosen that point, not in the original Spanish-language text, which correctly

67
refers to the 14°59.8' parallel , as my friend and colleague ProfessorAlain Pellet will discuss in

greater detail.

48. The limits of a concession are one thing, the territorial boundaries of a State another.

Establishing the limits of a concession does not mean fixing a boundary between two States. Thus,

none of the Honduran concessions states that its southern limit coincides with the maritime

boundary with Nicaragua. Similarly, none of the Nicaraguan concessions defining a northern limit

specifies that the limit coincides with the maritime boundary with Honduras.

49. For example, the biggest of the concessi ons granted to Western Caribbean/Occidental,

which fixes its northern limit at the 14°59'08" parallel, is described as an area 24.7kmwide

and 53.5 km long “limited on the north, south, east a nd west by the waters of the Atlantic ocean or

68
the Caribbean Sea” , not by a boundary between States.

66
RH, para. 4.25.
67
MN, p. 77, footnote 82.
68Solicitudes de exploración de petróleo de WesternCaribbean Petroleum Co., La Gaceta, diario official ,
No. 170, of 28 July 1967, p. 1734. - 20 -

50. It must be kept in mind that Nicaragua in its oil legislation did not follow the model

calling for public tenders for concession areas define d by the administration. Its law was based on

applications made by companies interested in explor ing, and they were free to define the limits of

the area which they wished to explore. The legislation defined only the surface area of the

concession (400,000hectares at most), recommending that it be quadrilateral in shape. Nothing

more. The Nicaraguan authorities thus granted the concessions sought. It was for lack of

applications that concessions were not granted north of the 15th parallel. When Western Caribbean

sought a concession with a northern limit at 14° 59' 08", and then another with a northern limit at

15° 00', the Nicaraguan administration said “yes indeed” without considering whether or not those

28 concessions extended up to the boundary or even we nt beyond it. The Nicaraguan administration

said “yes indeed” in keeping with its usual practice in its relationships with oil companies.

51. If the policies of the administration are determined by the companies, one may well think

that, for both Mobil and Western Caribbean/Occide ntal, it was above all a question of enhancing

certainty and security in the definition of their concession zones; thus, they refer to the 14° 59' 08"

parallel in light of the indisputable fact that, whatever the line dividing the continental shelf

between Nicaragua and Honduras, it can never lie sout h of that parallel. Union Oil, on the other

hand, does not share those concerns, because th e areas granted by Honduras adjoining those of

Nicaragua belong to it as well.

52. In an area likely to be contested, parti es wishing to remain on good terms can refrain

from granting concessions in order to avoid conflic t, without thereby implying any disclaimer of

legitimate interests. Thus, in referring to the limits of the oil concessions granted by Indonesia

in 1966 and Malaysia in 1968, the Court observed that

“[t]hese limits may have been simply the manifestation of the caution exercised by the

Parties in granting their concessions. This caution ⎯ adds the Court ⎯ was all the
more natural in the present case becau se negotiations were to commence soon
afterwards between Indonesia and Malaysia w ith a view to delimiting the continental
shelf”. (Sovereignty over Pulau Ligitan and Pulau Sipadan, Judgment, I.C.J. Reports

2002, p. 664, para. 79)

53. It is a qualitative leap from oil concession limits to the boundary line between sovereign

States. Honduras plays semantic games. For inst ance, it has accused Nicaragua of distorting its

words, on the ground that Nicaragua in its Reply has Honduras stating that the Nicaraguan - 21 -

concessions “used the 15th parallel as the norther n boundary”, when what Honduras really said in

its Counter-Memorial was that Nicaragua’s c oncessions treated “the 15thparallel as the

northernmost limit of the territory of Nicaragua, in the sense that none of the concessions reaches

69
north of that parallel” .

54. But Honduras also asserts: “Oil concession practice by Nicaragua reveals that Nicaragua

29 has long accepted that it does not exercise sovereignty and jurisdiction north of the 15th parallel” 70.

Going even further, it asserts without hesitation that Nicaragua “has expressly recognized”

Honduras’s sovereignty north of the 15th parallel “f or example, in recognizing Honduras’s right to

grant the Coco Marina oil concession” 71, an assertion for which no documentary support is

provided.

55. Honduras believes the Coco Marina operati on, carried out in 1969, to be “clear and

decisive” 72. “The existence of a tacit agreement between the Parties as to a boundary at

the 15th parallel”, says Honduras, “is unambiguous in the clear and compelling evidence provided

by Honduras on the ‘Coco Marina Joint Operation’ , a joint venture which treated the 15th parallel

as the dividing line of the two Parties’ areas of respective competence” 73(slide No. 8).

56. In the view of Honduras, this operation “is incontrovertible proof that Nicaragua

accepted that the area north of the 15thparallel was subject to Honduran jurisdiction,

74
otherwise” ⎯ Honduras goes on ⎯ “it would never have entered into such a joint undertaking” .

Honduras, citing a report by Union Oil to the Hondur an Minister of Natural Resources, points out

that the operation was approved by the Nicaraguan and Honduran Governments on the

understanding that the expenses would be equally shared by Union Oil Nicaragua and Union Oil

75
Honduras .

69RH, para. 4.29(b). Emphasis by Honduras.
70
RH, para. 2.5.
71
RH, para. 2.30.
72RH, para. 4.08.

73RH, para. 4.29.

74Ibid.
75
RH, para. 5.13; and Vol. II, Ann. 252. - 22 -

57. To characterize this operation as an acknowledgement by Nicaragua of Honduras’s

sovereign rights north of the 15thparallel is brazen , to say the least. In truth, the Coco Marina

operation undermines Honduras’s claims. If the wells the companies wanted to open were on the

Honduran continental shelf, along the 15° 00'N pa rallel, the rationale for a joint operation cannot

be explained. The operation lies to the north of the parallel marking the end point of the land

boundary and accordingly disproves that the paralle l fixes the maritime dividing line. The same

report cited by Honduras specifies that the operation was carried out “in the area of the maritime

30 boundary in the Caribbean Sea between Honduras and Nicaragua”. The report also states, although

Honduras preferred not to mention this here, that, as agreed between the Union Oil subsidiaries, the

base of operations and logistics centre for the project would be at Puerto Cabezas (Nicaragua).

58. Further, while this is a joint undertaking, it is a joint project of Union Oil subsidiaries,

not of Nicaragua and Honduras. From Union Oil’s point of view, it was definitely prudent to act

by way of a joint operation between its subsidia ries, as the delimitation between Nicaragua and

Honduras was still in progress.

59. The operation was agreed by the two subsidiaries and, as stated in the report, was

approved by the Governments of Honduras and Nicar agua, but there is not a single document

confirming this latter assertion and therefore allo wing any conclusions to be drawn as to the

respective positions of Nicaragua and Honduras on th e questions of sovereignty. We are dealing

here with internal correspondence between a senior executive of a concessionaire and his contact in

the Honduran administration.

60. The fact that only three exploratory wells were drilled in the Honduran concessions lying

in the disputed area, and then only in marginal z ones, is very significant. The companies refrained

from involvement in exploratory activities wher e sovereignty was undetermined. In places, like

Coco Marina, where the prospects of finding oil appeared very good and conflict was likely to be

unavoidable owing to the location of the wells, the companies set up a joint operation. - 23 -

61. Honduras accuses Nicaragua of manipula tion, based on Honduras’s allegation that

“[i]nstead of addressing the merits of the argum ents, . . . Nicaragua raises questions of minor

importance about the Honduran evidence;... an approach which seems intended to divert

attention” .6

62. We must however go to a footnote to l earn what “questions of minor importance” are

being referred to by Honduras. That note states that Nicaragua highlights the fact that a document

submitted by Honduras was undated or that the “Interstate Study Commission”, the source of the

77
document, was only a Honduran commission .

31 63. If manipulation there is, it is by Honduras. Given the name of that Commission, it was

very reasonable for Nicaragua to point out that it was a Honduran national commission. But that is

not the issue. Honduras ignores Nicaragua’s observations on the report; yet these are very much

78
on point . According to Honduras, the Commission’s opinion “stated that the maritime boundary

with Nicaragua was at 14° 59' 08"” 79. But that was absolutely not the Commission’s opinion. One

80
need only read the document produced by Honduras itself .

64. In respect of the oil concessions, the Commission maintained that Honduras should

propose ⎯ the word is important: proponer in Spanish ⎯ the parallel passing through the end

point of the land boundary (which it places at 14° 59.8'N) as the maritime dividing line with

Nicaragua. It is clear that the Commission’s opi nion reflected political intent; it did not place a

right on record. But this did not lead to any type of diplomatic exchange between the Parties. The

Honduran Government did not propose what it had been asked to “pr opose” to the Nicaraguan

Government. Thus, in 1969 Honduras was conti nuing to study where its boundary with Nicaragua

should run on the continental shelf, but no concrete proposal issued from this study in later years.

76RH, para. 4.29 (e).

77RH, para. 4.29 (e), footnote 33.
78
RN, para. 5.26.
79CMH, para. 6.28.

80CMH, Vol. II, Ann. 109. - 24 -

65. According to Honduras, “there is ample s upport in the jurisprudence of the Court for the

proposition that the grant of oil concessions and the use by two adjacent States of the same line as a

81
terminus for their concession areas is highly relevant” in delimiting a boundary .

66. In fact, to go by the jurispruden ce, oil concessions are not in themselves a relevant

circumstance for delimitation. Mr.Brownlie has al ready made this point in an earlier statement.

As the Court noted in the case concerning Land and Maritime Boundary between Cameroon and

Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), oil concessions “may . . . be taken

32 into account” “[o]nly if they are based on expr ess or tacit agreement between the parties”

(Judgment, I.C.J. Reports 2002, p. 140, para. 304).

67. Honduras attempted in its Counter-Memoria l to turn to account the Court’s Judgment in

the Continental Shelf case between Tunisia and Libya. In its view, the practices of Nicaragua and

Honduras as to the 15th parallel are “strikingly” coincident with those of Tunisia and Libya, which

both respected the line forming a 26° angle from Ras Ajdir. It is not possible, concluded Honduras,

82
“to see this line of coincidence as anything other than a maritime boundary” .

68. The comparison made by Honduras does not stand up if we go somewhat beyond a

83
superficial reading. In its Reply Nicar agua refuted this “striking” semblance . The conclusion to

be drawn from this precedent is that:

“The reason for admitting conduct as a circ umstance relevant to delimitation is
the consideration that the Parties associate it with an equitable result... [T]he

harmonious conduct of the Parti es . . . ends up being a circumstance that corroborates
and confirms the equitable character of a specific line determined by judges or
arbitrators based on all the circumstances, primarily geographic, relevant to the area

affected by the delimitation. If what is equitable, according to these circumstances,
does not match that conduct, the conduct by itself cannot be considered relevant. And
it is clear that although the method of using the 15th Parallel as a division in the

context of Honduran and Nicaraguan branches of the same United States oil
companies was convenient for their own ends, by no means can it be considered as
equitable for the Parties who today bring their claims before the Court, taking into
84
account all the relevant circumstances of the area.”

81RH, para. 1.18.
82
CMH, paras. 7.18 and 7.19.
83
RN, paras. 7.24-7.29.
84RN, para. 7.29. - 25 -

69. We cannot but believe that Honduras shares these conclusions, as it did not revert in its

Rejoinder to the value to its case of the Court’s Judgment in the Continental Shelf case between

Tunisia and Libya.

70. To date neither the Court nor any other in ternational judicial body has ever accepted that

a dividing line between the maritime areas of neighbouring States could be based on the tacit

agreement inferred from oil concession practice. Not even in reference to a dividing line limited to

the continental shelf alone. Still less when a si ngle dividing line is requested for both the

continental shelf and the exclusive economic zone.

33 71. Determining when an obligation starts or ch anges or when a right is lost on the basis of

tacit agreement or acquiescence is patently more complicated than establishing the effects of an

express declaration of intent, particularly bearing in mind the difficulty of discerning intent or

purpose from conduct alone, and still more so from omi ssions. Particular rigour is thus required in

the appraisal of conduct from which legal consequences are claimed.

72. This is particularly so in the appraisal of consent which is not express when territorial

sovereignty or sovereign rights are at issue. And even more so when the prejudice which such

consent would cause to the legitimate interests of the State concerned is well known.

73. In addition, the distinction between knowledge of a fact and awareness of its legal

consequences may be particularly useful. De veloping countries very often lack adequate

diplomatic, technical and administrative infrastructures; their institutional framework is weak;

they exist in situations of great instability. Con sequently, simple negligence must be ruled out as a

cause of possible oversights or omissions of conduct , as the latter should not be interpreted as

acquiescence, especially when territorial inte rests are at stake. Even if knowledge of the facts can

be shown ⎯ moreorless ⎯ awareness of their legal consequences can often elude their real

capabilities.

74. The least that can be required of anyone seeking to turn the other party’s conduct and

omissions to advantage is that he should base himself upon acts to which the other party is under an

obligation to respond or must bear the consequences. It is only in such circumstances that one

party might turn the other’s conduct, silence or lack of protest to advantage. - 26 -

75. It was precisely because there had been no o fficial notification that the Court held, in the

case concerning Sovereignty over PulauLigitan and Pulau Sipadan (Indonesia/Malaysia) , that

there was no ground for interpreting as acquiescence th e silence of Great Britain regarding a map

appended to the Explanatory Memorandum submit ted by the Dutch Government to the Second

Chamber of the States-General for the ratificati on of the treaty of 20June1891, ruling on the

34 frontier in the Borneo region; this despite the fact that the documents had been published in the

Official Journal of theNetherlands and were know n to the Foreign Office thanks to the diligent

work of Her Britannic Majesty’s diplomatic agent in The Hague ( ibid., Judgment, I.C.J. Reports

2002, p. 28, para. 48).

76. Were the Honduran concessions and th e subsequent explor ation work known to

Nicaragua? Was Nicaragua supposed to know of them? Should Nicaragua have presumed their

effects on frontier delimitation in the Caribbean Sea?

77. If a State is not under an obligation to be familiar with the political constitutions of

neighbouring countries, it is under even less of an obligation to scour their Official Journals every

day to inform itself of their oil concessions. We are talking here about situations which occurred

over 40 years ago and of ministries of foreign affa irs, such as that of Nicaragua, which had a staff

of 40 employees at the most. Regarding the Ni caraguan and Honduran oil concessions, we could

speculate as to the motives prompting one or the ot her to act as they did. But there is nothing

which might reasonably be shown to prove any inte nt on Nicaragua’s part to consent to a dividing

line such as the one Honduras claims exists.

78. The companies which obtained oil c oncessions in Honduras and Nicaragua were

subsidiaries of the same parent company in the Un ited States; that is why one might suppose that

the concession areas they held corresponded to their own interests, without there necessarily being

any reason to infer the intent of the neighbouring Republics to decide tacitly on a dividing line.

Neither the concessions granted by Honduras nor th ose granted by Nicaragua which referred to

parallel 14° 59' 08" mentioned any relationship with the Parties’ maritime boundary.

79. Similarly, not the slightest relevant exch ange of diplomatic or official correspondence

between the two Parties’ Ministries of Foreign Affa irs or other government departments or offices

exists. Nor is there a trace of any exchange of notes, protocols, memoranda or minutes for the - 27 -

Coco Marina project. Nothing, absolutely nothi ng. To establish its so-called traditional line,

Honduras has to resort to a letter addressed by a Union Oil executive to a Honduran civil servant to

show that the Governments approved the project. Was the agreement verbal? Made at a

presidential barbecue? That modus operandi was characteristic of “compadre” politics, which left

35 companies free to act as they chose once the personal demands of the compadres had been

satisfied. This has nothing to do with the intention of the Parties, States or peoples to fix a

maritime dividing line.

80. Unable to call on God as a witness in a legal dispute, Honduras turns for support as a last

resort to the statements of Somoza’s former compadre, Mr.López Arellano, and of two other

85
persons, who were Honduran civil servants at the time, who state that the oil concessions were

attributed “based on the mutual understanding of Honduras and Nicaragua that the 15thparallel

86
was the location of the maritime boundary between the two States” .

81. For its part, Nicaragua could certainly invoke the testimony of the man who was Minister

for Foreign Affairs during those years, Dr. Alejandro Montiel Argüello, but has decided not to take

part in an affidavit “contest”, aware that what the protagonists in either Party now say will be

devoid of any probative value, except in matters wh ich could cause them pr ejudice. Nevertheless,

Nicaragua did refer to the testimony by Dr. Mon tiel Argüello 30 years ago, in 1977, when he was

Minister under Somoza, before the dispute surfaced. That testimony, which has never been refuted,

87
is mentioned in Nicaragua’s Memorial and can be found in Annexes2 and3 : “The maritime

border between Nicaragua and Honduras has not b een determined”, asserted Foreign Minister

88
Montiel . When Honduras put its cards on the tabl e, which it did not do until 1982, Nicaragua

89
clearly rejected Honduras’s claim on a number of occasions .

82. We are, moreover, speaking here of expl oration activities carried out with no particular

urgency over some 12 years and which were halted, for lack of results, over a quarter of a century

ago.

85RH, Vol. II, Anns. 246-248.

86Ibid., para. 5.04.
87
MN, Vol. I, pp. 37-38; and Vol. II, Anns. 2-3.
88MN, Vol. II, Ann. 3.

89MN, p. 42 et seq. - 28 -

83. Every time one of the parties to a maritime delimitation dispute brought before the Court

has sought to have a line recognized by alleging that the conduct of the other party could be viewed

as acquiescence, the Court has concluded that that th e necessary conditions to do so did not exist.

36 It was thus in the Delimitation of the Maritime Boundary in the Gulf of Maine Area case between

Canada and the United States ( Judgment, I.C.J. Reports 1984 , pp.303-312, paras.126-154), to

which I will refer later; so it was too in the Maritime Delimitation in the Area between Greenland

and Jan Mayen case between Denmark and Norway ( Judgment, I.C.J.Reports 1993 , pp.53-56,

paras. 33-41).

84. If there is a precedent which can be cite d in the case currently before the Court it is

undoubtedly that of the Delimitation of the Maritime Boundary in the Gulf of Maine Area case

between Canada and the United States ( Judgment, I.C.J. Reports 1984 , pp. 03-312,

paras. 126-154). That precedent clearly supports the position which Nicaragua has upheld from the

start.

85. In that case, the Parties discussed at length the issue of whether their conduct over a

given period of their relationshi p constituted acquiescence by one of them in the application of a

specific method of delimitation advocated by the other Party or whether such conduct had not

resulted in a modus vivendi , respected in fact, with regard to a line corresponding to such an

application (ibid., pp. 303-304, para. 126).

86. It was Canada which argued that the conduct of the United States involved a kind of

consent by that country to the equidistance method, particularly as regards the delimitation to be

effected in the Georges Bank sector (ibid., p. 304, para. 127).

87. According to Canada the conduct of the Un ited States might be taken into account, first,

as evidence of genuine acquiescence; secondly, as an indication, at least, of the existence of a

modus vivendi or of a de facto boundary, which the two States had allowed to come into being;

and, thirdly, as mere indicia of the type of de limitation that the Parties themselves would have

considered equitable (ibid., pp. 304, para. 128).

88. The relevant facts relating to Canada’s cl aim may be summarized briefly. Canada began

in 1964 to issue offshore options (permits) for th e exclusive exploitation of oil and gas on its own

side of what it regarded as the median line dividing Georges Bank. The Canadian Government had - 29 -

published information on the subject in the Monthly Oil and Gas Report and the issuance of

Canadian offshore permits was known to the United States authorities by 1 April 1965 at the latest,

37 following correspondence between the Bureau of Land Management of the United States

Department of the Interior and the Canadian Department of Northern Affairs and National

Resources. That was followed by diplomatic correspondence between the United States Embassy

in Ottawa and the Canadian Department of Exte rnal Affairs. A letter sent on behalf of the

Canadian Under-Secretary of State for Extern al Affairs, dated 30August1966, explicitly

mentioned the median line, but the United States did not reserve its position until an aide-memoire

of 5November1969. Canada argued that, in practice followed from 1964 until the end of1970,

the United States did not oppose the Canadian contention and submitted that mention was first

made in diplomatic correspondence of the claim advanced by the United States to a boundary along

the Northeast Channel on 18 February 1977 (ibid., pp. 305-307, paras. 131-136).

89. Although, in the Chamber’s view, the attitude of the United States until the end of

the1960s was characterized by “uncertainties and a fair degree of inconsistency”, it refused to

acknowledge the supposed acquiescence of the United States claimed by Canada:

“the facts advanced by Canada do not warra nt the conclusion that the United States
Government thereby recognized the median line once and for all as a boundary
between the respective jurisdictions over th e continental shelf; nor do they warrant
the conclusion that the mere failure to r eact to the issue of Canadian exploration

permits, from 1964 until the aide-memoire of 5 November 1969, legally debarred the
United States from continuing to claim a boundary following the Northeast
Channel . . .” (ibid., p. 307, para. 138).

90. The Chamber considered that Canada coul d not rely on the technical arrangements of an

official of the Bureau of Land Management of the United States with his Canadian correspondents

as though they were an official declaration of the United States Government ( ibid., p.308,

para. 139).

91. Furthermore, while it might have been con ceded that the United States showed a certain

imprudence in maintaining silence after Canada ha d issued the first permits for exploration, “any

attempt to attribute to such silence, a brief sile nce at that, legal consequences taking the concrete

form of an estoppel, seems to be going too far”, the Chamber declared (ibid., p. 308, para. 140). - 30 -

38 92. The Court recognized that, when Canada clearly stated its claims at the diplomatic level,

a more rapid reaction from the United States Departme nt of State might have been expected; “to

conclude from this, however, in legal terms, that by its delay the United States had tacitly

consented to the Canadian contentions, or had forfeited its rights is, in the Chamber’s opinion,

overstepping the conditions required for invoking acquiescence or estoppel” ( ibid., p.308,

para. 142).

93. As for the existence of a “ modus vivendi boundary” or a “de facto maritime limit” based

on a coincidence between the lines u sed by the Parties, which was cl aimed to have been respected

by them and by numerous oil companies from 1965 to 1972, at least, the Chamber noted that, even

if a demarcation existed between the areas for which each of the Parties issued permits, “the period

from 1965 to 1972, ‘at least’ . . . [was] too brief to have produced a legal effect of this kind” ( ibid.,

p. 311, para. 151).

94. Lastly, the Court rejected Canada’s clai m that it could be inferred from the conduct of

the Parties that the application of the method advocated by Canada had been accepted by the

United States as “an equitable culmination of the delimitation process” ( ibid., p.311, para.152)

and declared that it was impossible to conclude th at there was “a binding legal obligation, in their

bilateral relations, to make use of a particul ar method for delimiting their respective maritime

jurisdictions” (ibid., p. 312, para. 154).

95. In the case at hand, there was no dipl omatic exchange regarding the practice of

attributing oil concessions which would have enab led Nicaragua to learn of Honduras’s claim to

take the parallel 14°59.8' N as the dividing li ne for the continental shelf, not even any

correspondence between the technical departments of the two countries. It was Nicaragua which

suggested in 1977 negotiations for delimitation, which were unconditionally accepted by Honduras

at a time when the practice of concessions was at its height. This practice lasted from 1965 to 1978

only and was limited to explorator y wells, of limited scale, in the disputed area and was halted

owing to a lack of results without leaving any trace. When Honduras made its claim official

in1982, Nicaragua rejected it cl early and persistently. In the Gulf of Maine case, the Chamber

39 made the findings to which we have just referre d without using them as an argument — as it itself

indicated — as the continental shelf was only one of the subjects of the delimitation which it was - 31 -

required to make ( ibid., p.307, para.137). Similarly, in our case, the purpose of the Application

filed with the Court is not confined to requesting a delimitation of the continental shelf.

Madam President, do you think this would be a good moment for a break?

Le PRESIDENT : Oui, je le crois. Merci, Monsieur Remiro. L’audience est suspendue.

L’audience est suspendue de 11 h 30 à 11 h 50.

Le PRESIDENT : Veuillez vous asseoir. Monsieur Remiro, vous avez la parole.

Mr. BROTÓNS:

96. Madam President, Members of the Court, I will now refer to fisheries activities. As far

as these are concerned, Honduras asserts that it has “provided extensive evidence demonstrating its

long-standing regulation of fisheries activities in the maritime and insular area north of the

90
15thparallel”, with such activities taking place “under governmental authority” . Madam

President, Members of the Court, all this is mere verbiage.

97. Now, in its Rejoinder, Honduras menti ons three fisheries concessions between1975

and 1979 9. It should be noted that only one of those, the temporary permit granted in 1977 to

Mariscos de Bahía S.A., refers to parallel15° beyond the 80° meridian. Incidentally, the

administrative decision of the Honduran Ministry of Natural Resources of 7 January 1977 was not

published, but, even supposing that Nicaragua had had knowledge of it, and quite apart from the

suspect date of the decision, Honduran fishing boats were seized by Nicaraguan coast guards north

of parallel15° in the following years. Can ther e be any more expressive way of asserting a right

than that?

40 98. Unlike Honduras, Nicaragua — according to Honduras once again — has not produced a

single fishery licence or concession north of the 15th parallel 92.

99. However, as we have already shown with respect to turtle fishing, it was Nicaragua

which, for over a century, negotiated successive ag reements with Great Britain, which wanted to

9RH, para. 5.16.
91
RH, para. 5.23.
9RH, para 4.19; see also paras. 4.34, 4.36 and 4.64. - 32 -

93
safeguard the fishing activities of the Cayman Islanders . The last of those agreements expired in

August 1959. Dr. Oude Elferink has already referred to this subject. For the moment, I would just

like to point out that those negotiations implied a presence, historical legislation and administrative

activity towards the end of the nineteenth century , as well as undeniable continuity until, at the end

of the 1950s, Nicaragua decided not to renew th e agreement sought by the United Kingdom. Thus

it is possible to document the boarding and inspection of fishing boats for dates as far apart as 1904

and 1970. So what was Honduras doing before and after these dates? It is clear that Honduras was

not present in the disputed area of the Caribbean Sea and that it had no activity there until well into

the second half of the twentieth century.

100. The correspondence of British experts w ith the Foreign Office in 1958 regarding the

94
extent of Nicaragua’s territorial waters, to which Nicaragua referred in its Rejoinder , might be

purely speculative, but it is relevant spec ulation not “immaterial” as Honduras claims 95, because it

reveals that there was no awareness whatsoever of the existence of a traditional dividing line

between Honduras and Nicaragua at the end of the 1950s. Honduras itself, in its Rejoinder,

emphasizes an extract from the letter dated 27November1958 addressed to Mr.Burr of the

Colonial Office by Commander Kennedy, in which, referring to the Half Moon Reefs, he said:

“They might... be claimed to be on the con tinental shelf of Honduras, depending on how the

96
boundary across the shelf be finally agreed” . These are facts that Honduras cannot deny.

101. Honduras lays stress on witness statements to show the existence of fishery

97
concessions, an issue which it views as relevant to the determination of an existing boundary .
41
98
Logically enough, Honduras did not greatly appr eciate Nicaragua’s criticisms on this point . But

why should Nicaragua have protested agains t these activities on the basis of licences whose

territorial scope was not specified and of which we are now aware solely by virtue of witness

statements of fishermen no doubt carefully selected?

9RN, paras. 4.46-4.50.

9RN, Addendum.
95
RH, para. 4.62.
96
RH, para. 4.61.
9RH, paras. 1.18, 2.28, 5.03, 5.17, 5.22, 5.24 and 5.25.

9RH, paras. 5.26-5.30; CMH, paras. 6.34-6.36, 6.43-6.44 and 6.50; RN, para. 6.51 et seq. - 33 -

102. The statements by those who claim neve r to have seen Nicaraguan fishing vessels north

of parallel15° are devoid of credibility, fo r these are the very same persons who claim,

immediately afterwards, to have seen only Honduran vessels, even though the presence of

99
Jamaican fishermen is a well-established fact . Some of the witnesses express themselves with

such technical precision that one is inclined to doubt that they are responsible for the intellectual

100
content of their statements: while one of them speaks to us of the “fishing community” , another

astounds us by declaring that “since the Award i ssued by the International Court of Justice”,

101
parallel15° has always been recognized as the border between Honduras and Nicaragua . How

many lawyers could refer to the principal judici al organ of the United Nations with such great

precision? How is one to explain the fact that Honduras boarded and inspected Nicaraguan fishing

vessels north of parallel 15° if, according to the testimony of old Honduran sea-dogs, they had not

been seen in the area for 30 or 40 years? How is one to account for the fact that the Nicaraguan

coastguards boarded, inspected and “bothered” H onduran fishing vessels north of parallel15° if,

according to these same depositions, they had been conspicuous by their absence from those waters

for decades 10?

103. Honduras particularly censures Nicaragua for its silence about evidence provided in the

Honduran Counter-Memorial referring to fishing licences obtained from Honduran authorities in

103
the 1950s . But it turns out that the evidence provided by Honduras is confined to a single

deposition, that of Mr. Daniel Santos Solabarrieta Armayo 10, who claims to have been granted one

of these licences in 1958.

42 104. It is possible that Honduras issued fishing licences during those years. Nicaragua also

issued some. But to deduce from that that H onduras exercised sovereign jurisdiction as far as

parallel15° is a very different matter. In fact , Honduras should be grateful to Nicaragua for not

entering into the details of the statement by Mr. Daniel Santos Solabarrieta Armayo who, based in

99CMH, para. 6.37.

10CMH, para. 6.7; Vol. 2, Ann. 68.
101
CMH, p. 106, note 69, Vol. 2, Ann. 78.
102
CMH, Vol. 2, Ann. 66.
10RH, para. 5.19.

10CMH, Vol. 2, Ann. 82. - 34 -

one of the remote Bay Islands, Guajana, informs us that in 1958 he devoted himself to shrimp

fishing, sailed the Caribbean and the Antilles, a nd reached Serranilla and Rosalinda, stopping at

parallel 15°.

105. According to the statement of Mr. Daniel Santos Solabarrieta Armayo, he was the only

fisherman in the whole of Guanaja. Don Daniel had ability. Over the years he built up a small

fleet of ten vessels and quit his fishing activiti es in 1974, because the credit banks on land were

more of a threat to him than the sandbanks at sea. His experience is surprising for, according to the

literal text of his deposition, throughout his 16 years’ activity “[he] never found any fishing vessels

north of parallel15°”. This is no doubt a slip that the drafters of the Counter-Memorial of

Honduras are assiduously correcting. Even so, DonDa niel must have felt very much alone. He

himself tells us that it was not until 1964 that th ree other skippers from other islands in the

archipelago joined him, each with a vessel of his own. That solitude enabled him to make a very

interesting observation that he now shares with us : “when he operated in the area of the cays:

Media Luna, Savanna, Bobel, Serranilla and South they were not occupied by anyone ”. Is this the

statement on which Honduras would like to hear us say a few words?

105
106. In its Rejoinder Honduras returns to the charge, with the FAO fisheries reports which,

it states, “consistently show fishing banks a nd other geographical points located north of

the15thparallel as being treated by relevant or ganizations as falling within the territory or

jurisdiction of Honduras” 106. Nicaragua has analysed these reports in its Reply 10. Honduras

accuses Nicaragua of seeking

“to undermine the FAO reports on the Regional Project of Fishing Development in
Central America... by referring to a different document ⎯ the Final Report on the
Regional Project of Fishing Development in Central America ⎯ which includes a note
43
stating that names employed in the Report do not imply any judgment on the legal or
constitutional situation of any territories or maritime areas” 108.

10RH, paras. 5.31-5.35.
106
RH, para. 5.31.
107
RN, paras. 6.44 et seq., 6.81.
10RH, para. 5.33. - 35 -

Honduras notes that the reports to which it refers contain no such note and that these reports, to

109
which Nicaragua did not object when they were published , treat the cays and maritime areas

north of the 15th parallel as unequivocally Honduran 11.

107. Let us be serious. The reports from whic h Honduras claims to derive the recognition of

its sovereignty north of parallel 15° form part of a Regional Project of Fishing Development in

Central America of the governments of the is thmus, supported by UNDP and executed by FAO

between December 1968 and October 1971, the Final Report of which, with its results, conclusions

111
and recommendations, was da ted Rome, September 1972 . This Project arose in a context of

predominantly small-scale subsistence fishing, with primitive vessels, low productivity and

inadequate management of catches.

108. This simple statement suffices to show that, while such reports might be of great value

for an enhanced geographical, topographical and hy drological knowledge of the region and of the

varieties, quality and volume of its living resources and possibilities of commercial exploitation of

fishing, by their very nature they were not appropriate to serve the objectives claimed by Honduras.

These reports could have no significance for the delimitation of maritime areas between the

riparian States, particularly if account is take n of the note accompanying the Final Report which,

logically, should apply to the partial reports concerning FAO operations in various areas of Central

America, the Caribbean and the Pacific. Nicaragua thus had nothing to object to in a work of that

nature, requested jointly by all the countries of Central America.

109. Furthermore, when the project was execu ted, Honduras had not promulgated legislation

claiming jurisdiction beyond the territorial sea. The FAO Final Report of 1972 concluded with
44
regard to Honduras that, although it had found quit e extensive resources, “unfortunately, the

country has no means of regulating the exploitation of those resources by other countries. Given

the ‘free sea’ system that reigns in Honduras, its resources are extensively and even improperly

109
RH, para. 5.34.
110
RH, para. 5.33.
11FAO, Informe sobre los resultados del Pro yecto. Conclusiones y recomendaciones. Proyecto regional,
FI: DP/RLS/65/030, Rome, 1972 (see judges’ folder, doc. No. 2). - 36 -

112
exploited by foreign vessels” . (Translation by the Registry.) Thus, it was difficult to speak of a

“traditional line” in such an unt raditional area as the exclusive ec onomic zone that Honduras, at

that time, did not yet claim.

110. It should be added that the part of the Project devoted to the presentation of the fisheries

legislation of the countries of Central America and Panama makes not the slightest reference to the

existence of maritime boundaries between them. It is evident that dealing with the sub-zones of the

fishing grounds by areas, through reference to parallels and meridians, had practical value, as did

referring to Honduran waters and Nicaraguan waters in lay terms. The maps contained in the

technical report of the Project contain no political dividing lines 113.

111. If one wishes to engage in a political reading of the reports, one must take into

consideration the general summary of the explorations conducted in the western Caribbean between

December 1968 and June 1970, in which it is stat ed that the hard bed areas of the “extensive

eastern shelf between 15° 00' N and 16° 00' N should be explored with a view to providing more

extensive information on stocks of crayfish in Honduras and Nicaragua” 11.

112. It should also be stressed that in the report on the deep water fisheries explorations

carried out between April and October 1971, th e area rightly called “Great Nicaragua Plateau”

which starts at parallel 15° 15' N is indisputably attributed to Nicaragua 11.

116
113. Although Honduras did not appreciate the fact , Nicaragua pertinently cites ⎯ given

the Honduran manner of reasoning ⎯ the FAO evaluation report on fishing in the Pacific, in which
45

it is affirmed that in that ocean only El Salva dor, Guatemala and Nicaragua had coasts outside the

117
Gulf of Fonseca . Should we have drawn some legal c onclusion from that affirmation? Did

Honduras protest?

112
Ibid., para. 2.6.4 (see judges’ folder, doc. No. 3).
113
FAO, Boletín Técnico del Proyecto, Vol. V, pp. 61 and 64.
11M. Giudicelli and M. Yesaki, “Resumen de las Operaci ones de Pesca Exploratoria del R/V Canopus en el Mar

Caribe occidental (diciembre 1968 a junio 1970)”, Boletín Técnico del Proyecto , Vol.IV, No.5, San Salvador, 1971,
p. 19, para. 7.5; emphasis added.
11M. Giudicelli, Exploraciones pesqueras en el Mar Caribe de Centro américa con énfasis en aguas profundas

(R/V Canopus, abril a octubre de 1971)”, Boletín Técnico del Proyecto, Vol. V, No. 5, San Salvador, 1971, para. 4.2.6.
11RH, para. 5.34.

11RN, para. 6.46. - 37 -

114. If the positions set forth in the partial reports by FAO were not legally irrelevant, the

recognition by the Court of the status of Honduras as a Pacific riparian State would have been

inexplicable, given that the reports of the vessel R/V Sagitario which conducted the exploration in

that area mention only Guatemala, El Salvador a nd Nicaragua as offshore areas of the exploration,

without mentioning Honduras, which is, however, mentioned when the Gulf of Fonseca is referred

to. The figures accompanying the reports draw a single line in the mouth of the Gulf: that

118
separating ElSalvador from Nicaragua . And in the FAO Final Report (September 1972), we

read: “On the Pacific coast, Honduras has limit ed access to the Gulf of Fonseca because the

narrow mouth of the Gulf is controlled by El Salvador and Nicaragua.” (Para. 2.2.1.)

115. Following the same line of argument, and returning for a moment to the oil concessions,

it should be recalled that the concessions grante d by Nicaragua to the Oceanic enterprise

between 1973 and 1977 in the Pacific, started from a point situated in the median of the mouth of

the Gulf of Fonseca, between Punta Cosigüina, in Nicaragua, and Punta Amapala, in

119
El Salvador . Did Honduras protest? Are we to deduce from this that its silence is at the origin of

its acquiescence, a tacit agreement on a traditional lin e in the Pacific? I turn now to the naval

patrols.

H. The naval patrols

120
116. With regard to the naval patrols, to which Honduras reverts in its Rejoinder , we have

already indicated at the appropriate time that th ese patrols took place after the critical date, as the

121
46 Honduran navy was created only in 1976 . Now, Honduras puts before the Court the statement of

another retired naval officer 122 to which Dr.OudeElferink has already referred, who informs us

that he was involved in patrols as early as 1968. Irre spective of the ambiguity of that activity with

118
J.S. Cole and R. Wieme, Results of exploratory fishing in the Pacific Ocean region of Central America by the
R/V Sagitario (December 1967 to December 1968)”, Boletín Técnico del Proyecto , Vol.III, No.4, San Salvador, 1970,
Table of Contents, pp. 7-9, 12 and 13.
119
CMH, Vol.II, Ann.118, pp.364-365, Diagrams of Oil Concessions 1971 and 1974 (Source: Bulletin of the
American Association of Petroleum Ge ologists, Vol.56/9, pp.1653-1654, Se ptember 1972; and 59/10, pp.1806 and
1808, October 1975).
120
RH, paras. 5.54-5.57.
121RN, para. 5.4 (iv), and para. 6.65.

122RH, para. 5.57. - 38 -

regard to its effects on maritime delimitation, it is striking to note that, in order to establish it,

Honduras has to have recourse to a personal testimony and that it cannot provide registers in due

form. Nicaragua was in any case not obliged to ac knowledge these patrols, a fortiori if there were

no arrests or incidents involving units under its flag.

J. Treaties concluded with third States

117. Honduras also mentions as a relevant ci rcumstance treaties concluded with third States

“when they manifest recognition of title to isla nds or maritime spaces and where they serve to

123
confirm the existence of a tacitly agreed boundary” . Given that my colleague Dr. Oude Elferink

has already considered this question with regard to the islands, I do not think I need to dwell on it

further, as what has already been said on this matter is also applicable to maritime areas.

118. But I should like to draw attention to the “lowering of intensity” of Honduras’s

arguments regarding the Colombian delimitation treaties with which it has tried to stifle Nicaragua.

While, in its Counter-Memorial, Honduras strove with pitiable enthusiasm to heighten the

importance of these treaties 124in the “geographical context of the dispute” 125now, in its Rejoinder,

126
it confines itself to referring back to the Counter-Memorial , accusing Nicaragua of ignoring,

through its “blinkered vision” of the circumstances relevant to the case, the critical importance of

“numerous boundary treaties circumscribing the relevant area” 127. But if Nicaragua’s vision is so

blinkered and if such treaties ar e a critical element for the delim itation of the boundary, one must

ask oneself why Honduras does not refute the long, solid and firm response that Nicaragua made to
47

it in its Reply 128. Nicaragua’s “blinkered vision” is backed up by awards such as that of the

Arbitral Tribunal which ruled on the maritime de limitation between Barba dos and Trinidad and

12RH, para. 1.19; see too paras. 2.35, 2.46, 4.42-4.45, 4.64, 5.59, and 5.62-5.70.
124
CMH, paras. 2.13-2.20.
125
CMH, Chap. 2.
12RH, para. 2.6.

12RH, para. 2.9.

12RN, paras. 3.22-3.54. - 39 -

Tobago. Thus, the Award of 11April2006 clearly affirms that treaties such as those on which

Honduras bases itself are indeed important, but important in order to reveal the limitations of the

claims of the parties thereto, and not to limit the claims of third States29.

Conclusion

119. There is no line dividing the maritime areas of Nicaragua and Honduras based on a tacit

agreement or any form of acquiescence or re cognition whatever resulting from long-established

and consistent practice.

120. Honduras has not proved its presence in the disputed area until virtually the last third of

the twentieth century. Only Nicaragua was present in that area until at least 1963.

121. Honduras’s activities in the area between 1963 and 1977 were confined to a few oil

exploration concessions which came to an end 30 years ago, leaving no trace. Those activities

always took the exclusive material form of rela tions between the administration and the companies

to whom the concessions were granted. They never took the form of exchanges, whether

diplomatic or technical, between the administ rations of Nicaragua and Honduras. Nor has

Honduras been able to establish any relation whatever between the boundaries of the oil

exploration areas and the territorial boundaries of Nicaragua and Honduras. In any case, in1974

none of Nicaragua’s concessions closest to those of Honduras had as its northern limit the parallel

corresponding to the point at which the Mixed Commission fixed the terminus of the land boundary

in 1962.

122. Honduras has not proved and cannot prove that, between 1963 and 1977, Nicaragua

conducted itself in such a manner that it is now ob liged to accept parallel 14°59.8'N as the sole

boundary of all its maritime areas with Honduras.

48 123. In 1977, Nicaragua proposed to Honduras the opening of negotiations on the

delimitation of the maritime areas in the Caribbean, a proposal that Honduras accepted

unconditionally.

12Arbitral Tribunal constituted pursuant to Article 87, and in accordance with Annex VII, of the UNCLOS in the
matter of an Arbitration between Barbados and the Republic of Trinidad and Tobag, Award of 11April2006,

paras. 344-349. - 40 -

124. The practice subsequent to 1977 is not relevant, because it does not constitute the

normal continuation of previous activities, but w as undertaken with a view to improving the legal

position of Honduras vis-à-vis Nicaragua.

125. It was only in 1982 that Honduras offici ally declared its claim to a dividing line

established on the parallel on which the terminus of the land boundary was located in1962.

Nicaragua’s objection was immediate, clear and persistent.

126. In the absence of agreement between the Pa rties, the situation has remained unchanged:

that delimitation does not exist, it still does not exis t; and it is for that very reason that Nicaragua

has brought the matter before the Court.

Madam President, Members of the Court, thank you for your very kind attention.

Madam President, may I ask you to call Professor Pe llet to address the Court with the continuation

of Nicaragua’s presentation?

Le PRESIDENT : Merci beaucoup, Monsieur Re miro Brotóns. La Cour appelle maintenant

M. Pellet à la barre.

Mr. PELLET: Thank you very much, Madam President.

T HE ENDPOINTS OF THE DELIMITATION ⎯ DELIMITATION OF THE TERRITORIAL SEA

1. Madam President, Members of the Court, befo re turning to the heart of the matter, it may

be helpful for me to make two points about the oral argument that is to follow and about the end of

the presentation by Nicaragua:

⎯ firstly, so as not to make the Court lose valuable time, we thought it preferable to divide in two

the pleading that I was originally due to make tomorrow in a single statement on the extreme

points for delimitation and the delimitation of the territorial sea, and it was therefore better for

me to make a start today. Having said that, it is a single pleading, and I shall stop at your

49 convenience, Madam President, since otherwise I shall risk going a little beyond the fateful

limit of 1.00 p.m. In any event, I shall only finish it tomorrow morning, and whatever happens,

we do not think that we shall need the whole of tomorrow morning to bring our first round to a

close; - 41 -

⎯ and secondly, Madam President, I am aware of y our concern to accommodate the interpreters,

and I shall try all the more to speak slowly , not only because we have the time, but also

because my Agent’s French still leaves something to be desired, even though we have been

working together for nearly a quarter of a century.

2. Madam President, Mr.Brownlie explaine d on Tuesday which method should be used, in

Nicaragua’s view, to draw the single line of deli mitation between the maritime areas belonging to

Nicaragua on the one hand and Honduras on the othe r. My task is to provide some details

regarding the endpoint and the starting-point of that line, the latter being inextricably linked to the

delimitation of the territorial sea between the two States. And it is with that aspect, the more

complicated one, that I shall begin.

I. The starting-point of the line and delimitation of the territorial sea

3. Madam President, Honduras and Nicaragua bo th have a territorial sea extending for

12nautical miles, calculated from the baselines. Because of the very particular topographical

circumstances of the coast of the two States, fixing the terminus of the land boundary and,

correlatively ⎯ at least in principle ⎯ the starting-point of the maritime delimitation, presents

some difficulty. Only when this problem has been resolved is it possible to determine the course of

the boundary between the two States’ respective territorial seas.

(a)The terminus of the land boundary

4. Although the determination ⎯ it would perhaps be more accurate to talk of the

indetermination ⎯ of the terminus of the land boundary is one of the clearest points of agreement

between the Parties, it is probably not unhelpful to recall how the difficulty arises130.

50 [Start of Slide 1: Arbitral Award of the King of Spain (AP1)]

5. Under the terms of the Arbitral Award made by the King of Spain in 1906:

“The extreme common boundary point on th e coast of the Atlantic will be the
mouth of the River Coco, Segovia or Wanks [these are the three names of the river
which forms the main part of the boundary between the two countries – the extreme

point will therefore be the mouth of this river], where it flows out in the sea close to
Cape Gracias a Dios, taking as the mouth of the river that of its principal arm between
Hara and the Island of San Pío where said Cape is situated, leaving to Honduras the

130
See MN, p. 13, para. 28; CMH, para. 7.41; RN, para. 3.10; RH, para. 1.25. - 42 -

islets and shoals existing within said prin cipal arm before reaching the harbour bar,
and retaining for Nicaragua the southern s hore of the said principal mouth with the
said Island of San Pío, and also the bay and town of Cape Gracias a Dios and the arm

or estuary called Gracias which flows to Gracias a Dios Bay, between the mainland
and said island of San Pío.”

And the Award continued: “Starting from the mout h of the Segovia or Coco, the frontier line will

follow the vaguada or thalweg of this river upstream...”. ( Arbitral Award Made by the King of

Spain on 23December1906, Judgment, I.C.J. Reports 1960 , pp.202-203.) (Arbitral Award of

23 December 1906; translation from the Spanish revised by the Registry of the Court, Judgment of

18 November 1960.)

6. On the face of it, things are clear, and, as counsel for Honduras constantly repeated in their

oral arguments concerning the Award made by the King of Spain:

“The Court will note the clarity and lucidity of these paragraphs” 131; “these
132
operative parts of the Award are a model of clarity” ; “there is no obscurity, gap or
contradiction in the Award of the King of Spain which renders it incapable of
execution at this point” 13; or again “the Award is absolutely clear on this point” 13.

And indeed, as the Court found in its Judgment of 18 November 1960 in that case: “in this context

the thalweg was contemplated in the Award as constituting the boundary between the two States

even at the ‘mouth of the river’. In the opinion of the Court, the determination of the boundary in

this section should give rise to no difficulty.” (Ibid., I.C.J. Reports 1960, p. 216.)

[End of Slide 1]

7. This prediction, Madam President, nevert heless proved somewhat optimistic. In fact,

51 determining the starting-point of the land boundary between the two States on the Atlantic Ocean

has raised some difficult problems ⎯ not for legal reasons (from the point of view of law, the

indications provided in the Award of 1906 are sufficient), but for practical and topographical ones.

When it came, in practice, to locating this point on the ground and marking it on a map –– moving,

in a sense, from delimiting to demarcation ⎯ it was realized that things were less simple than they

131
Oral argument of Mr. Briggs (Honduras), 23 September 1960, Pleadings, Oral Arguments, Documents ⎯ case
concerning the Arbitral Award Made by the King of Spain on 23 December 1906, p. 202.
132
Ibid., p. 203.
13Ibid., 24 September 1960, p. 204.

13Reply by Mr. Guggenheim, 7 October 1960, ibid., p. 422; see also the RH, 3 August 1959, ibid., pp. 537-540,
paras. 124-129. - 43 -

might have appeared. Between 1906 and 1961-1962, when the Mixed Commission set up under

the auspices of the Inter-American Peace Committee attempted to give substance to this concept,

the configuration of the mouth of the River Coco itself had changed considerably:

“[I]t is noted that the topography of this area has undergone constant changes

throughout the years, some caused by th e closing of secondary channels and the
appearance of new ones, while others resulted when part of the Gracias a Dios Bay
filled up and Sunbeam Bay appeared. In genera l, it has been noted that in this region

of the mouth of the Coco River, the land h as been advancing toward the sea. On the
British map [prepared by the British Navy fo r the area of Cape Gracias a Dios], there
are various notes that indicate topographical changes in the years 1883, 1886 and

1912. The numerous changes in the topography of the region through the years can be
seen very clearly in the aerial photographs taken.” 135

And this is very striking if one looks at the ma p based on aerial photographs, which is included in

the judges’ folder as item 2.1 and which the Boundary Commission used as its basis.

[Slide 2: Joint Boundary Commission: terminus of the land boundary (AP 2.3)]

8. It is important to make one point clear: although it notes these changes in the topography

of the region, the Mixed Commission quite rightly does not stop there. It fixes the terminus of the

land boundary on the basis of the indications provided in the Award of 1906, but in terms of the

situation obtaining at the time it made its decision, i.e. in 1961-1962. I shall return to this in a

moment.

9. The geographical co-ordinates of this terminus are as follows:

⎯ in longitude: 83° 08.9' (8 minutes and nine tenths, i.e. in seconds, 83° 08' 54") west;

52 ⎯ in latitude: 14° 59.8' (59 minutes and eight tenths, i.e. 14° 59' 48") north.

10. These are very precise co-ordinates, and the Mixed Commission pointed out that they

136
were established “hasta el décimo de minuto” ⎯ “to the tenth of a minute”. I am referring to the

original Spanish text, even thoug h Spanish is not an official language of the Court, because the

English translation, carried out by the OAS, is erroneous: “décimo de minuto” was rendered by the

translators ⎯ who must have forgotten their geography lessons ⎯ as “to the second” 13. Now, as

13Report of the Inter-American Peace Committee to the Council of the Or ganization of American States on the

Termination of the Activities the Honduras-Nicaragua Mixed Commission , 16 July 1963, App.3, Report of the
Honduran-Nicaraguan Joint Boundary Commission on the Studie s Made at the Mouth of the Coco, Segovia or Wanks
River, 14 July 1962, MN, Vol. II, Ann. 1, p. 22 (Ann., p. 28).
13See MN, p. 77, note 82; see the original Spanish text filed in the Registry of the Court with the Memorial and

reproduced in the judges’ folders (item 2.2).
13Ibid. - 44 -

we know (when we have been good pupils in our geography classes and not forgotten

everything ⎯ but I confess that this did not apply to me, and that I had to refresh my memory to

appreciate these subtleties), a second is not a tenth, but a sixtieth of a minute. So the intersection of

the thalweg and the line representing the mouth of th e Coco River is indeed situated at latitude

14° 59' 48"north, corresponding to 14°59.8', and not at 14°59'08", as the English translation of

the report of the Mixed Commission wrongly indicated 13. The difference is a little over 1 km.

11. In any event, the Honduran authorities, w hose official language is nevertheless Spanish,

not English, have relied on this translation e rror in numerous circumstances to claim a maritime

boundary following latitude 14° 59' 08" north, a pa rallel which Honduras has also used to establish

the boundary of its maritime areas with Colombia in the (invalid) treaty concluded between those

139
States on 2 August 1986 . However, Nicaragua has noted that, in its written pleadings relating to

the present case, Honduras appears to have stopped relying on the erroneous English transposition

of the Mixed Commission’s report of 1962; not without some twists and turns, after

140
acknowledging the mistake in translation , Honduras states that “as regards Nicaragua, the

Honduran claim is that the traditional boundary lies at latitude 14 degrees 59.8' 00"” 141. Of course,

the two Parties disagree on the relevance of th is parallel for establishing their whole maritime

boundary; but as regards determining the termi nus of the land boundary as it was fixed in1962,
53

they are in agreement ⎯ duly noted.

[End of Slide 2]

(b)The starting-point of the maritime delimitation by the Court

12. Their agreement also goes further in this r espect. Both take the view that the instability

of the mouth of the river demands particular caution in fixing the starting-point of the maritime

boundary which the Court has been requested to establish. And both consider that this point is not

necessarily bound to coincide with the terminus of the land boundary or, more precisely, that some

degree of flexibility needs to be maintained between the two.

13Ibid., p. 26 (Ann., p. 20).
139
See MN, pp. 79-80, paras. 11-12.
140
CMH, p. 26, para. 2.27.
14Ibid., p. 27, para. 2.28; see also RH, p. 1, para. 1.03, or p. 12, para. 2.3. - 45 -

13. The Parties agree that it would probably be preferable to use a method whereby ⎯ and I

am borrowing this expression from the Honduran Rejoinder ⎯ “the maritime boundary need not

142 143
change as the mouth of the river changes” . In this respect, Honduras seems to have come

144
round to the suggestion made by Ni caragua, which, in its Memorial , proposed drawing on the

example of the Treaty concluded on 23Novemb er1970 between the United States and Mexico,

Article V (a) of which provides that, to neutralize the effects of fluctuations at the mouth of the Rio

Bravo del Norte or Rio Grande, “the internationa l maritime boundary in the Gulf of Mexico shall

begin at the centre of the mouth of the Rio Grande, wherever it may be located; from there it shall

run in a straight line to a fixed point. ..”. It is this method, also used in other treaties and in the

Arbitral Award of 1985 in the case concerning Delimitation of the Maritime boundary between

145
Guinea and Guinea-Bissau , that the two Parties have therefore agreed to ask the Court to apply

in the present case.

54 14. The idea would therefore be, Madam Pres ident and Members of the Court, that in

carrying out the maritime delimitation which Ni caragua has asked you to perform, in its

Application and in the submissions of its written pleadings, you do not start from the terminus of

the land boundary, but that you make the delimita tion of the single line begin from a “neutral”

point, situated off the coast and chosen so as to ensure the stab ility of the maritime boundary for a

very long period. Moreover, the two Parties have, in their written pleadings, undertaken to

negotiate an ad hoc solution applicable to the maritime ar ea immediately adjacent to the mouth of

146
the Coco, to take account of its rapidly changing nature . Nicaragua will not go back on that

147
proposal if the Court adopts it. However, as Ambassador Argüello indicated on Monday , for

reasons which I shall return to in a few moments, we are wondering if, on reflection, this is not an

142RH, p. 126, para. 8.02. See also MN, p. 82, para . 22; CMH, p. 136, para. 7.13; RN, pp. 196-197,
paras. 10.5-10.6.
143
See RH, p. 126, para. 8.03. See also CMH, p. 137, para. 7.14.
144
MN, pp. 83-84, para. 25.
145See MN, pp. 83-85, paras. 24-28.

146See MN, pp. 85-86, para. 30, and RH, p. 8, para. 1.25, or p. 127, para. 8.06; see also the conclusions of
Honduras, p. 135.

147CR 2007/1, 5 March 2007, p. 102, para. 46 (Argüello). - 46 -

unduly complicated solution, and we believe that a simpler answer, in the same spirit, could be

found to the challenge of the vagaries of the Co co River, without having to leave the matter to

negotiations between the Parties, with their still uncertain outcome.

[Slide 3: Changes in the mouth of the Coco River (AP 3)]

15. Moreover, while the Parties are in agreem ent in suggesting a method that is likely to

make it possible to “neutralize” the rapid changes at the mouth of the river, they do not agree when

it comes to putting this into effect. Their disagreement begins with the analysis of the changes that

have taken place since 1962.

16. The fact is that the mouth of the Coco River changes very rapidly. But in which

direction?

17. Honduras states with some insistence that “these . . . changes have continued, moving the

mouth eastwards” 148. This is a very “skewed” presentation and, in reality, rather poorly skewed. If

one looks at the satellite photographs which th e two Parties have annexed to their written

pleadings 149, it is clear that the mouth has moved not due east, but in fact east-north-east and even,
55

in recent times, simply north-east: this is show n by the angle formed between due east, indicated

by the red arrow on the sketch now being project ed behind me, and the prolongation of the river

bed. Today, subject to corrections or qualifica tions that might be provided by further soundings

(since we have used only satellite photos to calculate the centre of the mouth), the co-ordinates of

the intersection of the thalweg of the Coco with the line closing its mouth are 15°00'11" of

latitude north and 83°07'54" of longitude west, and this point is situated one nautical mile ⎯ a

little under 2 km ⎯ east-north-east of that fixed by the Mixed Commission in 1962.

18. It is this point alone which corresponds to the starting-point of the land boundary towards

the west ⎯ and consequently of the maritime boundary towards the east ⎯ as determined by the

Arbitral Award of 1906. Indeed, the King of Spain established the starting-point of the land

boundary not at a fixed and immutable place, but at the mouth of the river Segovia or Coco where

it flows into the sea and, as I have said, in its Judgment of 1960, the Court clearly indicated that

148
CMH, p. 136, para. 7.12; see also p. 144, para.39 or RH, p. 109, paras. 6.07 or 6.09, or pp. 125-126,
para. 8.02.
149
MN, figure VII; CMH, plate 19; RH, plate 46. - 47 -

“the thalweg... constitut[ed] the boundary between the two States even at the ‘mouth of the

river’”. As the mouth of the river moves, so th e starting-point of the land boundary towards the

west, and of the maritime boundary towards the east, moves as well, along the thalweg, and today

that point is situated at latitude 15° 00' 11" north and longitude 83° 07' 54" west.

19. As Nicaragua has shown in convincing detail in its Reply 15, it is well established that

river boundaries between States follow movements in the course of the river on which they are

fixed, and that riparian States (like coastal States on the sea) benefit from any accretions that may

be formed on the banks belonging to them. It is telling that, in its Rejoinder, Honduras has been

careful not to criticize these conclusions, from which it nonetheless declines to draw any

consequences.

20. So it is quite clear that if the Court be gan the maritime delimitation which it has been

asked to perform not from the point currently situated at the intersection of the thalweg of the Coco

River and the line of its m outh on the Atlantic Ocean ⎯ that point is marked with a cross on the

56 sketch projected behind me ⎯ but from the point used by the Mixed Commission

in 1962 ⎯marked with a small red circle ⎯ it would be performing not a maritime delimitation,

but a land (or river) delimitation. At the same ti me, Nicaragua would be deprived of the territory

reclaimed naturally from the sea by means of accr etion, and the boundary fixed by the Award

of1906 would be called into question ⎯ without the slightest legal basis existing for that to

happen.

[End of Slide 3; Slide 4: Delimitation at the mouth of the Coco River (AP 4)]

21. However, that is what Honduras seemed to be requesting when, in its Counter-Memorial,

it asked the Court to distinguish three sectors of maritime delimitation, the first being:

“[a] straight and horizontal line following the thalweg of the River Coco from the

point identified in 1962 by the Honduras/ Nicaragua Mixed Commission to the current
mouth, where it reaches the sea as agreed by the two Parties”, and the second “[a]
continuation of this line through territori al waters, from the current mouth to the
151
12-mile limit at a point where it intersects the parallel of 14 degrees 59.8 minutes” .

150
RN, pp. 203-206, paras. 10.23-10.30.
151
CMH, p. 145, para. 7.41. - 48 -

Apart from being particularly confusing ⎯ since here Honduras seems to be switching between the

mouth from 1962 and the present mouth ⎯ there are numerous objections to this approach, which

is illustrated by the sketch now being projected behind me.

22. As regards the first alleged “sector”, the very idea of a “straight and horizontal line

following the thalweg” is completely absurd: th e thalweg of a river simply cannot follow this

command; nature is more temperamental than Honduras would have it. It is one thing or the other,

Madam President: either the Award of 1906 is disregarded; or it is respected ⎯ there is no middle

way.

23. Honduras, whatever it may say, is in favour of the first option, since it is asking the

Court, regardless of the Award of 1906, to draw a straight and horizontal line from the point fixed

in 1962, leaving Nicaragua deprived of the la nd it has acquired from the deposits of the Coco

River, which is totally unacceptable ⎯ but that is the solution adhered to by Honduras, which

reaffirms in paragraph 8.05 of its Rejoinder, without troubling to refute the arguments contained in

the Reply, that “in the view of Honduras, the seaward fixed point should be established precisely

57
three nautical miles due east of 14°59.8'N. la titude, 83°08.9'W. longitude”. Why from that

point? Why “due east”? It is true that, in th e same Rejoinder, Honduras says it has abandoned this

three-sector approach 15, but in fact the only effect of this is that it is even harder to explain by what

mysterious means the “15th parallel” is arrived at from the mouth of the river ⎯ the real mouth.

Nowhere is this explained, and this ignoring of the actual finishing-point of the land boundary is

certainly not in accordance with the principl e which Honduras says it endorses, whereby “[t]he

boundary to be determined by the Court should be enduring, whilst respecting both the 1906 Award

153
and the 1962 Agreement” .

24. If, on the other hand, one actually remains faithful to the letter and the spirit of the 1906

Award as it was interpreted by the Judgment of the Court and implemented in due course by the

Agreement of 1962, then it is the real and present endpoint of the land boundary that must be taken

into account. This is the only solution that is legally possible and can reasonably be envisaged:

any maritime delimitation has to begin where the land boundary ends; and that point can only be

152
RH, pp. 127-128, note 8.
153
CMH, pp. 136-137, para. 7.13 (our italics). - 49 -

where the thalweg of the Coco River meets the (imaginary) line which closes the mouth of the

river. At present, to repeat, its co-ordin ates are, on the basis of a reasonably accurate ⎯ but not

necessarily definitive ⎯ assessment, 15°00'11" of latitude north and 83°07'54" of longitude

west.

[End of Slide 4]

25. In normal circumstances, it is from this point that the maritime boundary should be

delimited. However, it must be borne in mind that this could well be only a temporary or

provisional delimitation, since there is every lik elihood that the mouth of the Coco River will

continue its advance towards the sea (and probably in a north-easterly direction or, at any rate,

east-north-east) at the rapid pace which it has maintained since the region was mapped 154: as soon

58 as this endpoint of the land boundary (and starti ng-point of the maritime delimitation) has been

fixed, it will be out of date, which may well be undesirable for a number of reasons, not least in my

view the “geo-judicial” history of the boundary between the two countries.

26. The two Parties are aware of this, and that is why they have suggested that the Court

might only begin the delimitation of the maritime boundary between them from a point situated off

the mouth of the Coco River, chosen so as to neutra lize the fluctuations of its mouth. That is one

possibility, and again Nicaragua does not seek to ch allenge it. However, as I have said, this

solution is not without its drawbacks:

⎯ firstly, it is inevitable that, sooner or later, th is solution will in a sense be “overtaken by the

alluviation of the river mouth”, which is advancing towards the sea at an average rate of around

one nautical mile ⎯ almost 2 km ⎯ per century, which is huge 155;

⎯ secondly, it is a complicated solu tion, whereas the same result can be achieved differently by

simple and sustainable means;

⎯ thirdly, and in any event, the Parties disag ree on how to implement the method which they

have advocated in their written pleadings.

154
MN, pp. 81-82, paras. 18-20; CMH, p. 119, para. 7.12; RN, pp. 29-30, para. 3.10; RH, p. 108, para. 6.05, or
pp. 108-109, para. 6.07.
155
See MN, p. 11, para. 19, or p. 158, para. 23. - 50 -

27. Honduras, which is very concerned to have us believe that the single line it is proposing

is perfectly consistent with the Arbitral Award ma de by the King of Spain in 1906, is clinging to

the starting-point of the land boundary fixed by the Mixed Commission in 1962. We have seen,

Madam President, that this position is untenable: it is incompatible with the Award, and it is not

possible to begin a maritime delimitation from a point that is situ ated not on the Parties’ coast, but

within their landmass. The only option that is both logical a nd legally defensible is to start from

the present mouth of the river. It is also not without significance that, when it fixed the

co-ordinates of the starting-point of the land boundary in 1962, the Mixed Commission did not try

to find out what the situation had been in 1906 ⎯ which was cartographically possible ⎯ but took

as its basis the situation obtaining on the groun d in 1962. I do not see how the Court could do

otherwise: it is bound to note that the boundary has moved east-north-east, and that the point

from 1962 is now included within the land boundary between the two States.

59 28. To neutralize the fluctuations at the mouth of the river, Nicaragua proposed in its

Memorial that the starting-point of the maritime boundary between the Parties should be fixed at a

point situated three nautical miles seaward of th e present mouth, on the bisector line. This line

corresponds to the approximate equidistance line, or median, between the coasts of the two

156
Parties . Honduras was initially opposed to this su ggestion as regards both the distance of this

point from the coast and where it should be located.

[Slide 5: Argument of Honduras (AP 5)]

29. On this second point, it is clearly not surprising that there is a difference between the

Parties. Nicaragua’s suggestion is in keeping with its fundamental position whereby the bisector

forms the single line of delimitation, a position whose validity has been demonstrated by my friend

and colleague Ian Brownlie. Honduras, for its part , continues to maintain that this line has to

follow what it calls “the 15th parallel”, in other wo rds the parallel of latitude 14° 59' 48" north. I

do not think it would be helpful to go back ove r the general reasons why this argument is

156
See MN, p. 83, para. 23 and p. 160, para. 29, and RN, p. 197, para. 10.5. - 51 -

unacceptable ⎯ my colleagues have explained these at so me length. On the other hand, I would

like to emphasize, Madam President, the very strange nature of the Honduran position as regards in

particular the part of the line that is situated near the coast.

30. The sketch now being projected behind me, and which is included as item 5 in the

judges’ folders, illustrates this strangeness:

⎯ the starting-point of the maritime boundary (which, it must be repeated, necessarily coincides

with the endpoint of the land boundary) is situ ated nearly one mile north-east of latitude

14° 59' 48" north 157; it is marked with a yellow cross (x) on the sketch;

⎯ if the Honduran argument were to be followed, it would immediately be necessary to turn the

boundary line southwards, for no obvious reason (thi s is the segment x-b of the line, marked in

red on the sketch); and

60 ⎯ this would have the effect of hemming in ⎯ and indeed cutting off ⎯ the Nicaraguan territory

reclaimed from the sea by means of accretion; fu rthermore, this territory is crossed by the x-b

line in question, which amounts to asking the Cour t to carry out what is implicitly a new (and

unacceptable) land delimitation.

31. No doubt, in that event, Honduras would be careful not to formally ask the Court to take

such action for the section a-b; but acceptance of the Honduran position would necessarily lead to

that kind of situation.

[End of Slide 5; Slide 6: Proposal of Nicaragua (AP 6)]

32. A mere glance at the new sketch now being projected behind me (which is item 6 in the

judges’ folder) is enough to see that Nicaragua’s position does not involve these drawbacks. The

segment x-B, marked in green on this sketch, re presents the extension of the mouth of the Coco

River; it corresponds both to the bisector and th e configuration of the Nicaraguan Rise, without

differing notably from the result that would have been produced by the equidistance method; and it

avoids any encroachment of the area belonging to one of the Parties on the natural extension of the

other.

157
RN, p. 196, para. 10.4. - 52 -

33. While it is accepted that the point of “n eutralization” (B on the sketch) must lie

somewhere on the bisector, the question remains of how far this point is to be placed from the

present mouth of the Coco River. As I pointed out a moment ago, Nicaragua indicated in its

Memorial that the distance of three nautical miles was a reasonably prudent one, and it repeated

158
this proposal in its Reply . After suggesting that the Cour t should refrain from performing a

delimitation to the outer limit of the territorial sea, i.e. 12 nautical miles from the mouth where it

159
actually is or from where it existed in 1962 ⎯ given the wording used by Honduras, this is not

160
clear ⎯ which Nicaragua had in any event deemed excessive , Honduras seems, in its Rejoinder,

to have come round to the distance of three miles. In paragraph 1.25 of its Rejoinder, it writes:

61 “Honduras, seeking to minimise the poin ts of difference with Nicaragua, can
accept a starting point for the Court’s line at 3 miles from the terminal point adopted

in 1962, rather than 12 miles from the coast , as proposed in its Counter-Memorial, but
not premised on the bisector method, which is contrary to principle.” 161

34. Unfortunately, despite the excellent attit ude thus announced, this “acceptance” is largely

a matter of appearance. Three miles to be sure. But on the 15th parallel ⎯ which is clearly not

acceptable ⎯ I will not go back to that for the momen t; above all, however, three miles from the

terminus of the land boundary of 1962, in other words from a point located in the river territory of

the two States and in no sense on their coast; and th is with all the drawbacks to which I have just

drawn attention. So there is no agreement between the Parties on this point.

[End of Slide 6]

35. Madam President, Nicaragua does not intend to go back on the suggestion it has made to

neutralize part of the maritime area immediately adjacent to the Parties’ coasts, whereby it would

be possible for the Court only to start the delimit ation requested from a distance of three nautical

miles from the mouth of the Coco River. Since the Parties agree on the idea that the “neutralization

point” must be fixed three nautical miles from the endpoint of the land boundary, the Court might

158Ibid. or RN, p. 200, paras. 10.16 and 10.17.
159
See CMH, p. 145, para. 7.41; see also p. 137, para. 7.14.
160See RN, p. 8, para. 1.14 (a).

161RH, p. 8, para. 1.25. - 53 -

confine itself to taking note of their agreement on this point ⎯ of course with one important

caveat: the starting-point of this line can clearly only be the present endpoint of the land boundary,

and not the totally obsolete one from 1962.

36. In its written pleadings, Nicaragua had s uggested that the Court leave open the question

of the exact course of the boundary between the mouth of the Coco and the neutralization point

fixed in this way, with that delimitation bei ng referred to subsequent negotiation between the

162
Parties . However, on carefully re-examining the situation during preparation for these oral

arguments, it seemed to us, as I said just now, th at the concerns which lay behind this proposal

could be answered in a simpler and possibly more effective way ⎯ and without altering it

radically.

62 37. This alternative suggesti on consists of asking you, Madam President, Members of the

Court, to fix the starting-point of the maritime delimitation not on the basis of precise geographical

co-ordinates, but according to the very formula used in the Award made by the King of Spain in

1906 and confirmed by the Judgment of 1960. In othe r words, instead of finding that the maritime

boundary between Honduras and Nicaragua begins, fo r example, at co-ordinates 15° 00'11" north

and 83°07'54"west, your judgment might simply state: “From the mouth of the Coco River

where it reaches the sea...” or “From the terminus of the land boundary resulting from the

Arbitral Award made by the King of Spain on 23December1906, the boundary of the areas

belonging respectively to the Republic of Honduras and the Republic of Nicaragua shall take the

following course...”. It would then suffice to indicate the point on the bisector line which is

currently three nautical miles away from the mouth of the river.

38. There is no doubt that this would have the following results:

⎯ firstly, the maritime boundary would start from the endpoint of the land boundary between the

two States, as fixed by the Arbitral Award of 1906; and

⎯ secondly, this boundary would take the form of a straight line, adjustable according to the

fluctuations of the mouth of the river.

162
MN, p. 83, para. 23 and p. 85, para. 30; RN, p. 197, para. 10.5. - 54 -

In Nicaragua’s view, such an approach would have major advantages and hardly any drawbacks.

Madam President, I believe it is one o’clock. I have about 15 minutes more. Would you like

me to stop here, or go on with this first part now? In any event, I shall be continuing tomorrow.

Le PRESIDENT: Oui. Merci Monsieur Pellet. S’il vous faut encore 15minutes, je crois

que nous allons lever l’audience et entendre demain matin la fin de cet exposé, ainsi que le reste de

votre plaidoirie. Merci beaucoup.

L’audience est levée.

L’audience est levée à 13 h 5.

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