Traduction

Non-Corrigé Traduction

Uncorrected Translation

NH

CR 2007/8 (traduction)

CR 2007/8 (translation)

Mercredi 14 mars 2007 à 10 heures

Wednesday 14 March 2007 at 10 a.m. - 2 -

10 Le PRESIDENT : Veuillez vous asseoir. M. Piernas, veuillez poursuivre.

Mr. JIMÉNEZ PIERNAS: Thank you, Madam President.

1. Madam President, Members of the Court, in the closing minutes of my presentation

yesterday morning, I concentrated on the emergence of the dispute over the maritime boundary

between Nicaragua and Honduras following the firs t capture of a Honduran fishing boat by the

Sandinista navy in 1979. I will conclude my presentation today by discussing the technical

problem of determining the critical dates in the present case, as well as the lack of effect of

Nicaragua’s stratagems of conduct.

2. The hidden intent behind the campaign of harassment targeting Honduran fishing boats

was to make up for the time lost since 1821, to seize again the historic opportunities lost over a

century and a half and to bring the Caribbean well and truly into the new régime’s sights. How was

this intention to be put into practice? By breaking with the principle of the stability and

permanence of the maritime boundaries with neighbouring States (Colombia and Honduras),

despite the fact that they were well established explicitly or by tacit approval. Since Nicaragua had

1
even dared to dispute its maritime boundary with Colombia, delimited by a formal agreement , its

maritime boundary with Honduras, the delimitation of which was (as I have explained) informal,

could hardly hope for a kinder fate.

3. The victory of the Sandinista revolution radically transformed Nicaragua’s maritime

policy, which swept aside the order prevailing before 1979, not just with respect to Honduras but to

Colombia as well, as was also shown when the revo lutionary government unilaterally declared the

1928 Treaty null and void on 4 February 1980 2. However, even at that point, the dispute fabricated

by Nicaragua on the spur of the moment was basically limited to a proposal for an ex novo

delimitation between the two neighbouring adj acent States of the new maritime areas resulting

from developments in the law of the sea. And nothing more.

1
The principle of the stabi lity and permanence of boundari es, especially those delim ited by treaty, is well
established: Art.62, para.2, of the Vienna Conventionthe Law of Treaties provides that a fundamental change of
circumstance may not be invoked as a ground for terminating a treaty establishing a boundary.
2CMH, Vol. I, pp. 41-42, paras. 3.25-3.27. - 3 -

11 4. Thus, from the 1980s everything pointed to a dispute over maritime boundaries, but not

about sovereignty over the islands; the dispute w as managed strategically by the Sandinista Party

by the capture of Honduran fishermen in an area cl ose to the 15thparallel. With regard to those

acts, from 1979 to 1994, that is to say for 15 years, Nicaragua’s claims were made through

diplomatic channels a nd couched in very imprecise and va gue terms limited to contesting the

15th parallel as the maritime boundary, but with no men tion of the islands at all. Furthermore, no

document suggested that the dispute fabricated by Nicaragua in 1979 was to be as ambitious and

3
extensive in its geographical scope as is the case today.

5. Not until 12December1994 did Nicaragua’s Minister for Foreign Affairs venture, in a

Note addressed to his Honduran counterpart, to cl aim for the first time that “Nicaragua has always

executed jurisdictional acts in those maritime areas, up to parallel 17”; that Note elicited a strong,

unequivocal protest from Honduras ag ainst such a fanciful claim 4. Nicaragua’s Agent

5
acknowledged this at the beginning of the oral phase . And I emphasize once again: the

precedents constituted by the decisions of 1906 and 1960 and the 1928 Treaty with Colombia did

not exactly support such claims. But the escalati on of Nicaragua’s wild and implausible claims

against Honduras in the Caribbean Sea culminated in 2001 in the submission of its Memorial to the

Court, for the first time laying claim to sovere ignty over all the islands north of the 15thparallel

6
and up to the 17thparallel ; whereas Nicaragua’s Application of 8December1999 had made

absolutely no mention of the islands 7. Nicaragua’s Agent also ac knowledged this fact at the

8
beginning of the oral phase .

6. Nicaragua, which had overlooked the releva nce of the Honduran cays to the maritime

delimitation between the two States, to the extent that no account was taken of them in the bisector

9
12 line it proposed to the Court , finally cut the Gordian Knot of their troublesome presence north of

3CMH, Vol. 1, p. 52, para. 3.49; see MN, Vol. 2, Anns. 65-66 and 73, pp. 152-155 and 169-171.

4CMH, Vol. 1, pp. 52-53, para. 3.50 (quote); see MN, Vol. 2, Ann. 49, pp. 116-117.

5CR 2007/1, para. 50 (Argüello Gómez).
6
MN, Vol. I, p. 166.
7
See Nicaragua’s Application of 8 December 1999, para. 6.
8CR 2007/1, paras. 69-70 (Argüello Gómez).

9CR 2007/1, paras. 49-50 (Elferink); CR 2007/2, paras. 148-177 and 188 (Brownlie). - 4 -

the 15th parallel. How? By assuming sovereignty over them in order surreptitiously to transform a

dispute over maritime delimitation into one about attribution of sovereignty.

7. With its outrageous claims in 1994 and 2001, Nicaragua reverted once again (albeit a

century later) to the position it had held prior to th e Arbitral Award of 1906, when in its arguments

presented to the King of Spain it (unsuccessfully) claimed sovereignty over all the land and sea as

10
far as the Swan Islands, beyond the 17th parallel . How many more times will Honduras have to

appear before this Court to get Nicaragua to accep t once and for all (and no longer just nominally)

the consequences of the 1906 and 1960 decisions and of its subsequent conduct until 1979?

8. But this question also raises a technical probl em, relating to the critical date of the dispute

over the islands. Honduras has rejected 1977 as the criti cal date for the maritime dispute. In view

of all that has been said on the diplomatic hist ory of the dispute, however, numerous doubts persist

as to the critical date of the dispute concer ning sovereignty over the islands north of the

15thparallel. Until 2001, when it filed its Memo rial in the current case, Nicaragua had not

11
formally claimed sovereignty over those islands . It is of course for the Court to consider and

weigh up those facts.

T HE LACK OF EFFECT OF N ICARAGUA ’S STRATAGEMS OF CONDUCT ON THE CONSOLIDATED
LEGAL SITUATION OF THE TERRITORIES AND MARITIME AREAS

9. Madam President, Members of the Court, with respect to the lack of legal effect of

Nicaragua’s stratagems of conduct, I must first r ecall that international jurisprudence has in its

ratio decidendi drawn on the notion of the “behaviour” or “reciprocal conduct” of the Parties in

relation to the effectivités and uti possidetis. This notion refers to a whole series of complex acts

and reactions (positive or negative) by the Parties with respect to a specifi c territorial situation,

from which ensues, in the final analysis, the ex istence of implicit consent to accept that the

situation is legally opposable to them and has gi ven rise to territorial rights and obligations. The

13 concept of States’ “behaviour” or “reciprocal conduct” is closely linked to those of acquiescence,

recognition and estoppel and even to the principle of good faith ( Temple of Preah Vihear

(Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, pp. 14, 23 and 32-33).

10
CR 2007/7, footnote 66 (Jiménez Piernas).
11See above para. 5. - 5 -

10. Since 1979, Nicaragua has resorted to a whole range of acts well known in international

law in an attempt to establish a new situation at odds with the delimitation of maritime areas with

Honduras following the traditional line of the 15thparallel: ad hoc internal rules, tailor-made

cartography , the provocation of incidents (such as the capture of fishing boats and arrest of

13
Honduran fishermen north of the 15th parallel) , notes of protest, repeated insertion of references

to its new position in the minutes of mixed commissions established for other purposes, as well as

14
other paper claims . But that whole strategy remains nothing but a series of stratagems in the eyes

of the law. Nicaragua has not managed to present to the Court, either during the written pleadings

or during the oral phase, an y evidence of occupation or effectivité north of the 15thparallel either

before or after 1979. Nicaragua has never occupied or exercised peaceful, lawful control over the

waters and islands north of the 15thparallel, d espite its acts of harassment of Honduran fishing

boats and fishermen, especially since 1982, which have always been the subject of vigorous

protests by Honduras 15.

11. Those stratagems of conduct, including the protests, are aimed at impeding the continuity

of the peaceful and sustained exercise by Hon duras of its authority over the maritime areas

delimited north of the 15thparallel. Those stra tagems also seek to prevent the opposability of

Honduras’s valid and in all respects definitive title. But none of this can fulfil the condition

imposed by international law for such conduct to succeed: the immediacy and repeated nature of

16
the reaction to the emergence of a de facto or de jure situation .

14 12. In a territorial dispute, the acts, reactions, silence or lack of response relative to a given

subject are not neutral in law. The attitude and behaviour of the parties can be decisive for the

settlement of a dispute of this type. Beyond the role and importance commanded by legal titles and

effectivités in each case, evidence or otherwise of the implicit or tacit consent of one of the parties

can be inferred from the reciprocal conduct of th e parties concerned. This notion was used and

1See CR 2007/7, paras. 18-19 (Jiménez Piernas).
13
CMH, Vol. 1, pp. 47-48, paras. 3.37-3.39, p. 51, para. 3.47 and p. 54, para. 3.53.
14
CMH, Vol. 1, pp. 53-54, paras. 3.51 and 3.53.
1CMH, Vol. 1, p. 40, para. 3.24, p. 55, para. 3.55.

1See United Nations, Report of the International Law Commissi on, Fifty-sixth Session, Supplement No.10
(A/59/10), p. 224, paras. 206-207 (Chap. VIII, Unilateral Acts of States, Seventh Report of the Special Rapporteur). - 6 -

expanded upon by the 1992 Judgment in the case already cited concerning the Land, Island and

Maritime Frontier Dispute (ElSalvado r/Honduras: Nicaragua intervening) , precisely against

Honduras (Judgment, I.C.J. Reports 1992, pp. 577 and 579, paras. 364 and 367-368).

13. Thus, the evidence submitted by Honduras sh ows that Nicaragua’s reaction came very

late. Its silence and acquiescence throughout the pe riod of diplomatic history that I have just

covered are a good illustration of that. When Ni caragua reacted for the first time in 1979, when

Sandinista harassment was stepped up in the maritime areas north of the 15th parallel in 1982 when

the United Nations Convention on the Law of the Sea was signed, Nicaragua was not acting against

Honduras alone, but also against its own actions, ag ainst the conduct it had adopted for a very long

time with respect to the maritime areas and islands which it now claims. Consequently, in 1979,

and still more so in 2001 when Nicaragua clai med the Honduran cays for the first time, it

surprisingly adopted conduct in contradiction to what it had previously done and tacitly

acknowledged; in short, it acted against all its previous conduct. The precise legal characterization

of such conduct, which is based on adopting a position now expressly contradicting everything

which was tacitly acknowledged in the past, is of litt le consequence. It can only be concluded that

Nicaragua has withdrawn the consent it previously gave to the traditional boundary with Honduras

along the 15th parallel. That withdrawal is contra ry to the principle of good faith and the principle

of the stability of boundaries.

14. To summarize, in order to settle this dis pute, the Court cannot disregard the reciprocal

relations of the contending Parties regarding th e existence of the traditional maritime boundary of

the 15th parallel. That reciprocal conduct constitu tes ample evidence of Nicaragua’s tacit consent.

The diplomatic history of the dispute endorses Honduras’s position in this regard. It is clear that

that boundary exists in accordance with international law.

15 15. Madam President, Members of the Court, I would like to express my gratitude for your

kind attention. Madam President, would you be so kind as to give the floor to my colleague,

Professor Jean-Pierre Quéneudec? Thank you.

Le PRESIDENT : Je vous remercie infiniment, M. Piernas. J’appelle maintenant à la barre

M. Quéneudec. - 7 -

Mr. QUÉNEUDEC: Madam President, Members of the Court, it is an honour, and also, I

confess, a pleasure, to plead again before the Court. I thank the Government of the Republic of

Honduras for the confidence it has shown in me, a nd I would also like cordially to greet the

members of the delegation of the Republic of Nicaragua.

T HE GEOGRAPHY OF THE DISPUTED MARITIME AREA

1. Madam President, Members of the Court, it falls to me to present to you the main

elements characterizing the maritime area to which the dispute brought before you by the

Nicaraguan Application relates. Accordingly, it is the geographical data that will be my concern.

2. These geographical data will of course have to be considered in relation to the subject of

the present proceedings, in other words, in the legal context of a maritime delimitation case in

which what is in issue is the establishment of a single maritime boundary. I shall therefore also

have to respond to the arguments based on the ge ographical situation that have been advanced by

the other Party, which seem to us open to challe nge in view of the subject-matter of the present

case.

3. There is no disagreement between the Parties as to the importance of geography in a

maritime delimitation exercise. Thus, Nicaragua rightly stated in its Memorial: “Geography is the

essential element that must be taken into consider ation for obtaining an equitable result in any

maritime delimitation.” 17 Similarly, during the first public hearing held in the present case it was

clearly affirmed by one of Nicaragua’s counsel th at: “Geography is no doubt the major factor in

16 any maritime delimitation.” 18 It goes without saying that we unreservedly endorse that affirmation.

4. However, while there is indeed agreement between the two Parties on this principle, there

is a marked difference of opinion between them as to what concrete implications this entails in the

present instance. The differing approaches to geogr aphy in the present case are attributable, in our

view, to the fact that the opposing Party is seekin g to give a distorted image of the context and

geographical factors characteristic of the area of the Caribbean Sea affected by the maritime

17
MN, Vol. I, p. 5, para. 1.
18
CR 2007/1, p. 48. - 8 -

delimitation between Honduras and Nicaragua. That is what I would like to try and show in my

statement.

5. Madam President, my presentation will take the following form. First, I shall have to

return to the question of the definition of what tr uly constitutes the disputed maritime area in the

present case (I). Then we shall need to try to identify the rele vant coasts with regard to the

delimitation between Honduras and Nicaragua (II). Next, it will also be necessary to list the most

striking geographical particularities of the area in question (III). Lastly, by way of a conclusion,

we will have to evaluate the link between the geographical factors and circumstances identified and

the arguments put forward by Honduras (IV).

I. The disputed maritime area

[Slide: Central America (JPQ 1)]

6. As can be seen from the map of Central America and the western Caribbean Basin now on

the screen, Honduras and Nicaragua are two neighb ouring States, whose respective coasts on the

Caribbean Sea are adjacent. The land boundary be tween these two States ends on that sea at the

mouth of the river Coco, also known as the river Segovia, and the mouth of that river lies at the end

of Cape Gracias a Dios. That is the first fact.

[End JPQ 1]

7. It should here be stressed that, between two States whose coasts are adjacent, the terminus

of the land boundary at the sea is always of par ticular importance in determining the course of the

maritime boundary. That terminus of the land boun dary constitutes what the Court called, in its

17 Judgment of 10October 2002, the point at which “t he maritime boundary between the Parties is

‘anchored’ to the mainland” ( Land and Maritime Boundary between Cameroon and Nigeria

(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 429,

para.261). Once can therefore say, following the Court, that here too “the maritime boundary

between the Parties is ‘anchored’ to the mainland” and that, in the present instance, it is “anchored”

to Cape Gracias a Dios.

[Slide: Cape Gracias a Dios and the offshore area (JPQ 2)] - 9 -

This can clearly be seen from the map that is now being projected, which specifically shows

the maritime area off Cape Gracias a Dios.

8. This means that it is from and around the te rminus of the land boundary at the sea that the

maritime area is located in which there may be an overlap between the respective titles that each of

the two States can assert over this part of the Ca ribbean Sea. It is t hus an area where opposing

claims confront one another and where the maritime delimitation line must consequently be drawn.

It is this sector that represents what a Chamber of the Court once called “[t]he area within which

the delimitation . . . is to be carried out, in othe r words, the geographical area directly concerned in

this delimitation” ( Delimitation of the Maritime Bounda ry in the Gulf of Maine Area

(Canada/United States of America), Judgment, I.C.J. Reports 1984 , p. 268, para. 28). It is thus in

the maritime area off and around Cape Gracias a Di os that, in the present case, what is commonly

referred to as the “delimitation area” is to be found ( ibid., p. 272 et seq., para. 40 et seq.; Maritime

Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits,

Judgment, I.C.J. Reports 2001 , p.91, para.169 and p.97, para .187). Nicaragua affects to be

unaware of this. To be precise, Nicaragua forgets th ree things. It forgets, first, that the area in

question cannot be defined taking what is referred to as the Nicaraguan Rise as a starting-point. It

forgets, secondly, that the area in question is certainly not limited to north of the 15th parallel; and

it forgets, thirdly, that the extent of the area in question is dependent on the general context in

which it is situated. I shall take each of these three points in turn, beginning with the so-called

Nicaraguan Rise.

[End JPQ 2]

18 9. In its written pleadings, Nicaragua claime d to define the disputed maritime area by

reference to what it had called “the NicaraguanRise” 19 or “seuilnicaraguayen” 20. In his first

pleading, devoted to the geographical framework of the dispute, Mr.Elferink maintained that

position. After a brief reminder of the location of the Parties’ respective territories, he apparently

concluded that the “Nicaraguan Rise” was a major characteristic of the regional geography, since it

19
MN, Vol. I, p. 9, para. 13; p. 18, paras. 42-45. RN, Vol. I, p. 30, para. 3.11.
20
RN, Vol. I, p. 23, para. 3.11. - 10 -

was the first feature that he addressed under that heading , and particularly in view of the fact that

22
he addressed it again at greater length towards the end of his presentation .

10. Honduras has already pointed out that it could not accept that singular view of the

disputed area, as it does not reflect the realities of the present case. Moreover, Honduras has

already stressed in its written pleadings that it seemed, to say the least, strange to claim to

determine the disputed area in this way, on the exclusive basis of the geomorphological

characteristics of a particular sector of the con tinental shelf of the Caribbean Sea, whereas the

Court is otherwise being requested to draw a si ngle maritime delimitation line, valid both for the

water column and for the sea-bed and subsoil of the sea, irrespective of the legal characterization of

the maritime areas concerned.

11. Need I recall that, since the1982 and 1985 Judgments in the Tunisia/Libya and

Libya/Malta Continental Shelf cases, the geological and geomorphological characteristics of the

sea-bed have no longer been recognized by the Court’ s jurisprudence as factors to be taken into

consideration in a delimitation exercise? Furthe rmore, when, as in the present case, it is asked to

determine a single maritime delimitation line di viding both the sea-bed and the superjacent water

column, the Court has very clearly shown that one cannot rely on factors concerning only one of

the categories of area in dispute.

12. Madam President, Members of the Court, there would be no need to dwell further on this

aspect of Nicaragua’s presentation, which reflects ⎯ it must be stressed ⎯ an obsolete view of the

factors to be taken into consideration in a maritime delimitation exercise ⎯ there would be no need

19 to dwell on it, I was saying, if the opposing Party had not invoked, in support of its statements, a

Note from the Minister for Foreign Affairs of Honduras addressed to the Minister for Foreign

23
Affairs of Nicaragua. On the basis of this Note dated 11 July 1995 , Mr. Elferink did not scruple

to claim the other day, not only that “Honduras had no difficulty in recognizing the existence of the

21CR 2007/1, p. 49.
22
Ibid., pp. 66-67.
23CMH, Vol. 2, Ann. 54, pp. 139-142. - 11 -

Nicaraguan Rise”, but, furthermore, that Honduras had also recognized “the fact that it was

24
relevant for the maritime delimitation between Nicaragua and Honduras” .

13. Now one would be hard put to it to find in the text of the diplomatic Note in question any

recognition whatsoever of the relevance of th at geographical and above all geomorphological

feature to the delimitation between the two States. On the contrary, in that Note the Honduran

Minister disputed the name given by Nicaragua to that underwater feature and unequivocally

affirmed its appurtenance to the continental sh elf of Honduras. The Court can verify this by

referring to Annex 54 to the Honduran Counter-Mem orial. Thus, one cannot now seriously claim

that Honduras has recently endorsed Nicaragua’s contention on this matter.

14. Let us now turn to the alleged limitation of the area north of the 15th parallel. Nicaragua

claimed in its Reply that the dispute between th e two States relating to their maritime boundary “is
25
confined to the area north of the 15th parallel” . In order to do so, Nicaragua believed that it could

base itself on a citation taken from the Counter-Memorial of Honduras, in which it was indeed

stated that the maritime areas off the coasts of th e two States which were the subject of the present

proceedings were those which “are located in th e area north of latitude 14°59.8', traditionally

referred to as the ‘15th parallel’ from Cape Gracias a Dios”.

15. But Nicaragua affected to have forgotten th at, in that extract from the conclusions of the

Counter-Memorial, containing a brief summary of Honduras’s arguments, it was also expressly

stated, at the end of the phrase cited, that th e maritime areas concerned in the instant case were

20 those “north and south of the mouth of the Coco/Segovia/Wanks river” 26. That was tantamount to

saying that the maritime areas concerned were those situated on both sides of Cape Gracias a Dios,

where the mouth of that river lies. In other word s, for Honduras, the maritime area in issue in the

dispute between the two States is an area off th eir respective mainland coasts around Cape Gracias

a Dios, and that area cannot on the face of it be bounded to the south by the 15th parallel.

16. Furthermore, the Court will not have fa iled to note that, somewhat inconsistently,

Nicaragua now appears implicitly to accept the Honduran definition. Thus, during the first hearing

2CR 2007/1, p. 67.
25
RN, Vol. I, p. 6, para. 1.5.
2CMH, Vol. I, p. 147, para. 8.3 (French translation, p. 129). - 12 -

last week, the presentation on the cays located in th e area to be delimited was the subject of three

27
successive interrelated slides (AE1-5 toAE1-7, in the judges’ folder) , said to be taken from

figures III and IV of the Reply of Nicaragua. What was not very clear from the illustrations ⎯

28
figuresIII and IV ⎯ accompanying the Reply has now become pellucidly clear: the area to be

delimited extends well south of the 15th parallel, if we are to believe these sketch-maps. The

Members of the Court can confirm this from the fo lder that was submitted to them by Nicaragua

for the first hearing9.

17. It should also be pointed out in this regard that, if one were to follow the definition that

Nicaragua seeks to give of the area where the maritime projections of the two States meet, the

outcome would be somewhat anomalous, as, according to Nicaragua, that area would comprise

only the maritime area off the eastern coastline of Honduras.

[Slide: Area of Convergence as shown on IB17 (JPQ 3)]

What is more, this would be an unprecedented s ituation, since, for the first time, a maritime

delimitation dispute brought before the Court ⎯ as can be seen from the slide that we have simply

21 blocked and highlighted, as presented by Nicaragua ⎯ would concern a maritime area entirely

located off the coast of only one of the two States.

[End of JPQ 3]

18. Third and last, Nicaragua appears to have been unaware of the general framework on

which the extent of the maritime area in i ssue depends; as Honduras sees it, it is an area of

relatively modest dimensions, basically for two closely related reasons.

19. On the one hand, we must not lose sight of the fact that the case submitted to the Court

concerns a delimitation in the Caribbean Sea, that is, in a semi-enclosed sea within the meaning of

Article122 of the United Nations Convention on the Law of the Sea. It is a sea of small

dimensions in comparison with the wide ocean ar eas. The distances and proportions are not here

the same as in the case of a delimitation between ri parian States of a major ocean. It is thus

important to take account of the relative nature of the distances at issue and of the scales of

2CR 2007/1, p. 50.
28
RN, Vol. II, Anns., figs. III and IV.
2Republic of Nicaragua, judges’ folder, Monday, 5 March 2007. - 13 -

magnitude in the particular context of a delimitation area of fairly small dimensions, within that sea

which has sometimes been called “the American Mediterranean”.

20. On the other hand, it is a sea bounded by a number of riparian States, including several

island States, and also studded with various types of small island features. The respective maritime

claims of these States meet and intersect in this sea. The result is that none of them can really

develop the projection of its rights over the sea to the full, as far as the famous 200nautical-mile

limit. And we must therefore denounce the quite unr ealistic and artificial character of some of the

sketch-maps presented by the opposing Party in the first round of oral pleadings.

[Slide: The Relevant Area IB33 (JPQ 4)]

21. One example is the figure now being projected on screen, which was presented by

counsel for Nicaragua at the hearing on 6 March as indicating the “relevant area” in the case before

us30. But such a presentation or representation of the area totally disregards the regional

geography. It could even give the impression that, from the standpoint of the maritime

delimitation, the situation of Honduras and Nicaragua is, in the final analysis, not fundamentally

22
different from that of Canada and the United States in the Gulf of Maine area. Which, it will be

agreed, is surely somewhat paradoxical.

[End of JPQ 4]

22. We are not here in a situation where the two States concerned might develop their rights

over the maritime areas to the full, to a distance of 200miles offshore. Their coastal projections

very soon start to compete with those of other Stat es of the region. Thus, to take just one example,

there are only some 65nautical miles between Ca pe Gracias a Dios and the first point of the

delimitation line established by the 1986 Treaty between Colombia and Honduras.

23. In this regard, it should also be reca lled that Nicaragua does not simply overlook the

physical geography, but would seem to take no great er account of various important aspects of the

political geography of the region.

24. In referring to what it called “the area of relevance for the delimitation”, (“la région

31
(ouzone) pertinente aux fi ns de la délimitation”) , Nicaragua does not always seem disposed to

30
CR 2007/2, p. 39 (Brownlie).
31
RN, Vol. I, p. 27, para. 3.2, p. 30, para. 3.13 (French translation, pp. 21 and 24). - 14 -

take full account of the rights and interests that third States have asserted or may assert in the

region. On this point, Nicaragua confines itself to disputing any releva nce to the delimitation

agreements already concluded in the region with or among third States.

[Slide: Maritime Agreements in the Western Caribbean (JPQ 5)]

25. Now, whatever opinion one may have rega rding the validity or opposability of all or

some of these agreements ⎯ a matter on which Nicaragua laid the greatest stress in its written

pleadings and to which it reverted at length l ast week at the end of the first round of oral

pleadings 32 ⎯, it is nevertheless not in doubt that these agreements are an integral part of what

33
Nicaragua itself called “the legal context” when considering the political geography of the region .

23 26. Thus, it seems to us that, despite what Nicaragua says on the matter, the Court will not be

able to disregard the rights and interests of third States, as revealed by the very fact that those

agreements have been concluded. Whether in the case of the 1928 Treaty between Nicaragua and

Colombia or of the 1986 Treaty between Honduras and Colombia, they give an idea of the way in

which the area to which the ma ritime delimitation dispute be tween Honduras and Nicaragua is

confined may be circumscribed.

[End of JPQ 5]

27. Madam President, I shall now, in the second part, consider the question of the

identification of the relevant coasts in the present case.

II. The relevant coasts

28. It has long been established in jurispruden ce that the coasts which need to be considered

in a delimitation exercise are those with maritime projections which meet. Parts of coasts which do

not border on the zone or area to be delimited cannot therefore be taken into account.

29. In 1977, the Anglo-French Court of Arbitr ation thus dismissed the French argument that

the delimitation of the two States’ continental shelf in the West ern Approaches should have been

governed by reference to the general direction of the Channel coasts. According to the Court, the

only coasts of relevance for delimitation purposes in the Atlantic sector were those actually facing

32
CR 2007/5, pp. 22-26.
33
RN, p. 34 (French translation p. 26). - 15 -

that sector, however short they might be . And we know that the Court regarded only the coasts of

the island of Ouessant on the French side and of th e most westerly of the Scilly Isles on the British

side as relevant in that sector.

30. Moreover, according to the Court’s most recent jurisprudence on the matter, it is by

determining the relevant area for purposes of delim itation that the relevant coasts from which the

delimitation line may be determined can be identified. In the last maritime delimitation case settled

by the Court, five years ago, it became clearly apparent that only the coastlines which were directly

24 related to the dispute, that is to say those which actually faced that area, could be considered for

purposes of delimitation ( Land and Maritime Boundary between Cameroon and Nigeria

(Cameroon v. Nigeria: Equatorial Guinea interven ing), Judgment, I.C.J. Reports 2002 , p.436,

para. 280 and p. 443, para. 291).

31. That is why, in the current maritime delimitation dispute between the two Republics of

Nicaragua and Honduras, “it is not the whole of the coast of each Party which can be taken into

account” ( Continental Shelf (Tunisia/Libyan Arab Jam ahiriya), Judgment, I.C.J. Reports 1982,

p. 61, para. 75). In particular, “the submarine extension of any part of the coast of one Party which,

because of its geographic situation, cannot overlap with the extension of the coast of the other”

(ibid.), to quote the words used by the Court 25years ago, is to be excluded from consideration.

But that is precisely what Nicaragua does not seem prepared to admit. In the instant case, the

coasts of the two States which are to be taken into consideration are constituted, on the one hand,

by only part of their mainland coastlines and, on the other, by the coasts of the islands lying in the

area concerned.

(a) The mainland coasts

32. Ever since the start of proceedings, Nicara gua has claimed that its entire coastal front, as

well as the whole of Honduras’s coastline, should be considered. It has done so with the sole

purpose of attempting to justify the application it advocates of the bisector method to the angle

34
Delimitation of the Continental Shelf (France/United Kingdom) , Award of 30June19RIAA, Vol.XVIII,
p. 115, paras. 246-247. - 16 -

which, it claims, is formed by the two coastlin es. The first map appended to Nicaragua’s

35
Memorial, entitled Figure A, is a perfect illustration of this .

[Slide: Figure A of Nicaragua’s Memorial (JPQ 6)]

33. The map which has just appeared on the scr een, and which was also shown last week to

support Nicaragua’s arguments 36, provides an opportunity to make a number of comments to the

Court regarding the coasts for consideration and the way in which they have been presented by

each Party to the case.

25 34. Firstly, from a cursory glance at this map, we can immediately see that Nicaragua has a

strange way of representing Honduras’s coastal front by means of a “line A”. For, unlike “line B”,

which represents the coastal front of Nicaragua, “ line A” is drawn so as to run entirely through the

inland territory between CapeGraciasaDios a nd the terminus of Honduras’s land boundary with

Guatemala. This results in what could be called a “planing effect”, as it effectively “planes” off the

entire northern part of Honduras’s territory and even, as Professor Greenwood said the other day, a

very substantial part of that territory. This fact alone shows that the line, despite being called the

“coastal front”, cannot in any way be regarded as representing Honduras’s Caribbean coastline, still

less, of course, as representing the segment of coast which, on Honduras’s coastline, is relevant in

the present case.

[End of JPQ 6; slide: Spain’s Atlantic coast (JPQ 7)]

35. All things considered, it is as though we were to try to represent the northern coastal

front of Spain by a straight line, as shown on this map. Who could believe that that coastal front

could be validly represented by a straight line r unning from, at one end, the terminus of the land

boundary with Portugal in the west and, at the othe r end, the terminus of the Franco-Spanish land

boundary on the Bay of Biscay in the north? That, however, is what Nicaragua has not hesitated to

do in the case of the Honduran coast.

[End of JPQ 7]

35
MN, Vol.III (maps), fig.A: “Illustration showing the geography and bathymetry of the Nicaraguan and
Honduran coast with coastal front vectors and the coastal front bisector.”
3CR 2007/2, p. 11. - 17 -

36. Secondly, on the pretext of demonstrating the cut-off effect that would, in its opinion,

result from the delimitation line being drawn along the parallel of latitude invoked by Honduras,

Nicaragua produced a sketch-map in its Reply entitle d: “Cut-off effect the use of the 15° parallel

would have on the Nicaraguan maritime area if it were used as a line of delimitation with

Honduras.” 37

[Slide: Plate 1, RN (JPQ 8)]

On the sketch-map shown here, Nicaragua h as used a different presentation technique. It

has, so to speak, replaced the “planing” by “smoot hing”. As we can see on the sketch-map, it has

26 tried to “smooth” the Honduran coast north of Cape Gracias a Dios as much as possible, in order to

give the false impression that no part of that coast has a north-south orientation. But that is simply

a trick.

[End of JPQ 8]

37. A sketch-map is, as we know, a rough drawing intended to show the main features of a

motif or something else one wishes to highlight. By juggling with the proportions, one can more or

less diminish or distort what one wishes to reduce or distort, if it cannot be omitted completely.

But such a sketch-map is never an objective represen tation of reality. I regret to say that, despite

the accompanying reference to the United Kingdom Hydrographic Office as its source, this

sketch-map must be seen for what it is, namely, a completely distorted representation of reality.

38. Thirdly, contrary to all cartographic evidence, Nicaragua absolutely insists that Cape

GraciasaDios is the salient point on the coast whic h, in this region, marks a sharp change in the

direction of the Central American coastline on the Caribbean Sea.

[Slide: Successive coastal direction turns along the Honduran Coast (JPQ 9)]

As Honduras stressed in the written pleadings, it is the change in the general direction of the

coastline in the vicinity of Cape Falso that actually marks the beginning of the radical shift in the

38
orientation of the Central American coast facing the Caribbean . From Cape Falso, the Honduran

coast undergoes a series of changes in direction, as can be seen from this map. And it is only after

37
RN, Vol. II, fig. 1.
3RH, Vol. I, p. 111, para. 6.18. - 18 -

Cape Camarón, located north-west of Cape Falso, that the coast clearly takes a general east-west

direction.

[End of JPQ 9]

39. Fourthly, and following on from the previous point, it can be noted that Nicaragua is

apparently obsessed with the argument it has put forward that the respective coastal fronts of

Honduras and Nicaragua have an east-west and north -south orientation. And that is why it has

claimed that the two coastal fronts represent the two si des of an inverted right angle. In so doing,

however, it also forgets that a stretch of the Honduran coastline between CapeFalso and
27

Cape Gracias a Dios also follows a north-south orientation.

[Slide: British Admiralty chart2425 showi ng the east-facing coastal features of Honduras

and Nicaragua (JPQ 10)]

And it is precisely that stretch of the H onduran coast running north-south which constitutes

the part of the mainland coast of Honduras facing the relevant maritime area.

[End of JPQ 10]

40. Fifthly, Nicaragua refuses to take into account the change in the direction of the

Honduran coast from Cape Falso, that is, Cape Gracias a Dios.

[Slide: Cabo Gracias a Dios and the offshore area (JPQ 11)]

The map now appearing on the screen shows that from that point (CapeFalso) Honduras’s

mainland coast, by virtue of its orientation, can no longer be regarded as facing the area of the

delimitation. The part of the Honduran coast situ ated beyond Cape Falso faces north-north-east,

that is to say towards a sector of the Caribbean Sea where the projection of that stretch of coast

cannot possibly meet the projection of the Nicaraguan coast. It is therefore also difficult to

conceive that it could have any geographical rela tion whatsoever to the Nicaraguan coast for the

purposes of the delimitation.

[End of JPQ 11]

41. Sixthly and lastly, Nicaragua also totally fails to mention the fact that its own mainland

coast is also affected by a quite marked change of direction to the south of Cape Gracias a Dios at

the headland of Punta Gordo, lying south of Dacura.

[Slide: British Admiralty chart 2425 (JPQ 12)] - 19 -

However, a quick glance at a maritime char t of the region shows that beyond PuntaGordo

the Nicaraguan coastline can no longer, in view of its orientation, be regarded as facing the

delimitation area or as having the slightest geogra phic relationship with the Honduran coast for the

purposes of a delimitation exercise. That being so, it is difficult to claim, as the opposing Party

does, that the whole of the Nicaraguan coast should be taken into consideration. We might thus

28 quote the words used by the Court in a previous case : “It is clear from the map that there comes a

point on the coast of each of the two Parties be yond which the coast in question no longer has a

relationship with the coast of the other Part y relevant for submarine delimitation.” ( Continental

Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, pp. 61-62, para. 75.)

[End of JPQ 12]

42. The resulting conclusion is that ultimately only two relatively short segments of the

coastlines of the two States, on either side of Ca pe Gracias a Dios, can be regarded as representing

the relevant mainland coasts of those States for th e purposes of the present delimitation. This will

be all the more apparent from an enlargement of the relevant portion of the British Admiralty chart

which has already appeared on the screen.

[Slide: British Admiralty chart 2425 showing the east-facing coastal features of Honduras

and Nicaragua (JPQ 10) repeated]

In its written pleadings, Honduras demonstrated that these two segments of coast were made

up of the portions of adjacent coasts in the imme diate vicinity of the terminus of the land

boundary 3. The distinctive features of those portions of coast are not only their modest length ⎯

just some 30 km each ⎯ but also the almost perfect symmetry of their respective forms.

[End of JPQ 10]

(b) The island coasts

43. A final series of comments is needed rega rding the relevant coasts, in so far as these

coasts not only consist of two small sections of the mainland coast of the two States either side of

Cape Gracias a Dios, but also include the coasts of islands lying off that Cape.

[Slide: British Admiralty chart 2425 (JPQ 13)]

39
RH, Vol. I, pp. 111 and 112, para. 6.17 and 6.19 (French translation of the Rejoinder, pp. 104-107). - 20 -

44. This map, which is again taken from Br itish Admiralty chart 2425, shows the existence

29 of several island formations off CapeGracias aDios. These formations are not really part of the

general configuration of the mainland coast. They are relatively . . .

Le PRESIDENT: M. Quéneudec, pourriez-vous aller un peu plus lentement pour les

interprètes. Je vous en remercie beaucoup.

Mr. QUÉNEUDEC: Yes, Madam President. As I was saying, these formations do not really

form part of the general configuration of the coast, since the distances separating them from

CapeGracias aDios are approximately 27nautical miles for Bobel Cay, 30miles for Edinburgh

Cay and some 41miles for South Cay. These islands therefore lie beyond the outer limit of the

territorial sea adjacent to the mainland coast. As a result, the territorial waters that surround these

islands do not overlap with the territorial sea off the mainland, except in one sector north-north-east

of Cape Gracias a Dios.

[End of JPQ 13]

[Slide: Cape Gracias a Dios and the offshore area (JPQ 2) repeated]

45. Looking at a more detailed map makes one thing clear to start with: these formations fall

into two quite distinct groups, separated by the 15thparallel. Bobel Cay and South Cay are

situated 4.5and 5.5miles north of this paralle l respectively, while the northernmost point of

Edinburgh Reef lies 8.5miles south of it. However, there are reefs in front of both these groups,

approximately 3 or 3.5 miles either side of the 15th parallel: Hall Rock to the north is marked on

the map as a rock, i.e., a rocky or coral geological formation of limited size which remains above

water at high tide, while Cock Rocks to the south are reefs whose high point is very close to the

surface and which are no doubt exposed by the tides, since the sea charts attach the term “Cover” to

them.

46. One can also see that the island formations north of the 15th parallel are a fairly compact

group. In fact, the distances between them are rare ly more than 5nautical miles. Bobel Cay is

4 miles away from Half-Moon Cay, which lies furt her north, 5 miles from Port Royal Cay, which

in turn is 2 miles from Savanna Cay and 1 mile from Porpoise Cay, from where South Cay is some

30 5 nautical miles away. South of the 15th parallel, there are just two formations of the same type in - 21 -

the area concerned, Edinburgh Cay and Edinburgh R eef, about 2 nautical miles apart. It should be

40
noted here that, contrary to what Nicara gua has claimed, both in its written pleadings and at the

hearing of 5March 41, Miskito Cay, situated a good deal further south ⎯ which does not really

appear on the map here ⎯ off Punta Gorda, cannot be regarded as forming part of the relevant area

for delimitation.

[End of JPQ 2]

47. All these island formations are cays, as indicated by their names. A cay ⎯ or key, or

“cayo” in Spanish ⎯ usually refers to a small island formed of coral sand blown by the wind onto a

reef or atoll and more or less stable. In this part of the Caribbean Sea, the name appears to have

been given, in colonial times, when this sea was regarded as a “Spanish lake”, to all the small

sandy islands, whereas further north, in the Florida Strait, the same word (“key”) refers instead to a

group of rocks only just rising above the level of the sea.

48. However, the use of this name “cay” mu st not conceal the fact that, in terms of

international law, these are very much islands, wh atever their size may be. One need only recall

that in the case between Qatar and Bahrain, the Cour t found, with regard to Qit’at Jaradah, that a

sandy formation 12 m long by 4 m wide, no more than 40 cm high at average high tide, had to be

considered an island from the legal point of view (Maritime Delimitation and Territorial Questions

between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001 , p.99,

para. 195).

[Slide: Aerial photographs of Bobel Cay and South Cay (JPQ 14)]

49. As can be seen from the photographs now on the screen, the formations in question in the

maritime area that concerns us are admittedly small, but nonetheless genuine islands in terms of the

law of the sea, with all the legal consequences appertaining to their status as islands, as my

31 colleagues Pierre-Marie Dupuy and David Colson will explain in their presentations. At this stage,

there is no need to say more on the subject.

[End of JPQ 14]

40
RN, Vol. I, p. 31, para. 3.13.
41
CR 2007/1, p. 50, para. 8. - 22 -

50. Madam President, this last comment now leads me to consider the main geographical

features of the area for delimitation, which is the third part of my presentation.

III. The main geographical features of the area

51. For Honduras, the geography of the relevant area has two key characteristics. The first

concerns the configuration of the relevant mainla nd coasts of the two States. The second relates to

the location and distribution of small islands belonging to the two States in the region for

delimitation.

52. Let us look at the first characteristic. From its first decisions on the subject, the Court

has constantly stressed the primacy of coastal ge ography in any maritime delimitation exercise.

One need only recall the phrase from the famous J udgment of 1969, stating that it is necessary “to

examine closely the geographical configuration of the coastlines of the countries whose continental

shelves are to be delimited” (North Sea Continental Shelf (Federal Republic of Germany/Denmark;

Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96).

[Slide: British Admiralty chart 2425 (JPQ 13) repeated]

53. In the present case, the key feature of the coastal configuration lies in the fact that the

relevant mainland coasts of the two States are almost symmetrical in forming, as I have already

said, the two sides of a cone-shaped promontory, as can be seen clearly from the map. The

segments of coast in question may well be rather short, as has been pointed out. But the quite

distinctive form they give to the mainland coast in the region of Cape Gracias a Dios is all the more

remarkable as a feature of the coastal geography because this conical shape is almost equally

shared between the two States.

[End of JPQ 13]

32 54. This situation is made even more distin ctive by the fact that the land boundary between

the two States ends at the tip of this promontory, at the mouth of the river that acts as a frontier

between them [Slide: Satellite analysis of coast al changes at CapeGracias aDios (1979-2001)

(JPQ15)]. The tip of the promontory is consta ntly changing because of significant alluviation

taking place. Everyone agrees on this, and it is perfectly illustrated by the satellite pictures

showing the successive coastal changes at Cape Gracias a Dios between 1979 and 2001. - 23 -

[End of Slide 15]

55. Madam President, Nicaragua has produced for the oral phase a photograph taken on

29 November 2006 by the Spot satellite, and this pi cture was presented to the Court by the Agent

of the Republic of Nicaragua 42. Not to be outdone, Honduras has obtained another photograph,

taken on 24 January 2004 by the Quickbird satellite.

56. Like the photograph presented last week by Nicaragua, the one now on the screen [Slide:

Quickbird imagery of Cape Gracias a Dios (JPQ 16)] cannot be regarded as a new document within

the meaning of Article 56 of the Rules of Court. It is an item which is readily accessible, since it

can easily be obtained from various bodies whose c ontact details can be found through Google on

the Internet, for example from the Eurimage company ⎯ though this should not be seen as any

kind of advertising on my part.

57. This is of course a less recent photograph, since in contrast to the one presented by

Nicaragua, it was taken in January2004, but the picture is much sharper, even the trees being

visible. The resolution of this image is in fact 60 cm per pixel, as opposed to 20 m per pixel for the

Spot picture. On this image, unlike the one presented by Nicaragua, one can clearly see that in

addition to the existing island in the middle of the mouth, a new island was appearing three years

ago in the north-east channel of the CocoRiver, dividing that channel into two new arms. The

mouth does indeed now have three channels.

33 58. If the data collected by Spot in 2006 are transferred onto the Quickbird image from 2004,

it is possible to reconstruct quite accurately th e outlines of these two islands’ present coasts and of

the banks of the river Segovia at its mouth.

[End of JPQ 16; Slide: Spot imagery of Cape Gracias a Dios (JPQ 17)]

59. These pictures clearly show that the mouth of the river Segovia or Coco cannot be

defined as being formed by the northern bank on the one hand and on the other by a sandy island

which might have come to narrow the river at that point. The images make it clear that the mouth

is bounded by the two main banks, and contains islands whose outlines change according to the

conflicting processes of alluviation and erosion. And the most obvious consequence is that the

42
Judges’ folders, 5 March 2007, graphic CAG 7. - 24 -

mouth of the river is now divided into three distinct arms because of the presence of the two islands

which have been formed there by accretion.

[End of JPQ 17]

60. Madam President, Members of the Court, these data on the coastal configuration of

CapeGracias aDios are objective facts, not specu lation about potential changes. In the light of

these data, I am afraid the rather sophisticated hypotheses presented to us last week by my friend

Professor Pellet have already been refuted and brought to nought by the whims of Mother Nature.

61. The second characteristic of the area concerns the islands. The location and distribution

of these islands show that, despite their small size, th ey have a role to play here in the delimitation,

in so far as some of them, such as Bobel Cay, Port Royal Cay, Savanna Cay and South Cay, are

under the sovereignty of Honduras, while others , lying further south, fall under Nicaraguan

sovereignty. Their situation in relation to each other is, then, one of opposite coasts, between

which a delimitation line therefore has to be drawn as the boundary between the respective

territorial seas generated by these islands.

62. There is no need to develop further these comments on the islands situated in the area of

delimitation. With the Court’s permission, I wo uld refer to the explanations provided on this

subject by ProfessorGreenwood in the general presentation that he made on Monday, and in

particular to illustration CJG 19 which accompanied his statement.

63. In our view, the outcome of all the comments we have made, both on the relevant coasts
34

and on the features of the maritime areas in question, is that the maritime area for delimitation is

bounded to the west by adjacent mainland coasts an d is also studded with opposite island coasts to

either side of the 15th parallel. As Mr. David Cols on will show in his presentation, this situation is

not without effect on the approach to the delimitation line in the present case.

64. One can perhaps apply here, mutatis mutandis, what the Court found in October 2002 in

relation to another situation: “T he geographical configuration of the maritime areas that the Court

is called upon to delimit is a given. It is not an element open to modification by the Court but a

fact on the basis of which the Court must effect the delimitation.” ( Land and Maritime Boundary

between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening),

Judgment, I.C.J. Reports 2002, pp. 443 and 445, para. 295.) - 25 -

65. Madam President, I now come to the fourth and final part of my statement, which will

also form a conclusion, since it will look at the arguments of Honduras regarding geography.

IV. The arguments of Honduras regarding geography

66. In this case, as in many other maritim e delimitation cases brought before the Court or

other international tribunals, the two States clearl y have a markedly different view of what is a

given in terms of geography and the consequen ces that can be drawn from this as regards the

course of the maritime delimitation. The fact is that the assessment of the geographical data

involves a greater or lesser degree of subjectivity. Honduras, for its part, has tried to reduce this

subjective element as far as possible in presenting and assessing the geographical facts. I hope I

have convinced the Court of that.

67. It is indeed on the basis of geography, as it exists, that the appropriate legal rules on

maritime delimitation need to be applied. Pie rreDupuy will come back to this point in a few

moments. The Court has specified and refined these rules over the years. Its case law on the

35 subject is therefore well established. It contains that element of stability and predictability which

some, even within this Court, had hoped and pray ed for nearly a quarter of a century ago. The

Court certainly cannot risk questioning this acquired wisdom, which has now become consolidated.

It therefore cannot agree to take the approach advocated by Nicaragua to drawing a maritime

boundary.

68. The solution sought by Honduras is more in tune with the rules of the law on maritime

delimitation. This solution may indeed be anchored in history; but it is equally in keeping with the

geographical and other factors in the case.

69. Whether the Court recognizes without ado the existence and validity of the traditional

line of the 15thparallel, or whether it begins by drawing a provisional equidistance line and then

adjusts this along the 15thparallel to adap t it to the circumstances of the present case ⎯ the

solution it decides on in either case will surely be totally in keeping w ith a geographical and

historical situation that is perfectly reconciled regarding the 15th parallel of latitude north.

70. If that is indeed the cas e, the commentators on the Judgment delivered by the Court will

perhaps then have to reflect on the old Latin adage: “Linea recta semper praefertur transversali.” - 26 -

Madam President, Members of the Court, tha nk you for your attention. The presentation of

the arguments of Honduras will continue with the address by Mr. Dupuy.

Pourrais-je suggérer, Madame le président, que vous donniez la parole à M. Dupuy après la

pause que la Cours voudra peut-être faire maintenant.

The PRESIDENT: Thank you, we will do that.

La Cour fera à présent une pause et l'audience reprendra sous peu.

L'audience est suspendue de 11 h 30 à 11 h 45

Le PRESIDENT : Veuillez vous asseoir. M. Dupuy, vous avez la parole.

Mr. DUPUY:

The applicable law

1. Madam President, Members of the Court, it is always a privilege and pleasure for me to

appear before the Court and I am doing so for the fourth time in a case involving the Republic of

36 Honduras, to which I express particular thanks for trust and loyalty by which I am honoured.

2. Madam President, while this is admittedl y a very rare occurrence, it does sometimes

happen that islands gradually emerge above the wa ves, especially in volcanic zones, as exist in

Central America incidentally. They then constitute a new presence in areas previously considered

essentially maritime. The scientific community, partic ularly geologists, takes a keen interest in

these telluric phenomena of island emergence.

3. In a way, we observe a rather similar phenom enon in the case which brings us here today,

although it is one of interest foremost to lawyers. Islands, islets and cays have in fact always

existed in the Caribbean Sea. It was in partic ular precisely because they offered a port of call,

albeit a precarious one, to the “Brethren of the Coast” ⎯ meaning buccaneers, pirates, galleon

robbers and looters of wrecks ⎯ that the Spanish Crown took care to apportion amongst its

captaincies the duty of ensuring security on the seas. Thus, it projected the apportionment of

territorial authority beyond the shore, an apportionment subsequently inherited, under uti

possidetis, by the new States which succeeded it. True, these islands have physically existed from - 27 -

time immemorial. But Nicaragua never showed much interest in them from the time it was created

until the very recent past! Clearly more oriented towards the coastal front it also has on the Pacific,

it paid no heed to the support to be had from territorial claims, even in a maritime delimitation case

initiated nevertheless by it alone. For the presen t case, I shall remind you, was brought by means

of a unilateral Application for which Nicaragua bears sole responsibility.

4. Now, its Application makes no mention of the islands. It is confined to setting out a claim

to a delimitation which I venture to characterize as exclusively maritime, based on the construction,

truly arbitrary, of a geometric line having no ratio nale other than the way in which it ruthlessly

slices up the general configuration of the Hondur an coastline from the Guatemalan border to the

unruly mouth of the Coco River!

37 5. Nothing in the Application. And not much in its first written pleading either. Well, not

much formally but already a great deal substantivel y. Indeed, it is in its Memorial that Nicaragua,

as if as one last second thought, appears to have ad ded, at the tail end of paragraphs until then

systematically numbered, the first claim to “sovere ign rights” to what it still calls mere “Islets and

Rocks” situated north of what we are, for convenience, calling the 15th parallel 43.

In their very conception and logic, the delim itation method proposed by Nicaragua and the

line resulting from it nevertheless dispensed with a ny help from these “islets and rocks”; nor did

the submissions presented to the Court at that time make any reference to these island features.

6. The incidental and belated mention of these islands in Nicaragua’s Memorial did however

immediately draw Honduras’s attention. In its Counter-Memorial, it wondered whether the other

Party was thereby surreptitiously transforming a maritime delimitation case into a dispute over the

attribution of island territories as well.

7. However, despite this belated disinterment of interest in the cays, Nicaragua continued, in

its written pleadings, even still at the Reply stage, paradoxically to manifest a haughty indifference,

as it were, to these small islands dotting the sea above the 15º parallel, at least when Nicaragua was

speaking of delimitation. After having accused Honduras of excessive interest in the islands,

Nicaragua thus continued to make the curious asser tion, in contravention of the fundamental rules

43
MN, p. 166. - 28 -

of the applicable law and of Honduras’s position, th at both Parties “consider that the islands or

44
islets in the area have no effect on the delimitation” ! This assertion, which is wrong in respect of

Honduras, was moreover confirmed by the lack of any reference to the islands and islets in

Nicaragua’s submissions.

8. Yet now in the course of these proceedings the Agent of the Republic of Nicaragua in his

opening statement officially announced to us that in the end his country was going to amend its

submissions in order “specifically [to] request a decision on the question of sovereignty over the

38 islands”45. Culminating outcome of the gradual, but seemingly inexorable, emergence of the

islands in this litigation, but so at odds with th e premises of the dispute that the Court and the

Respondent now feel they have been misled as to the true nature and real substance of this case.

Indeed, it might initially have seemed correct to call it, as the Registry has done, the “case

concerning Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea”. That

is still true. But it would be better from now on to call it the “case concerning the island and

maritime dispute between Nicaragua and Honduras in the Caribbean Sea”.

9. Be that as it may, and as in the past, re gardless of the importance of the emergence of

these islands into Nicaragua’s field of vision, Professor Ian Brownlie, on last Tuesday and Friday,

not only showed the great goodness of rereading to the Court copious passages from our own

written pleadings. He also cited jurisprudence who se wealth was matched only by its diversity. It

would however appear from this accumulation of case law citations that Nicaragua is changing its

view of the islands without however changing its approach. Without in any way modifying either

its method or the compelling bisector which it yields. Nicaragua in fact appears to claim the

islands only because it initially drew a line allowing it to appropriate them. Its avenging bisector is

not the product of a careful approach based on testing a preliminary drawing of an initial

equidistance line. It is an arbitrary slash of th e scissors through the warp and weft of the sea.

Nicaragua has thus adopted an approach opposite to one of the cardinal rules of the law of the sea.

10. It remakes geography with the help of a great many geometric constructions, at once

complex in elaboration and simplistic in result. As if it viewed the law as reflected in the turbid

44
RN, p. 10, para. 1.17.
45
CR 2007/1, p. 46, para. 103. - 29 -

waters of the Atlantic, it inverts the famous sayin g of the Court. For Nicaragua, the land no longer

dominates the sea; instead, the sea, re-tailored to Nicaragua’s wishes, grants it island features even

though its prior conduct shows that it long neglected them.

39 11. Nicaragua’s approach thus bespeaks a majo r violation of the cardinal rules of maritime

delimitation. It is in breach of the applicable la w and that is why I am here today to speak to you

about it. True, Madam President, all counsel fo r Honduras are speaking about the law here before

you and my task, modest of course but still pleasan t, will merely be to assemble these diffuse

points in an arrangement and respectfully offer it to you. To take just one example,

Jean-PierreQuéneudec is not only a professor of geography! The statement he made sets out in

legal terms the significance of the geography that must be taken into account. Before him,

Philippe Sands spoke to you not only about the facts but especially about the law. Let us note here

that the applicable law he discussed is not the law of the sea but of the land! By that I mean not the

law of delimitation but the law of territorial attr ibution, the full import of which we will see again

later on. As for myself, I shall speak to you directly about the law that should in principle, pursuant

to Nicaragua’s initial Application, have been our sole concern, the law of maritime delimitation.

12. Of course, Nicaragua has not contested Honduras’s statement in its Counter-Memorial to

the effect that “[t]he law app licable to the case is, therefore, the positive customary international

law of the sea, as reflected by the practice of States, the relevant artic les of the 1982 Convention,

and the international case law, beginning with the judgments of the International Court of

Justice” 4. That law is now stabilized. As President Guillaume said in presenting an overview of

your jurisprudence to the General Assembly in Oct ober 2001: “[I]t is encouraging to note that the

law of maritime delimitations, by means of these developments in the Court’s case law, has

47
reached a new level of unity and certainty , whilst conserving the necessary flexibility.” Itis

indeed that stabilized body of law which should be applied here.

It has however been confirmed, after the othe r Party’s first round of oral argument, that a

two-fold clarification is required. We shall therefore deal with it in two parts.

46
CMH, p. 60, para. 4.8.
4Speech by President Guillaume to the Sixth Committee of the General Assembly of the United Nations,
31 October 2001, http://www.icj-cij.org/icjwww/ipresscom/SPEECHES/iSpeechPresident_Guill…
2001.htm - 30 -

The first will concern equity in relation to the relevant circumstances, the second the

delimitation method.

40 I. Equity’s role and place in relation to the relevant circumstances

13. In respect of equity’s role and place in re lation to the relevant circumstances, the Parties

agree in principle that the objective in any maritime delimitation is to arrive at an equitable solution

and I shall spare the Court a review of its jurisprudence from the North Sea Continental Shelf case

onwards concerning the characteristics of equity as it should apply in the legal determination of a

delimitation.

The fundamental point to be recalled here is that equity is achievable solely through taking

into account the relevant circumstances for the delim itation and that there is nothing more specific

to a case than the circumstances relevant to it. We have already earlier recalled this observation by

the Chamber in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine

Area (Canada/United States of America) (Judgment, I.C.J. Reports 1984, p.246); and, as the

Court itself later noted in the case concerning Maritime Delimitation in the Area between

Greenland and Jan Mayen (Denmark v. Norway), (Judgment, I.C.J. Reports 1993, p. 76, para. 85),

there is no legal obligation to transpose onto one case a solution adopted in a different one.

14. On the subject of terminology, I would in passing like to clarify one point. In the area in

question, the delimitation is to a great extent th at of the territorial sea, as you will see from this

map.

[PM(CDJG21)]

In respect of the territorial sea, Article 15 of the Convention on the Law of the Sea speaks of

“special circumstances”. In the rest of my st atement this term, specific to delimitation of the

territorial sea, will however be as it were subsum ed into, in other words included in, the broader

concept of “relevant circumstances”, which is appropriate for the delimitation of the other maritime

areas, the continental shelf and the exclusiv e economic zone. The present case involves the

plotting of a single delimitation line.

15. Here the circumstances that are at once special and relevant are varied but in no way

justify the surprise expressed the other day by counsel for the App licant. Is there any need to - 31 -

recall, as the Court has said, that: “there is no legal limit to the considerations which States may

take account of for the purpose of making sure that they apply equitable procedures...” ( North

41 Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of

Germany/Netherlands), Judgment, I.C.J. Reports 1969, p.50, para.93.) And those are mainly, at

least here, of three types: geographical, historical and, lastly, legal.

A. The geographical circumstances

16. Geographical circumstances, first of all. We should indeed start with these, since, as

already noted in the 1977 United Kingdom ⎯ France award, “it is the geographical circumstances

which primarily determine the appropriateness of the equidistance or any other method of

delimitation in any given case” .8

I will however be brief on the matter of the geographical circumstances, as

ProfessorQuéneudec has just set out before you al l the factors to be taken into account. On the

other hand, I will dwell a bit longer, starting from this initial review, on the one factor among these

which Nicaragua has paradoxically left out of its de limitation. This is, of course, the presence of

islands.

(1) Geographical circumstances concerning the whole of the area in question

17. The geographical circumstances concerni ng the whole of the area in question are by

definition specific to each case. And yet the various categories into which they fall are

time-honoured; they cannot be ignored or distorted: as others before me have noted, one must start

at the end-point of the land boundary and then continue relying solely on those coasts whose

maritime projections overlap in the relevant area, th at is to say in the area to be delimited. This

means that it is necessary to iden tify on each relevant coast the “point on the coast of each of the

two Parties beyond which the coast in question no longer has a relationship with the coast of the

other Party relevant for... delimit ation”, as the Court said in 1982 ( Continental Shelf

(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982 , pp.61-62, para.75). And that

is because, to quote from the same case, “the submarine extension of any part of the coast of one

48
Award of 30 June 1977, para. 96. - 32 -

Party which, because of its geographic situation, cannot overlap with the extension of the coast of

the other” should be excluded (ibid., p. 61, para. 75).

42 18. An analysis of the coastal configuration thus identified must then be undertaken. As the

Court said in the Cameroun/Nigeria case: “The geographical configuration of the maritime areas

that the Court is called upon to delimit is a given. It is not an element open to modification by the

Court but a fact on the basis of which th e Court must effect the delimitation.” ( Land and Maritime

Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening),

Judgment, I.C.J. Reports 2002 , pp.443-445, para.295.) Pursuant to those same principles, it is

necessary, beyond the relevant coasts, to acknow ledge the presence of features having a direct

impact on the dividing line, and that now brings me to the islands.

(2) A pre-eminent geographical circumstance: the presence of islands

19. What I referred to a short while ago as “N icaragua’s island paradox” consists of both its

initial disregard of the islands and the belated interest it claims in them.

20. In response to Nicaragua’s confused a nd self-contradictory position, the law calls for

recourse to simple, clear considerations, expressed in three questions.

(1) To focus on the principal features ⎯ Savanna Cay, South Cay, Bobel Cay, and Port Royal Cay,

lying 28, 41, 27 and 32 nautical miles from the mouth of the Coco River 4, respectively: are

they or are they not islands within the meani ng of Article 121 of the Convention on the Law of

the Sea?

(2) If so, are these islands entitled to their own maritime areas?

(3) If so, in light of these features’ geographical pos ition vis-à-vis the “15th parallel” (14º 59.8'), is

the delimitation line likely to be affected if they are taken into account?

21. The “ délabyrinthage” (“de-labyrinthing”), to use a word invented by Molière 5, of

Nicaragua’s inconsistent positions would seem to yield the following answer to the first question,

“are the cays islands”: the initial description, “islet s and rocks”, employed by the Applicant in its

Memorial did not prevent it in its Reply from conferring island status on these features. It then

49
For the sake of precision, it is the fleuve Coco in French, because it is a watercourse emptying into the sea.
5Les femmes savantes (The Learned Ladies). - 33 -

43 merely states that it considers them small, ve ry small even, which, it goes on to tell us, should

prevent them from being taken into account in a delimitation exercise . 51

22. We would just observe that ther e are two problems here: first, island status, which the

cays do in fact have; second, the issue as to whet her, given their small size, which can only be

judged in situ, they will ultimately be capable of influe ncing the delimitation. Let us not confuse

the two and let us for the moment go no further th an the first: the cays are islands. Nicaragua

eventually admits so. Honduras has always said so.

23. Let us then turn to the second question: are islands entitled by law to their own maritime

areas? The response is common knowledge; it is in th e affirmative and an island’s size is not in

itself legally significant. To ascertain this, one need only reread the relevant provision of the

Montego Bay Convention. It was in reliance on it that this Court stated in 2001:

“In accordance with Article121, para graph2, of the 1982 Convention on the
Law of the Sea, which reflects customary international law, islands, regardless of their
size, in this respect enjoy the same stat us, and therefore generate the same maritime
rights, as other land territory.” ( I.C.J. Reports 2001, Maritime Delimitation and

Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment ,
p. 97, para. 185.)

24. As the cays are islands, albeit small ones, it follows that each is entitled to a territorial

sea, an economic zone and a continental shelf. And this is in contradistinction to the case of

features which are merely rocks, such as Hall Rock or Cock Rock in the same area. Pursuant to the

third paragraph of that same Article 121, they have no right to generate their own maritime areas.

We can now better understand why Nicaragua pref erred from its Memorial onwards to lump

together under a single heading of its own choosing, that of “islets and rock s”, “features” which it

first claimed and then paradoxically described as serving no purpose.

25. And yet there lies the res ponse to the third question: as a general rule, an island must,

regardless of its size, be taken into consideration if it is liable in fact to have an effect on the course

of the dividing line. Here again, I am not the one to proclaim this; the Court is, for instance in

44 paragraph 195 of its Judgment in the case already frequently cited as Qatar v. Bahrain. The Court

states in respect of the maritime feature of Qit’at Jaradah, also very small, “that it is an island

51
RN, p. 32, para. 3.17. - 34 -

which should as such be taken into considera tion for the drawing of the equidistance line” ( ibid.,

p. 99).

26. Accordingly, to the questions asked a little while ago there are two fundamental answers:

(a) the cays referred to earlier are entitled to their own maritime areas; (b) they must be taken into

consideration for the delimitation.

The Parties maintain rather conflicting positions on these points.

⎯ As we have already seen, Nicaragua, having first asserted a claim to the island features

concerned, denies them any effect on the course of the dividing line 52.

⎯ Honduras, for its part, does not deny the importan ce of the islands. On the contrary, it argues

that the line advocated by Nicar agua is illegal and in any even t inequitable notably as a result

of the fact that the line does not respect Honduras’s ownership of these island features.

27. The relevant historical circumstances are such because the inhabitants have always been

required to come to terms with this territory’s nature and configura tion ever since they first settled

there. The historical circumstances are of course of that much more relevance in that the traditional

line originated in the distant p ast in the way in which the Spanish Crown apportioned authority on

either side of Cape Gracias a Dios between the Captaincy-General of Guatemala and the General

Command of Nicaragua.

28. Authority extending not only to mainland but also isla nd areas and therefore maritime

areas. Because already at that time, when the seas were the only medium for carrying out trade and

maintaining links with the mother country, as well as smuggling, the coastal power took a keen

interest in the sea and islands. And under the cedulas reales those areas were divided by the

so-called “15thparallel” line, a line which ⎯ it will be noted in passing ⎯ at the time

45 conveniently, and drawing admittedly on primitiv e geodesy, embodied the notion of a division

equidistant from the two, nearly symmetrical, sides of the cone whose point is Cape Gracias a Dios.

29. Thus, a way to apply on a regional scale, and using parallels, the same method previously

used on the global scale by Pope Alexander VI (Borgia), employing, for his part, meridians in his

famous Alexandrine bull. The scale changes but not the process. Under the Spanish Crown, the

52
RN, p. 32, para. 3.17. - 35 -

dividing lines, drawing inspiration from papal auth ority, thus often formed the sign of the cross!

(CR 2007 11, p. 41, para. 27.)

30. Now, the Chamber of the Court was of the view in 1992, in the El Salvador/Honduras:

Nicaragua intervening case, that it should begin with uti possidetis juris in maritime areas as well;

there is no reason why it should be any different in the present case. Honduras is not saying that

the continental shelf has devolved to it on the basis of uti possidetis; quite simply because in the

era of the Spanish Crown, the continental shelf did not exist, at least not legally speaking.

On the other hand, there were warships a nd merchant ships, sailing under any number of

flags, and their safety had to be ensured.

31. Thus we see the link uniting history and geogr aphy. As early as colonial times, all the

islands were distributed and any notion of terra nullius rejected. As for all the islands situated

above the 15thparallel, the Applicant has prove d unable, either last week or in its written

pleadings, to offer the slightest evidence that an y of them was ever placed under the authority of

the General Command of Nicaragua.

32. Thus, contrary to the Applicant’s insi nuation, Honduras is not seeking to substitute the

weight of history for the weight of the positive law of the sea. It wishes merely to show you, in the

context of the law of the sea, how the legacy from colonial times has, by way of a rule for the

handing down of territorial boundaries, right up to the contemporary era, governed the

apportionment of authority by an equitable method.

33. If this had not been so, Madam President, Members of the Court, one might wonder why

Nicaragua waited so long before proposing to its neighbour that it define another boundary. Even

assuming that the agreement proposed in 1977 had a purpose other than to formalize a de facto

46 agreement, the latter however having been the case, as seen from the text of the diplomatic Notes

53
commented on the other day by ProfessorGreenwood , how could Nicaragua have suffered an

inequitable situation in silence for 156 years?

53
CR 2007/6, pp. 24-25. - 36 -

No, Madam President, Members of the Court, th ere is no conflict or contradiction, let alone

any incompatibility, between citing history’s legacy and citing, as we must do, the law of the sea

applicable to delimitations as it stands today.

It is because that law is crystallized in the obligation to find an equitable solution that the

International Court must take account of all signs pointing the way to such a solution.

C. The legal circumstances

34. Professor Brownlie rightly recalled the other day that the applicable law must be applied

within the context of the case: there are legal facts which characterize the specific context in which

the other relevant circumstances must be taken into account. Quite apart from res judicata, which

should be borne in mind in connec tion with your Judgment of 1960 ( I.C.J. Reports 1960, p.192)

upholding the Arbitral Award of 1906, whose key importance for the terminus of the land boundary

Mr. Colson will tell you about again tomorrow, there are two types of legal circumstance which are

important because of their direct impact on the way in which the area to be delimited is to be dealt

with.

(1) The need to respect the rights of third parties in the region under consideration

35. This is directly linked to the existence in the area concerned of treaties concluded with

third parties by one or other of the Parties to the dispute, it being understood that the rights of third

parties must be protected and that the Court would apparently not have jurisdiction to draw a single

delimitation line disregarding, in particular, the rights of Colombia as established both by the

1928Treaty concluded with Nicaragua and by the 1986Treaty with Honduras. There is also the

Maritime Delimitation Treaty between Jamaica a nd Colombia of 12November1993 concerning

the same matter, which it is essential to take into account. It will be recalled that the recent Arbitral

Award between Barbados and Trin idad and Tobago also took into consideration existing treaties,

47 including one involving a third State party to the dispute, as relevant circumstances 5.

36. I will not dwell on this point ⎯ those treaties exist. The Court does not have to decide

whether the 1928 Treaty was validly denounced by Nicaragua, as that is a matter for another case

54
Arbitral Tribunal constituted pursuant to Art.287and in accordance with Ann.VII of the UNCLOS,
The Hague, 11 April 2006, pp. 103 et seq., paras. 339 et seq. - 37 -

to which it will revert shortly. Nor has the Court to consider here whether the 1986 Treaty between

Honduras and Colombia is opposable to Nicaragua. But the Court has a duty in this as in other

cases to respect the rights of third parties in its ruling, whose rights it cannot prejudge. I now come

to the second important legal consideration which is a relevant circumstance, namely, the conduct

of the Parties.

(2) The importance of the conduct of the Parties

37. This cannot be separated from the history. It falls within the continuity of the colonial

legacy passed down by way of uti possidetis. The consideration of conduct, irrespective of the

conclusions the Court has drawn from it in practi ce, can be found in a number of its judgments on

maritime delimitation. And this conduct bears upon two issues in the present case:

⎯ firstly, the conduct of the Parties in relation to the exercise of sovereign rights over the islands;

⎯ secondly, the conduct of the Parties in relation to the boundary of their respective maritime

areas.

38. (a) Called upon primarily to draw a maritime de limitation line between the Parties, it is

important for the Court to know which of th e two countries exercises eff ective control over the

island features concerned as understood by the sole arbitrator, Max Huber, in the pivotal Island of

Palmas case 55.

With respect to formations whose small si ze has been amply emphasized, reference has

already been made, and I will not cite it any furt her, to the famous Judgment of the Permanent

Court of International Justice concerning Eastern Greenland ( Legal Status of Eastern Greenland,

Judgment, 1933, P.C.I.J. Series A/B No.53 , pp.45-46). However, it was on the basis of that

jurisprudence that your Court, in recent cases ruled upon in 2001 and 2002, namely, that between

Qatar and Bahrain ( Maritime Delimitation and Territorial Questions between Qatar and Bahrain

(Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001 , para. 198), and that between Indonesia

48 and Malaysia (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment,

I.C.J. Reports 2002 , para.134), had to consider the criteria for determining the exercise of

sovereignty over what might be called “confetti islands”.

55
PCA, Award of 4 April 1928, RIIA II, pp. 839-840 and RGDIP 1935, pp. 156 et seq. - 38 -

39. As we know, you regarded the fact that Bahrain had constructed a navigational aid on

Qit’at Jaradah as sufficient to demonstrate, to Bahrain’s advantag e, that that island belonged to it

(Maritime Delimitation and Territorial Ques tions between Qatar and Bahrain (Qatar v. Bahrain),

Merits, Judgment, I.C.J. Reports 2001 , paras.197-198). We also know how Malaysia obtained

satisfaction in its dispute with Indonesia regarding the attribution of sovereignty over Pulau Ligitan

and Pulau Sipadan.

40. Now Philippe Sands has already taken you, in his arguments yesterday, on a tour of the

islands and cays where fishermen of various nationalities put in, subject to authorizations issued by

the Honduran authorities. He has also drawn your attention to manifest ations of sovereignty

appropriate to this type of territory. I will thus refrain from enumerating them again.

41. Contrary to what Nicaragua asserts, it is not because Honduras allegedly has a

“territorial” and “sovereignty-focused” conception of maritime delimitation that it is requesting you

to take account of the effectivité of its control over the islands in issue; it is because of the impact

on the delimitation line, to which I will turn in a minute.

42. Incidentally, Nicaragua’s continued acquiesc ence in the appurtenance of the islands to

Honduras until a quite recent date needs to be seen in the light of the fact, mentioned yesterday,

that as late as April 1998 Nicaragua saw no particul ar obstacle to participating in the adoption, as a

Central American country, of the free-trade treat y concluded between the countries of the region

and the Dominican Republic or in ratifying it in 20 01. In that treaty, it was, however, clearly

stipulated that its territorial scope included, as far as Honduras was concer ned, Palo de Campeche

Cay, the Media Luna archipelago and a series of nearby shoals. We might, incidentally, note how

the dates tally. That treaty came into force for Nicaragua in 2002 and it was only in 2001, in its

Memorial in the present case, that Nicaragua openly expressed its initial claim over islands, the

49 possession of which by its Honduran neighbour it ha d never previously dreamed of challenging,

except in a Note in 1994, to which there was no follow-up 56.

43. (b) As regards consideration of the conduct of th e Parties with respect to the area to be

delimited, it has been recognized at least since the North Sea fisheries case between the United

56
CMH, Vol. I, pp. 52-53, para. 3.50; MN, Vol. 2, Ann. 49, pp. 116-117. - 39 -

Kingdom and Norway ( Fisheries, Judgment, I.C.J. Reports 1951 , pp.116 et seq.)— which was

indeed a case involving the determination of ma ritime areas, having regard to the straight

baselines — that an absence of protest amounts to co nsolidation of the title to the detriment of the

other Party. Moreover, in a case directly relate d to maritime delimitation, that concerning the

continental shelf between Tunisia and Libya (Continental Shelf (Tunisia/Libyan Arab Jamahiriya),

Judgment, I.C.J. Reports 1982), the Court also had occasion to find that the conduct of the Parties,

precisely with respect to the same type of practices as in the case at hand, namely the determination

of respective oil exploration concessions, constituted proof of implicit agreement or, at any rate, of

recognition by the party which does not protest.

44. In the Gulf of Maine case, the Chamber of the Court decided that an examination of the

Parties’ conduct was relevant (I.C.J. Reports 1984, pp. 303 et seq., paras. 126 et seq.), although its

response was ultimately in the negative. The same is true of the Jan Mayen case (I.C.J. Reports

1993, p. 75, para. 82).

45. Now, as you will hear again in greater detail tomorrow from my friend PhilippeSands,

that is what it was: acquiescence. Not only did Ni caragua not protest against the permits issued by

Honduras north of the 15th parallel, but it used this line itself in issuing its own permits 57. The

assertion of ProfessorRemiroBrotóns that the upper limits of those permits remained open is not

correct, as ProfessorSands will show you when he follows me. Consequently, it is difficult to

imagine a clearer and more unashamed admission of recognition that the maritime delimitation line

is indeed that one. Lastly, let us recall that the Court’s Judgment in the Cameroon v. Nigeria:

Equatorial Guinea intervening case, far from denying the importance the oil concessions were
50
given in 1982, actually upholds it, at least where, as is the case in the current dispute, there is an

agreement between the parties, whether express or tacit, that is to say de facto.

46. In connection with what I have just said, is there really any need to add that the principle

of good faith applies in our case, as in any other.

57
See CMH, pp. 98-102, paras. 6.24-6.28; RH, pp. 81-85, paras. 5.04-5.05. - 40 -

47. Similarly, for Honduras it seems inconcei vable that Nicaragua should now unilaterally

call into question a maritime boundary which its own practice had consolidated since its origins as

a sovereign State.

II. Criteria and methods of delimitation

48. The second part of my presentation will be shorter, as the delimitation method is, in a

sense, the result of all of the foregoing. As I have said, the Parties agree that the method must give

rise to an equitable result.

49. They also agree that a single delimitation line must be drawn. With respect to such a

line, need I remind you that the Court observed, in the case concerning Maritime Delimitation and

Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), that “the concept of a single

maritime boundary does not stem from multilateral treat y law but from State practice . . . [I]t finds

its explanation in the wish of States to establis h one uninterrupted bounda ry line delimiting the

various . . . zones of maritime jurisdiction appertaining to them.” ( Merits, Judgment,

I.C.J. Reports 2001, p. 93, para. 173.)

50. But this finding prompted the Court i mmediately afterwards to conclude, echoing the

words of its Chamber in the Gulf of Maine case, that the delimitation “can only be carried out by

the application of a criterion, or combination of criteria, which does not give preferential treatment

to one of these... objects to the detriment of th e other, and at the same time is such as to be

equally suitable to the division of either of them” ( ibid.; Delimitation of the Maritime Boundary in

the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984 , p. 324,

para. 194).

51. On this basis, I will now examine two furt her points which seem to me at this stage to

synthesize the remarks concerning the legal prin ciples to be respected in the choice of a

delimitation method.

51 ⎯ The first is contained in an observation: that it is legally impossible to dissociate the

appurtenance of the islands from the determination of the dividing line.

⎯ The second concerns the choice of method, as indi cated by the applicable law and as has been

practiced by each of the Parties. - 41 -

A. Indissociability of identification of soverei gnty over the islands and determination of the
delimitation line

52. In the frequent cases where the maritime areas concerned include islands, the method

must result in the drawing of a line that respects the division of sovereignties established over those

islands. This is in application of the pr inciple that “the land dominates the sea” ( North Sea

Continental Shelf, Judgment, I.C.J. Reports 1969, p. 51, para. 96) and not the reverse. We are here

touching on the fundamental r eason why Honduras, ever since its Counter-Memorial, has focused

on the status of the islands.

53. The law and practice of the Court now seem to have been clarified, at least since your

Judgments in the 1985 Continental Shelf (Libyan Arab Jamahiriya/Malta) case ( Judgment, I.C.J.

Reports 1985, particularly p.48, para.64) and in the 1993 Jan Mayen case (I.C.J. Reports 1993 ,

p. 60, para. 49); one should first apply, at least as a preliminary, provisional step, the test whereby

a median line is drawn, and ascertain thereafter whether special or relevant circumstances call for a

different delimitation.

54. Another way of reaching the same conclu sion as to the indissociable nature of the

appurtenance of the islands and de limitation entails referring to the equitable principles, one of the

most important of which, set forth as long ago as your Judgment of 1969, prohibits any

encroachment by one party on the natural prolongation of the other party. Applied to a single line,

this principle no longer relates only to the continen tal shelf but also to the other maritime areas

concerned. It is thus once again surprising that what I just called “Nicaragua’s island paradox”

means that it continues to call for the applicati on of a method without first taking into account the

ownership of the islands, despite having gradually accepted that identifying their owner was a

prerequisite.

55. In this connection, I think it useful to remind you of the illustration of this principle

provided by Professor Greenwood last Monday, even though, after me, it will fall to Mr. Colson to

explain to you in detail the method applied.

52 ⎯ You will see, in the graphic displayed on your screen, the equidistance line obtained if the

islands concerned are regarded as Honduran and also if each of them exerts its full effect.

[PMD2] - 42 -

⎯ You now see the result of the same operation if, applying the same method, the islands are

regarded as belonging to Nicaragua.

[PMD3]

56. You will thus have been able to ascertain that the two lines have, to say the least, nothing

in common.

Madam President, Members of the Court, you have once again had to turn to Honduras in

order to see the result of drawing a provisional equi distance line. To conclude, let us now turn to

the method chosen by each of the Parties.

B. The method chosen by each of the Parties

57. What method is to be adopted for the delimitation? The method is a means. The

equitable solution is an end. Th e former can be justified only in relation to the latter. And the

purpose of any delimitation procedure, as everyone ag rees, is to reach an equitable solution for all

the maritime areas to which it is applied. Now in the present state of positive law, as the Court

noted, inter alia , in its Qatar v. Bahrain Judgment: “[t]he most logical and widely practised

approach is first to draw provisionally an equidi stance line and then to consider whether that line

must be adjusted in the light of the existence of special circumstances.” ( Maritime Delimitation

and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J.

Reports 2001, p.58, para.176.) However, there too we must read the Court’s findings without

vitiating its intention; it explains immediately th ereafter: “The Court will further decide whether

the method to be chosen for this delimitation di ffers from or is similar to the approach just

outlined.” (Ibid.)

58. There can be no better way of putting it th an to say that what has thus become the

ordinary practice is the approach, but not necessar ily its result in terms of equidistance. The

“equidistance/special circumstan ces” rule remains a method, and not necessarily the obligatory

53 source of all delimitations; the Court does not ru le out the possibility of using other methods if

they are appropriate for reaching an equitable r esult. Thus, citing its own Judgment in the case

concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) , the Court recalled with regard

to Qatar v. Bahrain that: - 43 -

“the equidistance method is not the only me thod applicable to the present dispute, and
it does not even have the benefit of a presu mption in its favour. Thus, under existing

law, it must be demonstrated that the equi distance method leads to an equitable result
in the case in question.” ( Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985 , p.47, para.63, cited in para.233 of the Qatar v.

Bahrain Judgment.)

59. In other words, the need to take account of the relevant circumst ances is in any event

implicit in the search for an equitable solution. But one does not inevitably reach that solution by

confining the role of those circumstances to one of correcting the equidistance. Furthermore, as the

Award recently made between Barbados and Trin idad and Tobago rightly stresses, the method for

reaching an equitable solution must always be chosen with a view to accommodating both the

58
predictability and the stability of the adjudication or award .

Le PRESIDENT: M. Dupuy, pourriez-vous a ller un tout petit plus lentement afin que

l'interprétation ne soit pas trop en retard sur ce que vous dites. Je vous en remercie.

M. DUPUY : Certainement.

60. In the present case, let us briefly exam ine the respective positions of Nicaragua and

Honduras with regard to the equidistance method to which I have referred. Contrary to what it

emphatically asserts, Nicaragua does not really apply that method. It is true that it draws upon it

very indirectly, albeit basing itself on arbitrar y presuppositions. In fact, Nicaragua has two

proposed “methods” for justifying its line: one based on bathymetry, the other on geometry; the

one is the result of an improbable morphology that is in any case irrelevant from the standpoint of

the law of the sea; the other derives from a misconception of the geographical reality. I shall now

revert one last time to the “Nicaraguan Rise”.

54 (1) The “Nicaraguan Rise”

61. It will quickly be seen that the reference to this submarine formation has nothing to do

with the equidistance method ⎯ except, perhaps, its very opportune location to support the

Nicaraguan conception of the delimitation. Offering evidence, moreover, of the decidedly volcanic

character of the opposing Party’s arguments, the re ference to the “Nicaraguan Rise” seems to have

undergone various seismic movements and shifts in the course of the Applicant’s pleadings.

58
Award of 11 April 2006, op. cit., supra, para. 232. - 44 -

Initially afforded spectacular prominence in Nicaragua’s Memorial, it seemed for a while almost to

vanish in its Reply, only to resurface, apparently intact, in Mr. Oude Elferink’s oral arguments last

week.

62. These tectonic upheavals in the northern shallows of the Caribbean Sea are of only very

relative interest to jurists. They conjure up only the fragile and discreet charm of outdated notions;

ah, those good old days, straddling the period between the 1945 Truman Proclamation and the

Judgment of the Court in the Tunisia/Libya case, during which one could still believe that the

jurists’ continental shelf, a natural prolongation of the State’s land territory into and under the sea,

as the Court had stated in 1969 (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 22,

para.19 and p.29, para.39), still remained faithfu l to that of the geomorphologists. Alas, those

times are now past and Nicaragua, nostalgically, seems still not to have quite found consolation for

their loss.

63. However, Madam President, Members of the Court, there are at least two reasons for

setting aside the bathymetric argument of the “Ni caraguan Rise” already briefly mentioned by my

colleague Mr. Quéneudec. The first is that, in ma tters of delimitation, the bathymetric criterion is

no longer accepted in the international law of the sea, at least within the outer limit of the exclusive

economic zone. To confirm this, one need only reread articles 74 (1) and 83 (1) of the 1982 United

Nations Convention in conjunction with its article 76, which defines the continental shelf.

Furthermore, these provisions are corroborated by your jurisprudence, which drew the appropriate

conclusions therefrom, as can be seen, as if in anticipation, as long ago as your Judgment of 1982:

“It is only the legal basis of the title to continental shelf rights ⎯ the mere distance from the

coast ⎯ which can be taken into account as possibly having consequences for the claims of the

Parties.” ( Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982 ,

55 p.48.para.48.) That tendency to abandon th e morphology of the sea-bed reliefs, encouraged by

the provisions of a convention that had not yet entered into force at the time but would

subsequently do so for the vast majority of ex isting States, was confirmed by the Court in the

dispute between Malta and Libya, since, in its Judgment, the Court found that “the distance

criterion must now apply to the continental shelf as well as to the exclusive economic zone...”

(Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 33, para. 34). - 45 -

64. Admittedly, in the new law of the sea, sp ecifically in Article76, paragraph3, of the

Convention, a reference still remains to the geomor phological dimension of the continental shelf.

However, it could not be applied in the instant case since it is valid only beyond the 200nautical

mile limit calculated from the baselines, and Mr. Quén eudec reminded you that that is not so in the

present case.

65. The second reason why the “Nicaraguan Rise” seems to have the ephemeral consistency

of a mirage is that, even supposing this criterion was still valid and applicable in the present case, it

would apply, if at all, only to part of the continental shelf.

Now, the Court must draw a single line separ ating both the water column, the sea-bed and

the soil and subsoil of the sea for each of the two States. Decidedly, Nicaragua seems not to have

plumbed the depths of its deep-sea arguments, preferring to confine itself to their surface waters,

and its attachment to the bathymetric argument can only be explained by the extreme dearth of its

arguments in support of its misleading bisector line.

(2) The bisector line

66. This method, more or less tacked on to the bathymetric argument, has already been

shown by some of my colleagues to be not only arbitrary, but also untenable: in particular, it is

based, as has already been said, not on a “smoot hing off” of Honduran territory but on planing

away large parts of it.

[PMD4 (CJG28); PMD5 (CJG27)]

67. It is difficult to see how the Court could view such an approach as not “completely

refashioning nature”. In particular, it respects none of the genuinely relevant characteristics of the

configuration of the coasts, a factor which, as the recent Arbitral Award between Barbados and

56 Trinidad and Tobago, relying on your own juri sprudence, makes clear in a timely reminder,

provides the basis and identifies the scope of the legal title of each State to the maritime areas

59
concerned .

68. There could be nothing less Cartesian th en, less rational even, than the way Nicaragua

conceives its “discourse on the method”! This combination of two arbitrary elements, one

59
Ibid., paras. 231-239. - 46 -

discovered on the sea-bed and the other inspiring the bisector line of an improbable angle, has no

bearing on the calculation of the median line betwee n the territory of the two adjacent States. In

reality, Nicaragua wants to make us dance to th e “equidistance-relevant circumstances” tune, when

it is in fact playing an entirely different one. Admittedly, the sea is a great source of inspiration . . .

69. As for Honduras, it has never concealed the fact that the so-called traditional line which

it relies upon is not based on equidistance. Its line is born of a marriage of history and geography.

It is they which have given rise to State practice. Such is the essence of the “traditional line”:

respect by both Parties for the legacy of the Spanish Crown, and also for the geography of the areas

over which it held sway.

70. That said ⎯ and I emphasize this point, to which Mr. Colson will revert ⎯ Honduras is

anything but unaware of the need to verify the equitable nature of the delimitation to which it

believes it is entitled. It does so by comparing th e “traditional line” with what would result, were

we to draw an equidistance line taking into account all the relevant circumstances; beginning with

the presence of the islands to the north of the 15th parallel which are under its jurisdiction.

71. At this point, however, Honduras’s pos ition can ultimately be summarized as follows:

(a)as it has always done, the line must at least re spect the appurtenance of the islands to the

maritime areas it controls; (b) it should not result in any disproportionate effect that would cause it

to deviate from the so-called “15thparallel” (14° 59.8') turning downwards, that is, by and large,

towards the south-east.

[M iD2]

57 72. If there is anything special about th e present case, it is that in it we see ⎯ a rare event, it

must be said ⎯ a sovereign State — Honduras — voluntarily relinquishing the advantages it would

gain from the application of the equidistance method because it considers that in this instance one

prime relevant circumstance prevails over all othe rs, that bequeathed by a long-standing tradition

which respects the stability of boundaries.

Consequently, to conclude on this point, three assertions can be made: (1) equidistance is

the mot satisfactory method, but it is not the only one; (2) despite what it says, Nicaragua does not

apply equidistance; it distorts it in two ways — in depth and on the surface; and (3)Honduras

does not claim to apply the equidistance method to draw the dividing line, but it does use it to - 47 -

verify the equitable nature of that line. What counts above all is the equity ⎯ infra legem ⎯ of the

solution adopted. And it is achieved, precisely, by ascribing to relevant circumstances in the

current case the weight and also the weighting which th ey warrant in order to arrive at an equitable

result.

73. Thus, Honduras does not forget that the cays are small. And it does therefore make them

produce an effect, since the traditional delimitati on line, as in the era of the Spanish Crown,

respects the attribution of effective control over the islands to Honduras. Yet Honduras does not

make those cays produce anything like the full effe ct which they might have on an equidistance

line, which would respect their right to their own territorial sea, their own economic zone and their

own continental shelf. David Colson will return to this point. The line of the 15thparallel

(14°59.8') does not give the features concerne d the full effect which they would have on an

equidistance line calculated from their low water ba seline. It does not do so precisely because it

dates back to a time before that of the mariti me areas recognized by the modern law of the sea, but

also because the tradition drew on what I might call intuitive equity.

74. For all that, Honduras remains convinced that giving these “maritime features” their full

effect or even a more limited effect on the line (which would in this case be an equidistance line)

would lead to an inequitable result. That w ould cause the dividing line to turn very markedly

58 south-eastwards, resulting in an undue encroachme nt on Nicaragua’s maritime areas, a line not

sanctioned by tradition in the region.

75. Does this therefore mean that Honduras st rays from the facts and, more importantly,

from the jurisprudential practice of the new law of the sea? Apparently not. And I will refer once

more to Qit’at Jaradah in the Qatar v. Bahrain case. We find that the Court, while acknowledging

Bahrain’s sovereignty over that island by virtue of activities similar to those in which Honduras

engages in the islands concerned, inter alia navigational aid, did not ultimately use it in

determining the dividing line. We see here, not the operation of a hard and fast rule, but the taking

into account, in concreto, of the effect which taking such an island feature into account would have

on the maritime boundary in that case. In fact, the Court acted as it did by contrasting the very

small size of that island with the disproportionate and thus inequitable impact that the opposite

outcome would have had on the resulting line. In so doing, it referred to its earlier jurisprudence in - 48 -

the case concerning the North Sea Continental Shelf (I.C.J. Reports 1969 , p.36, para.57) and in

the Libya/Malta (I.C.J. Reports 1985, p. 48, para. 57) case.

76. Such an attitude corresponds exactly to Honduras’s position in the current case with

respect to the way it views the role of the small islands lying immediately north of the

“15th parallel” (14° 59.8'). The traditional line in any case respects the appurtenance of the islands

north of that parallel to Honduras. Whether it chooses to go further than Honduras is asking, as

international jurisprudence allows it to do, will be for the Court to decide.

77. Lastly, Madam President, Members of the Court, I would not like to end this presentation

on the applicable law without recalling a principle. True, it is not an inviolable principle and there

may be numerous exceptions to it. It is noneth eless worth bearing it in mind and considering in

each case concerned whether there are sufficient reasons for disregarding it. This principle, which,

as your jurisprudence clearly shows, has also insp ired it in cases involving maritime areas, is the

principle of stability. As long ago as the Aegean Sea Continental Shelf case (I.C.J. Reports 1978,

pp. 35-36, para. 85), the Court excluded the idea that the fundamental change of circumstances rule

could be applied to boundary agreements. In the Qatar/Bahrain case, you rejected on the same

59 grounds Bahrain’s belated claim that it was an ar chipelago State, although it had not previously

made such a claim when the occasion arose ( Maritime Delimitation and Territorial Questions

between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001 , p.96,

para.183). In the recent Arbitral Award on the delimitation between Barbad os and Trinidad and

Tobago, the Permanent Court of Arbitration, presided over by a former President of this Court, also

60
stressed the need for stability in maritime delimitation .

78. Thus, Madam President, Members of the Court, you will have noted that the law

applicable in this area is not at variance with the traditional boundary line, but, on the contrary,

lends weight to its continued existence. Trad ition can sometimes be a good thing, provided it can

renew itself. Rather than the telluric upheavals that appear to have our opponents’ argumentation

tied up in conflicting impulses, Honduras prefers the tr anquillity of a delimitation with its basis in

history, its support in geography and its durability in the respect of sovereignty.

60
Op. cit., para. 232. - 49 -

Thank you, Madam President. And with your permission we thus conclude Honduras’s oral

arguments for this morning.

Le PRESIDENT : Je vous remercie infiniment, M. Dupuy.

L'audience est à présent levée. Les audiences se poursuivront demain matin à 10 heures.

L'audience est levée à 13 heures

___________