Summary of the Judgment of 8 October 2007

INTERNATIONAL COURT OF JUSTICE

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Summary
Not an official document

Summary 2007/4
8 October 2007

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras)

Summary of the Judgment of 8 October 2007

Chronology of the procedure and submissions of the Parties (paras. 1-19)

On 8 December 1999 Nicaragua filed an A pplication instituting proceedings against
Honduras in respect of a dispute relating to the delimitation of the maritime areas appertaining to

each of those States in the Caribbean Sea.

In its Application, Nicaragua sought to found the jurisdiction of the Court on the provisions
of ArticleXXXI of the American Treaty on Paci fic Settlement (officially known as the “Pact of

Bogotá”), as well as on the declarations accepting the jurisdiction of the Court made by the Parties,
as provided for in Article 36, paragraph 2, of the Statute of the Court.

Since the Court included upon the Bench no judge of the nationality of either of the Parties,
each Party proceeded to exercise its right conferred by Article31, paragraph3, of the Statute to

choose a judge adhoc to sit in the case. Nicaragua cho se Mr.GiorgioGaja and Honduras first
chose MrJ.ulGonzálezCampos, who resigned on 17 Augus2t006, and subsequently
Mr. Santiago Torres Bernárdez.

By an Order dated 21March2000 the Presi dent of the Court fixed 21March2001 and

21 March 2002, respectively, as the time-limits for the filing of the Memorial of Nicaragua and the
Counter-Memorial of Honduras. Those pleadings were duly filed within the prescribed time-limits.

By an Order of 13 June 2002, the Court authorized the submission of a Reply by Nicaragua
and a Rejoinder by Honduras, and fixed 13Janua ry2003 and 13August2003 as the respective

time-limits for the filing of those pleadings. The Reply of Nicaragua and the Rejoinder of
Honduras were filed within the time-limits so prescribed.

Public hearings were held between 5 and 23 March 2007. At the conclusion of the oral
proceedings, the Parties presented the following final submissions to the Court:

On behalf of the Government of Nicaragua,

“Having regard to the considerations set forth in the Memorial, Reply and
hearings and, in particular, the evidence relating to the relations of the Parties, - 2 -

May it please the Court to adjudge and declare that:

The bisector of the lines representing the coastal fronts of the two Parties as
described in the pleadings, drawn from a fixed point approximately 3miles from the
river mouth in the position 15°02'00"N and 83°05'26"W, constitutes the single
maritime boundary for the purposes of the delimitation of the disputed areas of the

territorial sea, exclusive economic zone a nd continental shelf in the region of the
Nicaraguan Rise.

The starting-point of the delimitation is the thalweg of the main mouth of the

River Coco such as it may be at any given moment as determined by the Award of the
King of Spain of 1906.

Without prejudice to the foregoing, the Court is required to decide the question

of sovereignty over the islands and cays within the area in dispute.”

On behalf of the Government of Honduras:

“Having regard to the pleadings, written and oral, and to the evidence submitted

by the Parties,

May it please the Court to adjudge and declare that:

1. The islands Bobel Cay, South Cay, Sa vanna Cay and Port Royal Cay, together
with all other islands, cays, rocks, banks and reefs claimed by Nicaragua which lie
north of the 15th parallel are under the sovereignty of the Republic of Honduras.

2. The starting-point of the maritime boundary to be delimited by the Court shall be a
point located at 14°59.8'N latitude, 83°05.8'W longitude. The boundary from
the point determined by the Mixed Co mmission in 1962 at 14°59.8'N latitude,
83°08.9'W longitude to the starting-point of the maritime boundary to be

delimited by the Court shall be agreed between the Parties to this case on the basis
of the Award of the King of Spain of 23 December 1906, which is binding upon
the Parties, and taking into account the changing geographical characteristics of
the mouth of the river Coco (also known as the river Segovia or Wanks).

3. East of the point at 14° 59.8' N latitude, 83° 05.8' W longitude, the single maritime
boundary which divides the respective territorial seas, exclusive economic zones
and continental shelves of Honduras and Nicaragua follows 14° 59.8' N latitude, as

the existing maritime boundary, or an ad justed equidistance line, until the
jurisdiction of a third State is reached.”

Geography (paras. 20-32)

The Court notes that the area within which the de limitation sought is to be carried out lies in
the basin of the Atlantic Ocean between 9° to 22°N and 89° to 60° W, commonly known as the
Caribbean Sea. The Nicaraguan coast runs slightly west of south after Cape Gracias a Dios all the

way to the Nicaraguan border with CostaRica excep t for the eastward protrusion at PuntaGorda.
The Honduran coast, for its part, runs generally in an east-west direction between the parallels
15ºto 16º of North latitude. The Honduran seg ment of the Central American coast along the
Caribbean continues its northward extension beyond CapeGraciasaDios to CapeFalso where it

begins to swing towards the west. At CapeCamarón the coast turns more sharply so that it runs
almost due west all the way to the Honduran border w ith Guatemala. The two coastlines roughly
form a right angle that juts out to sea. The convexity of the coast is compounded by the cape

formed at the mouth of the RiverCoco, which ge nerally runs east as it nears the coast and meets - 3 -

the sea at the eastern tip of Cape GraciasaDios. CapeGraciasaDios marks the point of
convergence of both States’ coastlines. It abuts a concave coastline
on its sides and has two points,

one on each side of the margin of the River Coco separated by a few hundred metres.

The continental margin off the east coast of Nicaragua and Honduras is generally termed the
“Nicaraguan Rise”. It takes the form of a relativ ely flat triangular shaped platform, with depths

around 20m. Approximately midway between the coast of those countries and the coast of
Jamaica, the Nicaraguan Rise terminates by deepening abruptly to depths of over 1,500 m. Before
descending to these greater depths the Rise is br oken into several large banks, such as Thunder
Knoll Bank and Rosalind Bank (also known as Rosalinda Bank) that are separated from the main

platform by deeper channels of over 200 m. In th e shallow area of the ridge close to the mainland
of Nicaragua and Honduras there are numerous reefs, some of which reach above the water surface
in the form of cays.

Cays are small, low islands composed largely of sand derived from the physical breakdown
of coral reefs by wave action and subsequent reworking by wind. Larger cays can accumulate
enough sediment to allow for colonization and fixati on by vegetation. The insular features present
on the continental shelf in front of CapeGraciasa Dios, to the north of the 15thparallel, include

Bobel Cay, Savanna Cay, Port Royal Cay and South Cay, located between 30 and 40 nautical miles
east of the mouth of the River Coco.

With regard to the geomorphology of the mouth of the RiverCoco, the longest river of the

Central American isthmus, the Court notes that it is a typical delta which forms a protrusion of the
coastline forming a cape: Cape Gracias a Dios. All deltas are by definition geographical accidents
of an unstable nature. Both the delta of the Rive r Coco and even the coastline north and south of it
show a very active morpho-dynamism. The result is that the river mouth is constantly changing its

shape, and unstable islands and shoals form in the mouth where the river deposits much of its
sediment.

Historical background (paras. 33-71)

The Court gives a brief account of the history which forms the background of the dispute
between the Parties (only parts of which are referred to below).

It notes that upon gaining independence from Spain in 1821, Nicaragua and Honduras
obtained sovereignty over their respective territory including adjacent islands along their coasts,
without these islands being identified by name . On 7 October 1894 Nicaragua and Honduras
successfully concluded a general boundary tr eaty known as the Gámez Bonilla Treaty which

entered into force on 26December 1896. ArticleII of the Treaty, according to the principle of
uti possidetis juris, provided that “each Republic is owner of the territory which at the date of
independence constituted respectively, the provinces of Honduras and Nicaragua”. Article I of the
Treaty further provided for the establishment of a Mixed Boundary Commission to demarcate the

boundary between Nicaragua and Honduras. The Commission fixed the boundary from the Pacific
Ocean at the Gulf of Fonseca to the Portillode Teotecacinte, which is located approximately one
third of the way across the land territory, but it was unable to determine the boundary from that
point to the Atlantic coast.

Pursuant to the terms of ArticleIII of th e Gámez-Bonilla Treaty, Nicaragua and Honduras
subsequently submitted their dispute over the re maining portion of the boundary to the King of
Spain as sole arbitrator. KingAlfonsoXIII of Spain handed down an Arbitral Award on

23December1906, which drew a boundary fro m the mouth of the RiverCoco at Cape
GraciasaDios to Portillo de Teotecacinte. Nicaragua subsequently ch allenged the validity and
binding character of the Arbitral Award in a Note dated 19March1912. After several failed

attempts to settle this dispute and a number of boundary incidents in 1957, the Council of the - 4 -

Organization of American States (OAS) took up the issue that same year. Through the mediation
of an ad hoc Committee established by the Council of the OAS, Nicaragua and Honduras agreed to

submit their dispute to the International Court of Justice.

In its Judgment of 18 November 1960, the In ternational Court of Justice found that the
Award made by the King of Spain on 23 December 1906 was valid and binding and that Nicaragua

was under an obligation to give effect to it.

As Nicaragua and Honduras could not thereafter agree on how to implement the
1906Arbitral Award, Nicaragua requested the intervention of the Inter-American Peace

Committee. The Committee subsequently estab lished a Mixed Commission which completed the
demarcation of the boundary line with the place ment of boundary markers in 1962. The Mixed
Commission determined that the land boundary woul d begin at the mouth of the RiverCoco, at
14° 59.8' N latitude and 83° 08.9' W longitude.

From 1963 to 1979, Honduras and Nicaragua enjo yed friendly relations. In 1977 Nicaragua
initiated negotiations on matters relating to the maritime boundary in the Caribbean. However
these negotiations made no progress. In the period that followed relations between the two

countries deteriorated. Numerous incidents involvi ng the capture and/or attack by each State of
fishing vessels belonging to the other State in the vicinity of the 15th parallel were recorded in a
series of diplomatic exchanges. Several mixe d commissions were established with a view to
finding a resolution to the situation but were unsuccessful in their attempts.

On 29 November 1999, Nicaragua filed an application instituting proceedings against
Honduras as well as a request for the indication of provisional measures before the Central
American Court of Justice. This followed Honduras’s expressed intention to ratify a 1986Treaty

on maritime delimitation with Colombia in whic h the parallel 14°59'08" to the east of the
82nd meridian is given as the boundary line between Honduras and Colombia. In its Application,
Nicaragua asked the Central American Court of Ju stice to declare that Honduras, by proceeding to
the approval and ratification of the 1986 Treaty, was acting in violation of certain legal instruments

of regional integration, including the Tegucigalpa Protocol to the Charter of the Organization of
Central American States. In its request for the indication of provisional measures, Nicaragua asked
the Central American Court of Justice to orde r Honduras to abstain from approving and ratifying
the 1986Treaty, until the sovereign interests of Ni caragua in its maritime spaces, the patrimonial

interests of Central America and the highest interests of the regional institutions had been
“safeguarded”. By Order of 30November1999 the Central American Court of Justice ruled that
Honduras suspend the procedure of ratification of the 1986 Treaty pending the determination of the

merits in the case.

Honduras and Colombia continued the ratification process and on 20December1999
exchanged instruments of ratification. On 7Ja nuary2000, Nicaragua made a further request for
the indication of provisional measures asking the Central American Court of Justice to declare the

nullity of Honduras’s process of ratification of the 1986 Treaty. By Order of 17 January 2000, the
Central American Court of Justice ruled that Honduras had not complied with its Order on
provisional measures dated 30Novemb er1999 but considered that it did not have jurisdiction to

rule on the request made by Nicaragua to declare the nullity of Honduras’s ratification process. In
its judgment on the merits, on 27 November 2001 the Central American Court of Justice confirmed
the existence of a “territorial patrimony of Central America”. It further held that, by having ratified
the 1986 Treaty, Honduras had infringed a number of provisions of the Tegucigalpa Protocol to the

Charter of the Organization of Central American States, which set out, inter alia , the fundamental
objectives and principles of the Central American In tegration System, including the concept of the
“territorial patrimony of Central America”.

Throughout the 1990s several diplomatic Notes were also exchanged with regard to the
Parties’ publication of maps concerning the area in dispute. - 5 -

Positions of the Parties (paras. 72-103)

⎯ Subject-matter of the dispute

In its Application and written pleadings Nicara gua asked the Court to determine the course
of the single maritime boundary between the areas of territorial sea, continental shelf and exclusive

economic zone appertaining respectively to Ni caragua and Honduras in the Caribbean Sea.
Nicaragua states that it has consistently maintained the position that its maritime boundary with
Honduras in the Caribbean Sea has not been delimit ed. During the oral proceedings, Nicaragua
also made a specific request that the Court pro nounce on sovereignty over islands located in the

disputed area to the north of the boundary line claimed by Honduras running along the 15th parallel
(14° 59.08' N latitude).

According to Honduras, there already exists in the Caribbean Sea a traditionally recognized

boundary between the maritime spaces of Honduras and Nicaragua “which has its origins in the
principle of uti possidetis juris and which is firmly rooted in the practice of both Honduras and
Nicaragua and confirmed by the practice of third States”. Honduras agrees that the Court should
“determine the location of a single maritime bounda ry” and asks the Court to trace it following the

“traditional maritime boundary” along the 15thparalle l “until the jurisdiction of a third State is
reached”. During the oral proceedings Honduras also asked the Court to adjudge that “[t]he islands
Bobel Cay, South Cay, Savanna Cay and Port RoyalCay, together with all other islands, cays,
rocks, banks and reefs claimed by Nicaragua whic h lie north of the 15thparallel are under the

sovereignty of the Republic of Honduras”. For the cl aims of the Parties, see sketch-map No. 2 in
the Judgment.

⎯ Sovereignty over the islands in the area in dispute

Nicaragua claims sovereignty over the islands and cays in the disputed area of the Caribbean
Sea to the north of the 15th parallel, including Bobel Cay, Savanna Cay, Port Royal Cay and

SouthCay. Honduras claims sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and
South Cay, in addition to claiming title over other smaller islands and cays lying in the same area.

Both States agree that none of the islands and cays in dispute were terra nullius upon
independence in 1821. However the Parties disagree on the situation thereafter. Nicaragua asserts

that these features were not assigned to either of the Republics and that it is impossible to establish
the uti possidetis juris situation of 1821 with respect to the cays. It concludes that recourse must be
had to “other titles” and in particular, contends that it holds original title over the cays under the

principle of adjacency. Honduras, for its part, claims that it has an original title over the disputed
islands from the doctrine of uti possidetis juris and that its title is confirmed by many effectivités.

⎯ Maritime delimitation beyond the territorial sea

Nicaragua’s line: bisector method

The Court notes that Nicaragua proposes a method of delimitation consisting of “the bisector

of the angle produced by constructing lines b ased upon the respective coastal frontages and
producing extensions of these lines”. Such a bisector is calculated from the general direction of the
Nicaraguan coast and the general direction of th e Honduran coast. These coastal fronts generate a
bisector which runs from the mouth of the River Coco as a line of constant bearing

(azimuth52°45'21") until intersecting with the boundary of a third State in the vicinity of
Rosalind Bank. - 6 -

Sketch-map No. 2 in the Judgment - 7 -

Honduras’s line: “traditional boundary” along the 15th parallel

Honduras, for its part, asks the Court to confirm what it claims is a traditional maritime
boundary based on uti possidetis juris running along the 15th parallel between Honduras and
Nicaragua in the Caribbean Sea and to continue that existing line until the jurisdiction of a third
State is reached. Were its contentions as to the 15th parallel not to be accepted by the Court,

Honduras asks alternatively that the Court trace an adjusted equidistance line, until the jurisdiction
of a third State is reached.

⎯ Starting-point of the maritime boundary

Both Parties agree that the terminus of the land boundary between Nicaragua and Honduras
was established by the 1906 Arbitral Award at the mouth of the principal arm of the River Coco.
The Mixed Boundary Commission determined in 1962 that the starting-point of the land boundary

at the mouth of the River Coco was situated at 14° 59.8' N latitude and 83° 08.9' W longitude.
Both Parties also agree that due to the accretion of sediments, this point has moved since 1962.

Nicaragua proposes, in its written pleadings, that the starting-point of the maritime boundary

be set “at a prudent distance”, namely 3 nautical miles out at sea from the actual mouth of the River
Coco on the bisector line. Nicaragua initially suggested that the Parties woul d have to negotiate “a
line representing the boundary between the point of departure of the boundary at the mouth of the
RiverCoco and the point of departure from which the Court will have determined the [maritime]

boundary line”. While leaving that proposal open, Nicaragua, in its final submissions, asked the
Court to confirm that: “[t]he starting-point of th e delimitation is the thalweg of the main mouth of
the River Coco such as it may be at any given moment as determined by the Award of the King of
Spain of 1906”. Honduras accepts a starting-point of the boundary “at 3miles from the terminal

point adopted in 1962” but argues that the seaward fixed-point should be measured from the point
established by the 1962 Mixed Commission and located on the 15th parallel.

⎯ Delimitation of the territorial sea

Nicaragua states that the delimitation of th e territorial sea between States with adjacent
coasts must be effected on the basis of the prin ciples set out in Article15 of the United Nations
Convention on the Law of the Sea (UNCLOS). In the view of Nicaragua, in the present case

however, it is technically impossible to draw an equidistance line because it would have to be
entirely drawn on the basis of the two outermost points of the mouth of the river, which are
extremely unstable and continuous ly change position. Thus, according to Nicaragua, the bisector

line should also be used for the delimitation of the territorial sea.

Honduras agrees with Nicaragua that there are “special circumstances” which, under
Article 15 of UNCLOS “require a delimitation by a line other than a strict median line”. However,

according to Honduras, while the configuration of the continental landmass may be one such
“special circumstance”, of far greater significance “is the established practice of the Parties in
treating the 15thparallel as their boundary from the mouth of the RiverCoco”. Honduras also
identifies as a factor of “the greatest significance . . . the gradual movement eastwards of the actual

mouth of the River Coco”. Honduras therefore s uggests that from the fixed seaward starting-point
the maritime boundary in the territorial sea should follow in an eastward direction the 15th parallel.

Admissibility of the new claim to sovereignt y over the islands in the area in dispute

(paras. 104-116)

The Court observes that, from a formal point of view, the claim relating to sovereignty over
the islands in the maritime area in dispute, as pr esented in the final submissions of Nicaragua, is a

new claim in relation to the claims presented in the Application and in the written pleadings. - 8 -

However, the mere fact that a claim is ne w is not in itself decisive for the issue of
admissibility. In order to determine whether a new claim introduced dur ing the course of the

proceedings is admissible the Court needs to consider whether, “although formally a new claim, the
claim in question can be considered as included in the original claim in substance” (Certain
Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Obj ections, Judgment, I.C.J. Reports
1992, pp. 265-266, para. 65). For this purpose, to fi nd that the new claim, as a matter of substance,

has been included in the original claim, it is not sufficient that there should be links between them
of a general nature. Moreover,

“[a]n additional claim must have been imp licit in the application (Temple of Preah

Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 36) or must arise ‘directly out of the
question which is the subject-matter of that Application’ (Fisheries jurisdiction
(Federal Republic of Germany v. Iceland), Merits, I.C.J. Reports 1974 , p.203,
para.72)” (Certain Phospha te Lands in Nauru (Nauru v. Australia), Preliminary

Objections, Judgment, I.C.J. Reports 1992, p. 266, para. 67).

Recalling that on a number of occasions it has emphasized that “the land dominates the sea”,
the Court observes that in order to draw a single maritime boundary line in an area of the Caribbean

Sea where a number of islands and rocks are located, it would have to consider what influence
these maritime features might have on the course of that line. To plot that line the Court would
first have to determine which State has sovereignty over the islands and rocks in the disputed area.
The Court is bound to do so whether or not a formal claim has been made in this respect. Thus the

claim relating to sovereignty is implicit in and arises directly out of the question which is the
subject-matter of Nicaragua’s Application, namely the delimitation of the disputed areas of the
territorial sea, continental shelf and exclusive economic zone.

The Court thus concludes that the Nicaraguan claim relating to sovereignty over the islands
in the maritime area in dispute is admissible as it is inherent in the original claim relating to the
maritime delimitation between Nicaragua and Honduras in the Caribbean Sea.

The critical date (paras. 117-131)

The Court recalls that, in the context of a maritime delimitation dispute or of a dispute
related to sovereignty over land, the significance of a critical date lies in distinguishing between

those acts performed à titre de souverain which are in principle relevant for the purpose of
assessing and validating effectivités , and those acts occurring after su ch critical date, which are in
general meaningless for that purpose, having been carried out by a State which, already having
claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing

those claims. Thus a critical date will be the dividing line after which the Parties’ acts become
irrelevant for the purposes of assessing the value of effectivités.

Honduras contends that there are two disputes, albeit related: one as to whether Nicaragua

or Honduras has title to the disputed islands; and the other as to whether the 15thparallel
represents the current maritime frontier between th e Parties. Nicaragua perceives it as a single
dispute.

Honduras observes that in resp ect of the dispute concerning sovereignty over the maritime
features in the disputed area there “may be more than one critical date”. Thus, “[t]o the extent that
the issue of title turns on the application of uti possidetis ”, the critical date would be 1821 ⎯ the

date of independence of Honduras and Nicaragua fr om Spain. For the purposes of post-colonial
effectivités, Honduras argues that the critical date cannot be “earlier than the da
te of the filing of
the Memorial ⎯ 21 March 2001 ⎯ since this was the first time that Nicaragua asserted that it had
title to the islands”. With regard to the di spute over the maritime boundary, Honduras maintains

that 1979, when the Sandinista Government came to power, constitutes the critical date, as up to
that date “Nicaragua never showed the slightest interest in the cays and islands north of the
15th parallel”. - 9 -

For Nicaragua, the critical date is 1977, when the Parties initiated negotiations on maritime
delimitation, following an exchange of letters by the two Governments. Nicaragua asserts that the

dispute over the maritime boundary, by implication, encompasses the dispute over the islands
within the relevant area and therefore the critical date for both disputes coincides.

Having examined the arguments of the Parties, the Court considers that in cases where there

exist two interrelated disputes, as in the present cas e, there is not necessarily a single critical date
and that date may be different in the two disputes. For these reasons, the Court finds it necessary to
distinguish two different critical dates which are to be applied to two different circumstances. One
critical date concerns the attribution of soverei gnty over the islands to one of the two contending

States. The other critical date is related to the issue of delimitation of the disputed maritime area.

With regard to the dispute over the islands , the Court considers 2001 as the critical date,
since it was only in its Memorial filed in 2001 that Nicaragua expressly reserved “the sovereign

rights appurtenant to all the islets and rocks claimed by Nicaragua in the disputed area”.

With regard to the dispute over the delimitation line, the Court finds that it is from the time
of two incidents involving the capture of fishing vessels in March 1982 and eliciting a diplomatic

exchange between the Parties that a dispute as to the maritime delimitation could be said to exist.

Sovereignty over the islands (paras. 132-227)

⎯ The maritime features in the area in dispute

In assessing the legal nature of the land featur es in the disputed area the Court notes that the
Parties do not dispute the fact that Bobel Cay, Savanna Cay, Port Royal Cay and South Cay remain

above water at high tide. They thus fall w ithin the definition and régime of islands under
Article 121 of UNCLOS (to which Nicaragua and Honduras are both parties).

With the exception of these four islands, th e Court states that there seems to be an

insufficiency in the information it would require in order to identify a number of the other maritime
features in the disputed area. In this regard little assistance was provided in the written and oral
procedures to define with the necessary precision the other “features” in respect of which the
Parties asked the Court to decide the question of territorial sovereignty.

The Court notes that during the proceedings, two other cays were mentioned: Logwood Cay
(also called Palo de Campeche) and Media LunaCay. In response to a question put by a
judge ad hoc, the Parties have stated that Media Luna Cay is now submerged and thus that it is no

longer an island. Uncertainty prevails in the case of Logwood Cay’s current condition: according
to Honduras it remains above water (though only slig htly) at high tide; according to Nicaragua, it
is completely submerged at high tide.

Given all these circumstances, the Court regards it as appropriate to pronounce only upon the
question of sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay.

A claim was also made during the oral proceedi ngs by each Party to an island in an entirely

different location, namely, the island in the mouth of the RiverCoco. For the last century the
unstable nature of the river mouth has meant that la rger islands are liable to join their nearer bank
and the future of smaller islands is uncertain. Because of the changing conditions of the area, the
Court makes no finding as to sovereign title over islands in the mouth of the River Coco.

⎯ The uti possidetis juris principle and sovereignty over the islands in dispute

The Court observes that the principle of uti possidetis juris has been relied on by Honduras

as the basis of sovereignty over the islands in dispute. This is contested by Nicaragua which asserts - 10 -

that sovereignty over the islands ca nnot be attributed to one or the other Party on the basis of this
principle.

The Court notes that it has recognized that “the principle of uti possidetis has kept its place
among the most important legal principles” regardi ng territorial title and boundary delimitation at
the moment of decolonization (Frontier Dispute (B urkina Faso/Republic of Mali), Judgment, I.C.J.

Reports 1986, p. 567, para. 26). It states that it is beyond doubt that the principle is applicable to
the question of territorial delimitation between Nicaragua and Honduras, both former Spanish
colonial provinces. During the nine teenth century, negotiations aimed at determining the territorial
boundary between Nicaragua and Honduras culminat ed in the conclusion of the Gámez-Bonilla

Treaty of 7October1894, in which both States agr eed in ArticleII, paragraph3, that “each
Republic [was] owner of the territory which at th e date of independence constituted, respectively,
the provinces of Honduras and Nicaragua”. The term s of the Award of the King of Spain of 1906,
based specifically on the principle of uti possidetis juris as established in Article II, paragraph 3, of

the Gámez-Bonilla Treaty, defined the territorial boundary between the two countries with regard
to the disputed portions of land, i.e. from Po rtillodeTeotecacinte to the Atlantic Coast. The
validity and binding force of the 1906Award have been confirmed by the International Court of
Justice in its 1960 Judgment and both Parties to the dispute accept the Award as legally binding.

Turning to the question of sovereignty over the islands, the Court begins by observing that
uti possidetis juris may, in principle, apply to offshore possessions and maritime spaces.
It observes that the mere invocation of the princi ple does not of itself provide a clear answer as to

sovereignty over the disputed islands. If the islands are not terra nullius , as both Parties
acknowledge and as is generally recognized, it must be assumed that they had been under the rule
of the Spanish Crown. However, it does not necess arily follow that the successor to the disputed
islands could only be Honduras, being the only Stat e formally to have claimed such status. The

Court recalls that uti possidetis juris presupposes the existence of a delimitation of territory
between the colonial provinces concerned having been effected by the central colonial authorities.
Thus in order to apply the principle of uti possidetis juris to the islands in dispute it must be shown

that the Spanish Crown had allocated them to one or the other of its colonial provinces.

The Court looks for convincing evidence which would allow it to determine whether and to
which of the colonial provinces of the former Spanish America the islands had been attributed.

It states that the Parties have not produ ced documentary or other evidence from the
pre-independence era which explicitly refers to the islands. The Court also observes that proximity
as such is not necessarily determinative of legal title. The information provided by the Parties on

the colonial administration of Central America by Spain does not allow for certainty as to whether
one entity (the Captaincy-General of Guatemala), or two subordinate entities (the Government of
Honduras and the General Command of Nicaragua), exercised administration over the insular
territories of Honduras and Nicaragua at that time. Unlike the land territory where the

administrative boundary between different provinces was more or less clearly demarcated, it is
apparent that there was no clear-cut demarcation with regard to islands in ge neral. This seems all
the more so with regard to the islands in question, since they must have been scarcely inhabited, if
at all, and possessed no natural resources to speak of for exploitation, except for fishing in the

surrounding maritime area. The Court also observes that the Captaincy-General of Guatemala may
well have had control over land and insular terri tories adjacent to coasts in order to provide
security, prevent smuggling and undertake other measur es to ensure the protection of the interests
of the Spanish Crown. However there is no evidence to suggest that the islands in question played

any role in the fulfilment of any of these strategic aims.

Notwithstanding the historical and continuing importance of the uti possidetis juris principle,
so closely associated with Latin American decolonization, it cannot in this case be said that the

application of this principle to these small isla nds, located considerably offshore and not obviously
adjacent to the mainland coast of Nicaragua or Honduras, would settle the issue of sovereignty over
them. - 11 -

With regard to the adjacency argument put forward by Nicaragua, the Court notes that the
independence treaties concluded by Nicaragua and Honduras with Spain in 1850 and 1866

respectively refer to adjacency w ith respect to mainland coasts rather than to offshore islands.
Nicaragua’s argument that the islands in dispute are closer to EdinburghCay, which belongs to
Nicaragua, cannot therefore be accepted. While the Court does not rely on adjacency in reaching
its findings, it observes that, in any event, the island s in dispute appear to be in fact closer to the

coast of Honduras than to the coast of Nicaragua.

Having concluded that the question of sovereignty over the islands in dispute cannot be
resolved on the above basis, the Court then ascer tains whether there were relevant effectivités

during the colonial period. This test of “colonial effectivités ” has been defined as “the conduct of
the administrative authorities as proof of the effective exercise of territorial jurisdiction in the
region during the colonial period” (Frontier Dis pute (Burkina Faso/Republic of Mali), Judgment,
I.C.J. Reports 1986 , p.586, para.63; Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports

2005, p. 120, para. 47).

The Court notes that information about such conduct by the colonial administrative
authorities is lacking in the case. It considers th at, given the location of the disputed islands and

the lack of any particular economic or strategic significance of these islands at the time, there were
no colonial effectivités in relation to them. Thus the Cour t can neither found nor confirm on this
basis a title to territory over the islands in question.

In light of the above considerations the Cour t concludes that the principle of uti possidetis
affords inadequate assistance in determining s overeignty over the islands because nothing clearly
indicates whether they were attributed to the colonial provinces of Nicaragua or of Honduras prior
to or upon independence. Neither can such attribut ion be discerned in the King of Spain’s Arbitral

Award of 1906. Equally, the Court has been presen ted with no evidence as to colonial effectivités
in respect of these islands. Thus it has not been established that either Honduras or Nicaragua had
title to these islands by virtue of uti possidetis.

⎯ Post colonial effectivités and sovereignty over the disputed islands

The Court first notes that according to its jurisprudence (in particular the Indonesia/Malaysia
case) and that of the Permanent Court of Interna tional Justice, sovereignty over minor maritime

features, such as the islands in dispute between Honduras and Nicaragua, may be established on the
basis of a relatively modest display of State powers in terms of quality and quantity.

It then examines the different categories of effectivités presented by the Parties.

Concerning the category of legislative and administrative control, the Court, noting that there
is no reference to the four islands in dispute in the various Honduran Constitutions and in the
Agrarian Law, further notes that there is no evid ence that Honduras applied these legal instruments

to the islands in any specific manner. The Court therefore finds that the Honduran claim that it had
legislative and administrative control over the islands is not convincing.

Concerning the application and enfo rcement of criminal and civil law , the Court is of the

opinion that the evidence provided by Honduras does have legal significance. The fact that a
number of the acts mentioned (inter alia criminal complaints of theft and physical assault on
Savanna and Bobel Cays, as well as a 1993 drug enforcement operation in the area by Honduras
authorities and the United States Drug Enforcement Administration (DEA)) occurred in the 1990s

is no obstacle to their relevance as the Court has f ound the critical date in relation to the islands to
be 2001. The criminal complaints have relevance because the criminal acts occurred on the islands
in dispute. The 1993 drug enforcement operation, while not necessarily an example of the

application and enforcement of Honduran criminal law, can well be considered as an authorization
by Honduras to the United States DEA granting it the ri ght to fly over the islands mentioned in the - 12 -

document, which are within the disputed area. The permit extended by Honduras to the DEA to
overfly the “national air space”, together with the specific mention of the four islands and cays,

may be understood as a sovereign act by a State, amounting to a relevant effectivité in the area.

Concerning the regulation of immigration , the Court notes that there appears to have been
substantial activity with regard to immigration and work-permit related regulation by Honduras of

persons on the islands in 1999 and 2000. In 1999 H onduran authorities visited the four islands and
recorded the details of the foreigners living in SouthCay, PortRoyalCay and SavannaCay
(BobelCay was uninhabited at the time, though it had previously been inhabited). Honduras
provides a statement by a Honduran immigration offi cer who visited the islands three or four times

from 1997 to 1999. The Court finds that legal significance is to be attached to the evidence
provided by Honduras on the regulation of immigration as proof of effectivités , notwithstanding
that it began only in the late 1990s. The issuan ce of work permits and visas to Jamaican and
Nicaraguan nationals exhibit a regulatory power on th e part of Honduras. The visits to the islands

by a Honduran immigration officer entails the ex ercise of jurisdictional authority, even if its
purpose was to monitor rather than to regulate immigration on the islands. The time span for these
acts of sovereignty is rather short, but then it is only Honduras which has undertaken measures in
the area that can be regarded as acts performed à titre de souverain . There is no contention by

Nicaragua of regulation by itself of immigration on the islands either before or after the 1990s.

Concerning the regulation of fisheries activities , the Court is of the view that the Honduran
authorities issued fishing permits with the belief that they had a legal entitlement to the maritime

areas around the islands, derived from Honduran title over those islands. The evidence of
Honduran-regulated fishing boats and construction on the islands is also legally relevant for the
Court under the category of administrative and legislative control. The Court considers that the
permits issued by the Honduran Government a llowing the construction of houses in SavannaCay

and the permit for the storage of fishing equipment in the same cay provided by the municipality of
Puerto Lempira may also be regarded as a display, albeit modest, of the exercise of authority, and
as evidence of effectivités with respect to the disputed islands. The Court does not find persuasive

Nicaragua’s argument that the negotiations be tween Nicaragua and the United Kingdom in the
1950s over renewed turtle fishing rights off the Ni caraguan coast attests to Nicaraguan sovereignty
over the islands in dispute.

Concerning naval patrols, the Court recalls that it has already indicated that the critical date
for the purposes of the issue of title to the islands is not 1977 but 2001. The evidence put forward
by both Parties on naval patrolling is sparse a nd does not clearly entail a direct relationship
between either Nicaragua or Honduras and the islands in dispute. Thus the Court does not find the

evidence provided by either Party on naval patrols persuasive as to the ex istence of effectivités
with respect to the islands.

Concerning oil concessions , the Court finds that the evidence relating to the offshore oil

exploration activities of the Parties has no bearing on the islands in dispute. It will therefore
concentrate on the oil concession related acts on the islands under the category of public works.

Concern pibglcks , the Court observes that the placing on BobelCay in 1975 of a

10m long antenna by Geophysical Servi ces Inc. for the Union Oil Company was part of a local
geodetic network to assist in drilling activities in th e context of oil concessions granted. Honduras
claims that the construction of the antenna was an integral part of the “oil exploration activity
authorized by Honduras”. Reports on these activities were periodically submitted by the oil

company to the Honduran authorities, in which the amount of the corresponding taxes paid was
also indicated. Nicaragua claims that the placement of the antenna on Bobel Cay was a private act
for which no specific governmental authorization was granted. The Court is of the view that the
antenna was erected in the context of authorized oil exploration activities. Furthermore the

payment of taxes in respect of such activities in general can be considered additional evidence that - 13 -

the placement of the antenna was done with governme ntal authorization. The Court thus considers
that the public works referred to by Honduras constitute effectivités which support Honduran

sovereignty over the islands in dispute.

Having considered the arguments and evidence put forward by the Parties, the Court finds
that the effectivités invoked by Honduras evidenced an “intention and will to act as sovereign” and

constitute a modest but real display of authority over the four islands. Although it has not been
established that the four islands are of economic or strategic importance and in spite of the scarcity
of acts of State authority, Honduras has shown a sufficient overall pattern of conduct to
demonstrate its intention to act as sovereign in r espect of Bobel Cay, Savanna Cay, Port Royal Cay

and SouthCay. The Court further notes that those Honduran activities qualifying as effectivités
which can be assumed to have come to the knowledge of Nicaragua did not elicit any protest on the
part of the latter. With regard to Nicaragua, the Court has found no proof of intention or will to act
as sovereign, and no proof of any actual exercise or display of authority over the islands.

⎯ Evidentiary value of maps in confirming sovereignty over the disputed islands

The Court notes that a large number of maps wa s presented by the Parties to illustrate their

respective arguments, but that none of the maps which include some of the islands in dispute
clearly specify which State is the one exercising sovereignty over those islands. Furthermore none
of the maps being part of a legal instrument in force nor more specifically part of a boundary treaty
concluded between Nicaragua and Honduras, the C ourt concludes that the cartographic material

presented by the Parties cannot of itself support thei r respective claims to sovereignty over islands
to the north of the 15th parallel.

⎯ Recognition by third States and bilateral treaties; the 1998 Free Trade Agreement

In the Court’s view there is no evidence to support any of the contentions made by the
Parties with respect to recognition by third States that sovereignty over the disputed islands is

vested in Honduras or in Nicaragua. Some of th e evidence offered by the Parties shows episodic
incidents that are neither consistent nor consecutiv e. It is obvious that they do not signify an
explicit acknowledgment of sovereignty, nor were they meant to imply any such acknowledgment.
The Court observes that bilateral treaties of Colombia, one with Honduras and one with

Jamaica, have been invoked by Honduras as proof of recognition of sovereignty over the disputed
islands. The Court notes that in relation to these treaties Nicaragua never acquiesced in any
understanding that Honduras had sovereignty over the disputed islands. The Court does not find
these bilateral treaties relevant as regards recogn ition by a third party of title over the disputed

islands.

The Court recalls that during the oral proceedings it was apprised of the negotiating history
of a Free Trade Agreement Central America-Dominican Republic which was signed on

16 April 1998 in Santo Domingo by Nicaragua, Honduras, Costa Rica, Guatemala, El Salvador and
the Dominican Republic. According to Honduras the original text of the Agreement included an
Annex to Article2.01 giving a definition of the territory of Honduras, which referred inter alia to
PalodeCampeche and MediaLuna cays. Hond uras claims that the term “MediaLuna” was

“frequently used to refer to the entire group of is lands and cays” in the area in dispute. Nicaragua
points out that during the ratification process, its National Assembly approved a revised text of the
Free Trade Agreement which did not contain the Annex to Article2.01. Having examined said
Annex, the Court observes that the four islands in dispute are not mentioned by name in it.

Moreover, the Court notes that it has not been pr esented with any convincing evidence that the
term “MediaLuna” has the meaning advanced by Honduras. In these circumstances the Court
finds that it need not further examine arguments relating to this Treaty nor its status for the
purposes of these proceedings. - 14 -

⎯ Decision as to sovereignty over the islands

The Court, having examined all of the eviden ce related to the claims of the Parties as to
sovereignty over the islands of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay, including
the issue of the evidentiary value of maps and the question of recognition by third States, concludes
that Honduras has sovereignty over these islands on the basis of post-colonial effectivités.

Delimitation of maritime areas (paras. 228-320)

⎯ Traditional maritime boundary line claimed by Honduras

The principle of uti possidetis juris

The Court observes that the uti possidetis juris principle might in certain circumstances, such

as in connection with historic bays and territorial seas, play a role in a maritime delimitation.
However, in the present case, were the Court to acce pt Honduras’s claim that Cape Gracias a Dios
marked the separation of the respective maritime jurisdiction of the colonial provinces of Honduras
and Nicaragua, no persuasive case has been made by Honduras as to why the maritime boundary

should then extend from the Cape along the 15th paralle l. It merely asserts that the Spanish Crown
tended to use parallels and meridians to draw jurisdictional divisions , without presenting any
evidence that the colonial Power did so in this particular case.

The Court thus cannot uphold Honduras’s assertion that the uti possidetis juris principle
provided for a maritime division along the 15th parallel “to at least 6nautical miles from
CapeGraciasaDios” nor that the territorial sovereignty over the islands to the north of the
15thparallel on the basis of the uti possidetis juris principle “provides the traditional line which

separates these Honduran islands from the Nicaraguan islands to the south” with “a rich historical
basis that contributes to its legal foundation”.

The Court further observes that Nicaragua and Honduras as new independent States were

entitled by virtue of the uti possidetis juris principle to such mainland and insular territories and
territorial seas which constituted their provinces at independence. The Court, however, has already
found that it is not possible to determine sovereignty over the islands in question on the basis of the
uti possidetis juris principle. Nor has it been shown that the Spanish Crown divided its maritime

jurisdiction between the colonial provinces of Ni caragua and Honduras even within the limits of
the territorial sea. Although it may be accepted that all States gained their independence with an
entitlement to a territorial sea, that legal fact does not determine where the maritime boundary
between adjacent seas of neighbouring States will run. In the circumstances of the present case, the

uti possidetis juris principle cannot be said to have provided a basis for a maritime division along
the 15th parallel.

The Court also notes that the 1906Arbitral Award, which indeed was based on the

uti possidetis juris principle, did not deal with the ma ritime delimitation between Nicaragua and
Honduras and that it does not confirm a maritime boundary between them along the 15th parallel.

The Court thus finds that the contention of Honduras that the uti possidetis juris principle provides

a basis for an alleged “traditional” maritime boundary along the 15th parallel cannot be sustained.

Tacit agreement

Having already indicated that there was no boundary established by reference to
uti possidetis juris, the Court must determine whether, as claimed by Honduras, there was a tacit
agreement sufficient to establish a boundary. Ev idence of a tacit legal agreement must be
compelling. The establishment of a permanent maritime boundary is a matter of grave importance

and agreement is not easily to be presumed. A defacto line might in certain circumstances
correspond to the existence of an agreed legal boundary or might be more in the nature of a - 15 -

provisional line or of a line for a specific, limited purpose, such as sharing a scarce resource. Even
if there had been a provisional line found convenient for a period of time, this is to be distinguished

from an international boundary.

As regards the evidence of oil concessions proffered by Honduras in support of its
contention, the Court considers that Nicaragua, by leaving open the northern limit to its

concessions or by abstaining from mentioning the boundary with Honduras in that connection,
reserved its position concerning its maritime boundary with Honduras. Moreover, the Court
observes that the Nicaraguan concessions provisiona lly extending up to the 15th parallel were all
given after Honduras had granted its concessions extending southwards to the 15th parallel.

With regard to the 1986Treaty between Colombia and Honduras and the 1993Treaty
between Colombia and Jamaica invoked by Hon duras, the Court recalls that Nicaragua has
maintained its persistent objections to these treaties. In the 1986 Treaty the parallel 14° 59' 08" to

the east of the 82ndmeridian serves as the bounda ry line between Honduras and Colombia. As
already mentioned, according to Honduras the 1993Treaty proceeds from a recognition of the
validity of the 1986Treaty between Colombia and Honduras, thereby recognizing Honduran
jurisdiction over the waters and islands to the north of the 15th parallel.

The Court has noted that at periods in time, as the evidence shows, the 15th parallel appears
to have had some relevance in the conduct of the Pa rties. This evidence relates to the period after
1961 when Nicaragua left areas to the north of Ca pe Gracias a Dios following the rendering of the

Court’s Judgment on the validity of the 1906Ar bitral Award and until 1977 when Nicaragua
proposed negotiations with Honduras with the purpose of delimiting maritime areas in the
Caribbean Sea. The Court observes that during th is period several oil concessions were granted by
the Parties which indicated that their northern and southern limits lay respectively at 14°59.8'.

Furthermore, regulation of fishing in the area at times seemed to suggest an understanding that the
15th parallel divided the respective fishing areas of the two States; and in addition the 15th parallel
was also perceived by some fishermen as a lin e dividing maritime areas under the jurisdiction of
Nicaragua and Honduras. However, these events , spanning a short period of time, are not

sufficient for the Court to conclude that there was a legally established international maritime
boundary between the two States.

The Court observes that the Note of the Honduran Minister for Foreign Affairs dated

3 May 1982 cited by the Parties (in which he conc urred with the Nicaraguan Foreign Ministry that
“the maritime border between Honduras and Nica ragua has not been legally delimited” and
proposed that the Parties at least come to a “temporary” arrangement about the boundary so as to

avoid further boundary incidents) is somewhat uncertain regarding the existence of an
acknowledged boundary along the 15th parallel. The acknowledgment that there was then no legal
delimitation “was not a proposal or a concession made during negotiations, but a statement of facts
transmitted to the Foreign [Ministry, which] did not express any reservation in respect thereof” and

should thus be taken “as evidence of the [Honduran] official view at that time”.

Having reviewed all of this practice includi ng diplomatic exchanges, the Court concludes
that there was no tacit agreement in effect between the Parties in 1982 ⎯ nor a fortiori at any

subsequent date ⎯ of a nature to establish a legally binding maritime boundary.

⎯ Determination of the maritime boundary

The Court, having found that there is no tr aditional boundary line along the 15thparallel,
proceeds to the maritime delimitation between Nicaragua and Honduras.

Applicable law

Both Parties in their final submissions asked the Court to draw a “single maritime boundary”
delimiting their respective territorial seas, exclusive economic zones, and continental shelves in the - 16 -

disputed area. Although Nicaragua was not party to UNCLOS at the time it filed the Application in
this case, the Parties are in agreement that UNCLO S is now in force between them and that its

relevant articles are applicable between them in this dispute.

Areas to be delimited and methodology

The “single maritime boundary” in the present case will be the result of the delimitation of
the various areas of jurisdiction spanning the maritime zone from the Nicaragua-Honduras
mainland out to at least the 82nd meridian, where third-State interests may become relevant. In the
western reaches of the area to be delimited the Parties’ mainland coasts are adjacent; thus, for some

distance the boundary will delimit exclusively their territorial seas (UNCLOS, Art. 2, para. 1).
Both Parties also accept that the four islands in dispute north of the 15thparallel (Bobel Cay,
Savanna Cay, Port Royal Cay and South Cay), which have been attributed to Honduras, as well as
Nicaragua’s Edinburgh Cay south of the 15th parallel, are entitled to generate their own territorial

seas for the coastal State. The Court recalls that as regards the islands in dispute no claim has been
made by either Party for maritime areas other than the territorial sea.

The Court notes that, while the Parties disagree as to the appropriate breadth of these islands’

territorial seas, according to Article3 of UNCLO S, a State’s territorial sea cannot extend beyond
12 nautical miles. These islands are all indisputably located within 24 miles of each other but more
than 24miles from the mainland that lies to the west. Thus the single maritime boundary might
also include segments delimiting overlapping areas of the islands’ opposite-facing territorial seas as

well as segments delimiting the continental shelf and exclusive economic zones around them.

For the delimitation of the territorial seas, Article15 of UNCLOS, which is binding as a
treaty between the Parties, provides:

“Where the coasts of two States are opposite or adjacent to each other, neither
of the two States is entitled, failing agreement between them to the contrary, to extend
its territorial sea beyond the median line ever y point of which is equidistant from the

nearest point on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above pr ovision does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith.”

As already indicated, the Court has determined that there is no existing “historic” or
traditional line along the 15th parallel.

As the Court has observed with respect to implementing the provisions of Article15 of
UNCLOS: “The most logical and widely practised approach is first to draw provisionally an
equidistance 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. 94, para. 176.)

The jurisprudence of the Court sets out the reasons why the equidistance method is widely
used in the practice of maritime delimitation: it has a certain intrinsic value because of its scientific

character and the relative ease with which it can be applied. However, the equidistance method
does not automatically have priority over othe r methods of delimitation and, in particular
circumstances, there may be factors which make the application of the equidistance method
inappropriate.

The Court notes that neither Party has as its main argument a call for a provisional
equidistance line as the most suitable method of delimitation.

It observes at the outset that both Parties ha ve raised a number of geographical and legal
considerations with regard to the method to be followed by the Court for the maritime delimitation. - 17 -

Cape Gracias a Dios, where the Nicaragua-Honduras land boundary ends, is a sharply convex
territorial projection abutting a concave coastline on either side to the north and south-west.

Taking into account Article15 of UNCLOS and gi ven the geographical configuration described
above, the pair of base points to be identified on either bank of the RiverCoco at the tip of the
Cape would assume a considerable dominance in c onstructing an equidistance line, especially as it
travels out from the coast. Given the close pr oximity of these base points to each other, any

variation or error in situating them would beco me disproportionately ma gnified in the resulting
equidistance line. The Parties agree, moreover, that the sediment carried to and deposited at sea by
the River Coco have caused its delta, as well as the coastline to the north and south of the Cape, to
exhibit a very active morpho-dynamism. Thus continued accretion at the Cape might render any

equidistance line so constructed today arbitrar y and unreasonable in the near future. These
geographical and geological difficulties are furthe r exacerbated by the absence of viable base
points claimed or accepted by the Parties themselves at Cape Gracias a Dios.

This difficulty in identifying reliable base points is compounded by the differences,
addressed more fully, infra, that apparently still remain between the Parties as to the interpretation
and application of the King of Spain’s 1906 Arbitral Award in respect of sovereignty over the islets
formed near the mouth of the RiverCoco a nd the establishment of “[t]he extreme common

boundary point on the coast of the Atlantic” (A rbitral Award Made by the King of Spain on
23 December 1906, Judgment, I.C.J. Reports 1960, p. 202).

Given the set of circumstances in the case it is impossible for the Court to identify base

points and construct a provisional equidistance lin e for the single maritime boundary delimiting
maritime areas off the Parties’ mainland coasts. Even if the particular features already indicated
make it impossible to draw an equidistance line as the single maritime frontier, the Court must
nonetheless see if it would be possible to start the frontier line across th e territorial seas as an

equidistance line, as envisaged in Article15 of UNCLOS. It may be argued that the problems
associated with distortion, if the protrusions either side of CapeGraciasaDios were used as base
points, are less severe close to the coast. However, the Court notes first that the Parties are in

disagreement as to title over the unstable islands having formed in the mouth of the River Coco,
islands which the Parties suggested during the oral pr oceedings could be used as base points. It is
recalled that because of the changing conditions of the area the Court has made no finding as to
sovereignty over these islands. Moreover, whatever base points would be used for the drawing of

an equidistance line, the configuration and unstabl e nature of the relevant coasts, including the
disputed islands formed in the mouth of the River Coco, would make these base points (whether at
Cape Gracias a Dios or elsewhere) uncertain within a short period of time.

Article 15 of UNCLOS itself envisages an exception to the drawing of a median line, namely
“where it is necessary by reason of historic title or special circumstances. ..”. Nothing in the
wording of Article15 suggests that geomorphological problems are per se precluded from being
“special circumstances” within the meaning of the exception, nor that such “special circumstances”

may only be used as a corrective element to a line already drawn. Indeed, the latter suggestion is
plainly inconsistent with the word ing of the exception described in Article15. It is recalled that
Article 15 of UNCLOS, which was adopted without any discussion as to the method of delimitation
of the territorial sea, is virtually identical (sav e for minor editorial changes) to the text of

Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone.

The genesis of the text of Article12 of the 1958 Convention on the Territorial Sea and the
Contiguous Zone shows that it was indeed envisaged that a special configuration of the coast might

require a different method of delimitati on (see Yearbook of the International Law
Commission (YILC), 1952, Vol. II, p. 38, commentary, para. 4). Furthermore, the consideration of
this matter in 1956 does not indicate otherwise. The terms of the exception to the general rule
remained the same (YILC , 1956, Vol.I, p.284; Vol.II, pp.271, 272, and p.300 where the

Commentary to the Draft Convention on the Continental Shelf noted that “as in the case of the
boundaries of the territorial sea, provision must be made for departures necessitated by any - 18 -

exceptional configuration of the coast . . .”). A dditionally, the jurisprudence of the Court does not
reveal an interpretation that is at variance with the ordinary meaning of th e terms of Article 15 of

UNCLOS.

For all of the above reasons, the Court finds itself within the exception provided for in
Article15 of UNCLOS, namely facing special circumstances in which it cannot apply the

equidistance principle. At the same time equidistance remains the general rule.

Construction of a bisector line

Having reached the conclusion that the cons truction of an equidistance line from the
mainland is not feasible, the Court must consider the applicability of the alternative methods put
forward by the Parties.

Nicaragua’s primary argument is that a “bisector of two lines representing the entire coastal

front of both States” should be used to effect the delimitation from the mainland, while sovereignty
over the maritime features in the area in dispute “c ould be attributed to either Party depending on
the position of the feature involved with respect to the bisector line”.

Honduras “does not deny that geometrical met hods of delimitation, such as perpendiculars
and bisectors, are methods that may produce equitable delimitations in some circumstances”, but it
disagrees with Nicaragua’s construction of the angle to be bisected. Honduras, as already

explained, advocates a line along the 15th parallel, no adjustment of which would be necessary in
relation to the islands. The Court notes that in Honduras’s final submissions it requested the Court
to declare that the single maritime boundary between Honduras and Nicaragua “follows 14° 59.8' N
latitude, as the existing maritime boundary, or an adjusted equidistance line, until the jurisdiction of

a third State is reached”.

The Court recalls that both of Honduras’s pr oposals (the main one based on tacit agreement
as to the 15thparallel representing the maritime fr ontier and the other on the use of an adjusted

equidistance line) have not been accepted by the Court.

It states that the use of a bisector ⎯ the line formed by bisecting the angle created by the
linear approximations of coastlines ⎯ has proved to be a viable substitute method in certain

circumstances where equidistance is not possibl e or appropriate. The justification for the
application of the bisector method in maritime delimitation lies in the configuration of and
relationship between the relevant coastal fronts and the maritime areas to be delimited. In instances
where, as in the present case, any base points that could be determined by the Court are inherently

unstable, the bisector method may be seen as an approximation of the equidistance method. Like
equidistance, the bisector method is a geometrical approach that can be used to give legal effect to
the

“criterion long held to be as equitable as it is simple, namely that in principle, while
having regard to the special circumstances of the case, one should aim at an equal
division of areas where the maritime projections of the coasts of the States...

converge and overlap” (Delimitation of the Maritime Boundary in the Gulf of Maine
Area, Judgment, I.C.J. Reports 1984, p. 327, para. 195).

If it is to “be faithful to the actual geographi cal situation” (Continental Shelf (Libyan Arab

Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p.45, para.57), the method of delimitation
should seek a solution by reference first to the States’ “relevant coasts” (see Maritime Delimitation
and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, I.C.J. Reports
2001, p. 94 para. 178; see also the Land and Ma ritime Boundary between Cameroon and Nigeria

(Cameroonv. Nigeria: Equatorial Guinea intervening), I.C.J. Reports 2002 , p. 442, para. 90)).
Identifying the relevant coastal geography calls for the exercise of judgment in assessing the actual
coastal geography. The equidistance method appr oximates the relationship between two parties’ - 19 -

relevant coasts by taking account of the relationships between designated pairs of base points. The
bisector method comparably seeks to approximate the relevant coastal relationships, but does so on

the basis of the macro-geography of a coastline as represented by a line drawn between two points
on the coast. Thus, where the bisector method is to be applied, care must be taken to avoid
“completely refashioning nature” (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969 ,
p. 49, para. 91).

The Court notes that, in the present case, the application of the bisector method is justified
by the geographical configuration of the coast, and the geomorphological features of the area where
the endpoint of the land boundary is located.

The Court considers for present purposes that it will be most convenient to use the point
fixed in 1962 by the Mixed Commission at Cape GraciasaDios as the point where the Parties’
coastal fronts meet. The Court adds that the co-ordinates of the endpoints of the chosen coastal

fronts need not at this juncture be specified with exactitude for present purposes; one of the
practical advantages of the bisector method is that a minor deviation in the exact position of
endpoints, which are at a reasonable distance from the shared point, will have only a relatively
minor influence on the course of the entire coastal front line. If necessary in the circumstances, the

Court could adjust the line so as to achieve an equitable result (see UNCLOS, Arts.74, para.1,
and 83, para. 1).

The Court then considers the various possibilities for the coastal fronts that could be used to

define these linear approximations of the relevant geography. Nicaragua’s primary proposal for the
coastal fronts, as running from Cape Gracias a Dios to the Guatemalan border for Honduras and to
the CostaRican border for Nicaragua, would cut off a significant portion of Honduran territory
falling north of this line and thus would give signi ficant weight to Honduran territory that is far

removed from the area to be delimited. This would seem to present an exaggeratedly acute angle to
bisect.

In selecting the relevant coastal fronts, the Court has considered the Cape Falso-Punta Gorda

coast (generating a bisector with an azimuth of 70°54'), which certainly faces the disputed area,
but it is quite a short façade (some 100km) fro m which to reflect a coastal front more than
100nautical miles out to sea, especially taking into account how quickly to the north-west the
Honduran coast turns away from the area to be de limited after CapeFalso, as it continues past

Punta Patuca and up to Cape Camerón. Indeed, Cape Falso is identified by Honduras as the most
relevant “turn” in the mainland coastline.

A coastal front extending from Cape Camerón to Rio Grande (generating a bisector with an

azimuth of 64°02') would, like the original Ni caraguan proposal, also overcompensate in this
regard since the line would run entirely over th e Honduran mainland and thus would deprive the
significant Honduran land mass lying between the sea and the line of any effect on the delimitation.

The front that extends from PuntaPatuca to Wouhnta, would avoid the problem of cutting
off Honduran territory and at the same time provides a coastal façade of sufficient length to account
properly for the coastal configuration in the disputed area. Thus, a Honduran coastal front running
to PuntaPatuca and a Nicaraguan coastal front running to Wouhnta are in the Court’s view the

relevant coasts for purposes of drawing the bisector. This resulting bisector line has an azimuth of
70° 14' 41.25".

Delimitation around the islands

The Court notes that by virtue of Article 3 of UNCLOS Honduras h as the right to establish
the breadth of its territorial sea up to a limit of 12nautical miles be that for its mainland or for
islands under its sovereignty. In the current pro ceedings Honduras claims for the four islands in

question a territorial sea of 12nautical miles. Th e Court thus finds that, subject to any overlap - 20 -

between the territorial sea around Honduran islands and the territorial sea around Nicaraguan
islands in the vicinity, Bobel Cay, Savanna Cay, Port Royal Cay and South Cay shall be accorded a

territorial sea of 12 nautical miles.

As a 12-mile breadth of territorial sea has been accorded to these islands, it become
s
apparent that the territorial seas attributed to the islands of BobelCay, SavannaCay,

PortRoyalCay and SouthCay (Honduras) and EdinburghCay (Nicaragua) would lead to an
overlap in the territorial sea of Nicaragua and H onduras in this area, both to the south and to the
north of the 15th parallel.

Drawing a provisional equidistance line for this territorial sea delimitation between the
opposite-facing islands does not present the problems that would an equidistance line from the
mainland. The Parties have provided the Court with co-ordinates for the four islands in dispute
north of the 15th parallel and for Edinburgh Cay to the south. Delimitation of this relatively small

area can be satisfactorily accomplished by drawing a provisional equidistance line, using
co-ordinates for the above islands as the base points for their territorial seas, in the overlapping
areas between the territorial seas of Bobel Cay, Port Royal Cay and South Cay (Honduras), and the
territorial sea of EdinburghCay (Nicaragua), r espectively. The territorial sea of SavannaCay

(Honduras) does not overlap with the territorial sea of EdinburghCay. The Court does not
consider there to be any legally relevant “special circumstances” in this area that would warrant
adjusting this provisional line.

The maritime boundary between Nicaragua a nd Honduras in the vicinity of BobelCay,
Savanna Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua) will thus
follow the line as described below.

From the intersection of the bisector line with the 12-mile arc of the territorial sea of
BobelCay at pointA (with co-ordinates 15°05'25"N and 82°52'54"W) the boundary line
follows the 12-mile arc of the territorial sea of BobelCay in a southerly direction until its
intersection with the 12-mile arc of the territo rial sea of EdinburghCay at pointB (with

co-ordinates 14° 57' 13" N and 82° 50' 03" W). From point B the boundary line continues along
the median line, which is formed by the points of equidistance between Bobel Cay, Port Royal Cay
and South Cay (Honduras) and Edinburgh Cay (Nicaragua), through pointsC (with co-ordinates
14° 56' 45" N and 82° 33' 56" W) and D (with co-ordinates 14° 56' 35" N and 82° 33' 20" W), until

it meets the point of intersection of the 12-mile arcs of the territorial seas of South Cay (Honduras)
and EdinburghCay(Nicaragua) at pointE (with co -ordinates 14° 53' 15" N and 82° 29' 24" W).
From pointE the boundary line follows the 12-mile arc of the territorial sea of SouthCay in a

northerly direction until it intersects the bisector line at pointF (with co-ordinates 15°16'08"N
and 82° 21' 56" W).

Starting-point and endpoint of the maritime boundary

Having reviewed the proposals of the Parties, the Court considers it appropriate to set the
starting-point 3 miles out to sea (15° 00' 52" N and 83° 05' 58" W) from the point already identified
by the Mixed Commission in 1962 along the azimuth of the bisector as described above. The
Parties are to agree on a line which links the end of the land boundary as fixed by the 1906 Award

and the point of departure of the maritime delimitation in accordance with the present Judgment.

As for the endpoint, neither Nicaragua nor Honduras in each of their submissions specifies a
precise seaward end to the boundary between them.

The Court observes that there are three possibilities open to it: it could say nothing about the
endpoint of the line, stating only that the line c ontinues until the jurisdiction of a third State is
reached; it could decide that the line does not extend beyond the 82ndmeridian; or it could - 21 -

indicate that the alleged third-State rights said to exist east of the 82ndmeridian do not lie in the
area being delimited and thus present no obstacle to deciding that the line continues beyond that

meridian.

The Court considers certain interests of third States which result from some bilateral treaties
between countries in the region and which may be of possible relevance to the limits to the

maritime boundary drawn between Nicaragua and Honduras. The Court adds that its consideration
of these interests is without prejudice to any othe r legitimate third party interests which may also
exist in the area.

The Court may accordingly, without specifying a precise endpoint, delimit the maritime
boundary and state that it extends beyond the 82nd meri dian without affecting third-State rights. It
should also be noted in this regard that in no case may the line be interpreted as extending more
than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured;

any claim of continental shelf rights beyond 200mi les must be in accordance with Article76 of
UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf established
thereunder.

Course of the maritime boundary (sketch-maps Nos. 7 and 8 in the Judgment)

The line of delimitation is to begin at the starting-point 3nauticalmiles offshore on the
bisector. From there it continues along the bisector until it reaches the outer limit of the

12-nautical-mile territorial sea of BobelCay. It then traces this territorial sea round to the south
until it reaches the median line in the overlapping territorial seas of Bobel Cay, Port Royal Cay and
South Cay (Honduras) and Edinburgh Cay (Nicaragua). The delimitation line continues along this
median line until it reaches the territorial sea of SouthCay, which for the most part does not

overlap with the territorial sea of Edinburgh Cay. The line then traces the arc of the outer limit of
the 12-nautical-mile territorial sea of South Cay round to the north until it again connects with the
bisector, whereafter the line continues along that azimuth until it reaches the area where the rights
of certain third States may be affected. - 22 -

Sketch-map No. 7 in the Judgment - 23 -

Sketch-map No. 8 in the Judgment - 24 -

Operative clause (para. 321)

“For these reasons,

T HE C OURT ,

U(na)nimously,

Finds that the Republic of Honduras has sovereignty over BobelCay, SavannaCay,
Port Royal Cay and South Cay;

(2) By fifteen votes to two,

Decides that the starting-point of the single maritime boundary that divides the territorial sea,
continental shelf and exclusive economic zones of the Republic of Nicaragua and the Republic of

Honduras shall be located at a point with the co-ordinates 15° 00' 52" N and 83° 05' 58" W;

IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; JudgesRanjeva, Shi, Koroma,
Buergenthal, Owada, Simma, Tomka, Ab raham, Keith, Sepúlveda-Amor, Bennouna,

Skotnikov; Judgead hoc Gaja;

AGAINST : JudgeParra-Aranguren, Judgead hoc Torres Bernárdez;

(3) By fourteen votes to three,

Decides that starting from the point with the co-ordinates 15°00'52"N and 83°05'58"W
the line of the single maritime boundary shal l follow the azimuth 70°14'41.25" until its

intersection with the 12-nautical-mile arc of the territorial sea of BobelCay at pointA (with
co-ordinates 15°05'25"N and 82°52'54"W). From pointA the boundary line shall follow the
12-nautical-mile arc of the territorial sea of Bobel Cay in a southerly direction until its intersection
with the 12-nautical-mile arc of the territorial sea of EdinburghCay at pointB (with co-ordinates

14° 57' 13" N and 82° 50' 03" W). From point B the boundary line shall continue along the median
line which is formed by the points of equidistance between BobelCay, PortRoyalCay and
SouthCay(Honduras) and Edinburgh Cay(Nicaragua), through point (with co-ordinates
14° 56' 45" N and 82° 33' 56" W) and D (with co-ordinates 14° 56' 35" N and 82° 33' 20" W), until

it meets the point of intersection of the 12-nautical-mile arcs of the territorial seas of
South Cay (Honduras) and Edinburgh Cay (Nicaragua) at point E (with co-ordinates 14° 53' 15" N
and 82°29'24"W). From pointE the boundary line shall follow the 12-nautical-mile arc of the
territorial sea of South Cay in a northerly direc tion until it meets the line of the azimuth at point F

(with co-ordinates 15° 16' 08" N and 82° 21' 56" W). From point F, it shall continue along the line
having the azimuth of 70°14'41.25" until it reaches the area where the rights of third States may
be affected;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Shi, Koroma,
Buergenthal, Owada, Simma, Tomka, Ab raham, Keith, Sepúlveda-Amor, Bennouna,
Skotnikov; Judgead hoc Gaja;

AGAINST : JudgesRanjeva, Parra-Aranguren, Judgead hoc Torres Bernárdez;

(4) By sixteen votes to one,

Finds that the Parties must negotiate in good faith with a view to agreeing on the course of
the delimitation line of that portion of the territo rial sea located between the endpoint of the land
boundary as established by the 1906Arbitral Award and the starting-point of the single maritime
boundary determined by the Court to be located at the point with the co-ordinates 15°00'52"N

and 83° 05' 58" W. - 25 -

IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; JudgesRanjeva, Shi, Koroma,
Buergenthal, Owada, Simma, Tomka, Ab raham, Keith, Sepúlveda-Amor, Bennouna,

Skotnikov; Judgesad hoc Torres Bernárdez, Gaja;

AGAINST : JudgeParra-Aranguren.”

*

Judge Ranjeva appends a separate opinion to the Judgment of the Court; JudgeKoroma
appends a separate opinion to the Judgment of the Court; JudgeParra-Aranguren appends a
declaration to the Judgment of the Court; Judgeadhoc Torres Bernárdez appends a dissenting

opinion to the Judgment of the Court; Judge ad hoc Gaja appends a declaration to the Judgment of
the Court.

___________ Annex to Summary 2007/4

Separate opinion of Judge Ranjeva

Judge Ranjeva explains his vote against the third operative paragraph in a separate opinion
appended to the Judgment. With respect to the line of the boundary segment beginning at the point

with the co-ordinates 15° 00' 52" N and 83° 05' 58" W, which follows the azimuth 70° 14' 25" until
its intersection at point A (co-ordinates 15° 05' 25" N and 82° 52' 54" W) with the 12-nautical-mile
arc of the territorial sea of BobelCay, the Judgment challenges the law and the consistent

jurisprudence on the method of delimiting territorial seas. In view of the instability of the
coastlines, the Judgment abandons the method of de limitation by stages in order to attribute a
directly normative function to the geomorphological circumstances of the coast. JudgeRanjeva
cannot accept the approach adopted in the Judgment, in the sense that such circumstances are seen

by the law of maritime delimitation as having a corre ctive function on the rigid effects of applying
a provisional equidistance line. In attributing a normative function to these circumstances, the
Judgment first creates a new category of circumst ances alongside the conventional ones of special
and relevant circumstances; it also reopens the now settled debate between the advocates of

equidistance and those of equity. Finally, the bisector method makes the object of the judicial
decision an exercise in dividing a sector, rather than one of delimitation. As for the question of the
impossibility of drawing a provisional equidistance line, the arguments presented appear too
subjective, inasmuch as the notion of unstable coastlines was not unknown to the Montego Bay

Convention of 1982.

Separate opinion of Judge Koroma

In a separate opinion, Judge Koroma concurre d with the Court’s conclusion regarding the
method of delimitation applied in this case, but c onsidered that certain significant aspects of the
Judgment called for emphasis and clarification. He viewed the use of the bisector to effect the

delimitation as consistent with and reflective of the jurisprudence on maritime delimitation, rather
than as being a departure therefrom. Under this jurisprudence, the delimitation process begins with
defining the geographical context of the dispute and then applies the pertinent rules of international
law and equitable principles to determine the rele vance and weight of the geographical features.

The choice of method thus very much depends upon the pertinent circumstances of the area.

It was in the light of the foregoing that the Court considered the bisector as the most
appropriate method for the delimitation process in this case. He pointed out that equidistance

cannot be applied universally and automatically as a method of delimitation irrespective of the area
to be delimited and, in this case, neither Party argued, in the main, that this method should be used
for delimiting their respective territorial seas gi ven the unstable coastal geography. Thus, the
Court, having carefully examined the Parties’ arguments and their well-founded reluctance to

embrace equidistance, decided to adopt the bisector method as a suitable delimitation method in
this case.

He recalled that the use of a bisector ⎯ the line formed by bisecting the angle formed by the

two lines approximating the States’ coastal fronts ⎯ is a geometric method that can be used to give
legal effect to the criterion long held to be as e quitable as it is simple, namely that, in principle,
while having regard to the special circumstances of the case, a delimitation should aim at an equal

division of areas where the maritime projections of the coasts of the States converge and overlap;
that while the equidistance method approximates th e relationship between two parties’ relevant
coasts by comparing the fine relationships betw een acceptable pairs of base points, the bisector
method likewise seeks to approximate the relevant coastal relationships on the basis of the

macro-geography of a coastline. He acknowledged that care must always be taken to avoid - 2 -

completely refashioning nature. He pointed out that the use of the bisector method has several
precedents and, in applying this approach here, the Court, rather than departing from its settled

jurisprudence, has reaffirmed, applied and given effect to that jurisprudence.

On the other hand, JudgeKoroma had reserva tions regarding the decision to attribute to
Honduras areas of territorial sea lying south of the 14°59.8'N parallel. Honduras in its

submissions stated that its territorial sea woul d not extend south of the 14°59.8'N parallel and
there was no compelling reason not to uphold this submission when this would have prevented a
potential source of future conflict and avoided giving disproportiona te effect to the small islands
the title to which was in dispute in this case.

Declaration of Judge Parra-Aranguren

JudgeParra-Aranguren recalls the Note of 19March1912 sent by the Minister for Foreign

Affairs of Nicaragua to the Foreign Minister of Honduras, specifying the disagreement to be
decided by the Arbitrator in application of ArticleIII of the 1894Treaty concluded between their
countries, i.e., “from the point on the Cordillera ca lled Teotecacinte to its endpoint on the Atlantic

coast and to the boundary in the sea marking the end of the jurisdiction of the two States ”
(emphasis added), and challenging for the first time the validity and binding nature of the
1906Arbitral Award. Nicaragua indicated several grounds for the nullity of the decision of the
King of Spain, one of them being that “there is an evident inconsistency in this Award when it

deals with that section of the frontier line wh ich should separate the jurisdiction of the two
countries in the territorial sea ” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on
23 December 1906 (Honduras v. Nicaragua), Vol. I, p. 294; emphasis added). [Translation by the
Registry.]

Paragraph39 of the Judgment refers to Nicaragua’s Note of 19Marc h1912. However, the
Court only indicates that it “challenged the validity and binding character of the Arbitral Award”,
not mentioning the statements quoted above, even though they demonstrate Nicaragua’s opinion

that the 1906Arbitral Award had established “the frontier line which should separate the
jurisdiction of the two countries in the territorial sea”.

Judge Parra-Aranguren agrees with Nicaragua ’s Note of 1912 acknowledging that the

1906 Arbitral Award determined the sovereignty of the disputed mainland and insular territories, as
well as the continental and insular territorial waters appertaining to Honduras and Nicaragua.
However, he cannot share Nicaragua’s allegation th at the decision of the King of Spain was null
and void because of its “omissions, contradictions and obscurities”. Nicaragua presented this

contention to the Court, but it was not upheld in its Judgment of 18November1960, which is
res judicata (Arbitral Award Made by the King of Spain on 23December1906 (Honduras v.
Nicaragua), Judgment, I.C.J. Reports 1960, pp. 205-217).

For these reasons, Judge Parra-Aranguren voted in favour of paragra ph 321 (1) and against
paragraph 321 (2), paragraph 321 (3) and paragraph 321 (4) of the Judgment.

Dissenting opinion of Judge ad hoc Torres Bernárdez

1. As explained in the introduction to the opinion, JudgeTorresBernárdez has voted in
favour of the decision in the Judgment to the effect that sovereignty over Bobel Cay, Savanna Cay

and Port Royal Cay lies with the Republic of Honduras (subparagraph (1) of the operative clause),
as it is his view that these islands, all lying north of the 15th parallel, belong to Honduras for three
reasons: (a) Honduras possesses a legal title to the isla nds pursuant to the uti possidetis juris
position in 1821, which applies as between the Parties; (b) the post-colonial effectivités exercised

by Honduras à titre de souverain over the islands and in the territorial sea around them and the - 3 -

absence of effectivités of Nicaragua; and (c) Nicaragua’s acquiescence in Honduras’s sovereignty
over the islands until the belated assertion of a claim in the Memorial filed by the Applicant in the

present proceedings on 21 March 2001.

2. Thus, in JudgeTorresBernárdez’s view, the legal basis for Honduras’s sovereignty over

the islands is threefold, including the post-colonial effectivités . In the reasoning set out in the
Judgment, however, Honduran sovereignty over the islands is based solely on the post-colonial
effectivités, the evidence being deemed insufficient to allow for ascertaining which of the two
Parties inherited the Spanish title to the islands by operation of the principle of uti possidetis juris

and there being no proof of any acquiescence by Nicaragua in Honduras’s sovereignty over the
islands.

3. It follows that the discussion in the opini on concerning the “territorial dispute” is the

statement of a separate, rather than dissenting, opinion. The reason why the present opinion is a
“dissenting opinion” is to be found in the “mar itime delimitation” effected in the Judgment,
because on this subject Judge Torres Bernárdez is in utter disagreement, save on one point, with the

majority’s decisions and supporting reasoning, and th is explains his vote against subparagraphs (2)
and (3) of the operative clause.

4. The point in question, and Judge Torres Bernárdez acknowledges its importance, concerns

the delimitation of the territorial sea surrounding the islands; he believes that this delimitation is in
full accord with the 1982 United Nations Convention on the Law of the Sea, in force between the
Parties. His vote against subparagraph(3) of the operative clause must be understood as thus

qualified, since, had there been a separate vot e on the section of the single maritime boundary
around the islands, Judge Torres Bernárdez would have voted in favour of it.

I. THE TERRITORIAL DISPUTE

A. The applicable law for determining sovereignty over the disputed islands

5. The section of the opinion concerning the “te rritorial dispute” begins with a reaffirmation

that the applicable law for dete rmining sovereignty over the contested islands is the law governing
acquisition of land territory: in the circumstances of the case, specifically the uti possidetis juris
position in 1821, the post-colonial effectivités and acquiescence. In oral argument Nicaragua
invoked “adjacency” without further qualification, th at is to say adjacency standing alone, but, as

stated in the opinion, mere geographical adjacency by itself, without operation of the uti possidetis
juris principle or another rule of international la w incorporating the criterion, does not constitute
territorial title under international law (Island of Palmas case).

B. The decision in the Judgment and post-colonial effectivités

6. The decision in the Judgment concerning the Republic of Honduras’s sovereignty over the

disputed islands based on the post-colonial effectivités relies on generally accepted principles
articulated in the Permanent Court’s decision in the case concerning Legal Status of Eastern
Greenland, and on the present Court’s recent jurisprudence on the subject of small islands that are
intermittently inhabited, uninha bited or of slight economic importance (Qit’aJ taradah;

Pulau Ligitan and Pulau Sipadan).

7. Judge Torres Bernárdez subscribes wholeheartedly to these findings in the Judgment, for

the evidence before the Court weighs heavily in favour of Honduras. While the various evidentiary
offerings are variable in number and probative va lue, as a whole they provide ample proof of - 4 -

Honduras’s intent and will to act à titre de souverain and of the effective exercise and manifestation
of its authority over the islands and in the adjacent waters. Confronted with the Respondent’s

post-colonial effectivités, Nicaragua was unable to prove the existence of a single post-colonial
effectivité of its own in respect of the contested isla nds. Further, the fact that Honduras obtained
title to the islands by a process of acqui sition based on post-colonial effectivités can hardly give
rise to any conflict with the holder of a title based on uti possidetis juris , since Nicaragua is just as

lacking in post-colonial effectivités in the islands as it is in title by way of uti possidetis juris.

C. Honduras’s uti possidetis juris in the disputed islands

8. The opinion next turns to an examinati on of the applicability of the international law
principle of uti possidetis juris to the dispute as to sovereignty over the islands, noting, as observed
in the Arbitral Award made on 23December1906 by KingAlfonsoXIII of Spain: “the Spanish

provinces of Honduras and Nicaragua were gradually developing by historical evolution in such a
manner as to be finally formed into two distinct administrations (intendencias) under the
Captaincy-General of Guatemala by virtue of the prescriptions of the Royal Regulations of
Provincial Intendants of New Spain of 1786, whic h were applied to Guat emala and under whose

régime they came as administered provinces till their emancipation from Spain in 1821” (United
Nations, Reports of International Arbitral Awards (RIAA), Vol. XI, p. 112).

9. In 1821, upon succeeding to independence, the Republic of Honduras and the Republic of
Nicaragua freely accepted the uti possidetis juris principle, which had been formulated a few years
earlier as an objective criterion to facilitate the peac eful settlement of potential territorial issues for
the new Spanish-American Republics. The principle was incorporated into the constitutions of the

Republic of Honduras and the Republic of Nicaragua and into their trea ties. For example,
ArticleII, paragraph3, of the Gámez-Bonilla Treaty of 7October1894 pithily expresses the very
core of the uti possidetis juris principle: “It is to be understood that each Republic is owner of the
territory which at the date of independence constituted, respectively, the provinces of Honduras and

Nicaragua”. This provision served as the basis for the delimitation carried out between 1900 and
1904 by the Mixed Commission formed under the Treaty and for the later delimitation under the
1906 Arbitral Award.

10. The opinion notes the strong opposition historically encountered from European legal
scholars to universal application of the uti possidetis juris principle as a positive norm of general
international law. However, once the intangibility of boundaries inherited upon decolonization had

gained general acceptance among African States, recognition of the principle of uti possidetis juris
became so widespread that a Chamber of the Inte rnational Court of Justice was able to state in
1986: “Uti possidetis juris ... is therefore a principle of a general kind which is logically
connected with this form of decolonization wher ever it occurs.” (Frontier Dispute (Burkina

Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 , p.566, para.23.) In 1992, another
Chamber of the Court was prompted to apply th e principle (Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras: Nicaragua intervening)). More recently, the principle was applied
in 2005 by a third Chamber in the case concerning Frontier Dispute (Benin/Niger).

11. The principle has on occasion also been cited in cases coming before the full Court,
notably in the case concerning Maritime Delimitati on and Territorial Questions between Qatar and

Bahrain, but there was no need for the Court to ap ply it because the case di d not involve State
succession. This problem did not arise in the present case, concerning as it does a precise instance
of decolonization. Thus, the Court has had no di fficulty in the present Judgment in affirming the
applicability of uti possidetis juris as a principle of general international law to the dispute over the - 5 -

islands in this case, because the principle covers disputes over delimitation in the strict sense as

well as those as to the holder of title to a partic ular land, island or maritime area (disputes over
attribution).

12. On the question of applicability of the principle per se to the contested islands and on the

notion of possession as it relates to uti possidetis juris, the majority and Judge Torres Bernárdez are
of the same view. Where they part ways is in respect of weighing the evidence, specifically the
best method for assessing the evidence in the light of the nature of the Spanish Crown’s original

title in its former territories in the Americas and of the characteristics and aims of the American
legislation. JudgeTorresBernárdez believes th at the present Judgment confirms the difficulties
still encountered in applying uti possidetis juris to a particular area when the internal law referred
to by the Latin genitive juris is an historical jus such as that which the Spanish Crown applied in

America over more than three centuries.

13. In the view of the majority, it cannot be said that the application of this principle to

Bobel Cay, Savanna Cay, South Cay and Port Royal Cay ⎯ islands of very minor importance lying
far off the mainland ⎯ would settle the issue of sovereignty over them (paragraph163 of the
Judgment). According to the Judgment, there was no clear-cut administrative delimitation between
different provinces of the Captaincy-General of Guatemala in respect of the islands; providing

security, preventing smuggling and taking other step s necessary to safeguard the Crown’s interests
in the islands were probably the responsibility of the Captaincy-General itself.

14. Judge Torres Bernárdez does not subscribe to the majority’s hypothetical conclusion on
this point, as it disregards the fact that any exerci se of direct authority by the Captaincy-General of
Guatemala over any place or area in a province in no way altered that province’s territory (see:
Arbitral Award of 1906, RIAA, Vol. XI, p. 113). In his view, where the uti possidetis juris position

must be proved retroactively, it is not always possible to obtain legislative or like documents
specifying the ownership or extent of the territories in question or showing the exact location of
provincial boundaries. It then becomes necessary, in attempting to reconstruct the position, to take
into consideration all the evidence and additional information made available through historical and

logical interpretation. Further, it must be kept in mind that evidence in r espect of the territorial
facet of uti possidetis juris is often very useful in clarifying the delimitation aspect and vice versa.

15. Identifying and proving title to the dis puted islands pursuant to uti possidetis juris in this
case is, in JudgeTorresBernárdez’s opinion, greatly facilitated by the fact that the King of Spain
defined the territories of the provinces of Nicaragua and Honduras on the eve of independence in
the reasoning supporting his 1906Arbitral Award made on the basis of the principle of

uti possidetis juris as set out in the Gámez-Bonilla Treaty of 1894. On this subject the Arbitral
Award states, inter alia: (a) that the Commission of investigation had not found that the expanding
influence of Nicaragua had extended to the north of Cape Gracias a Dios, and therefore not reached
Cape Camarón, there therefore being no reason to select the latter cape as a frontier boundary with

Honduras on the Atlantic coast, as Nicaragua had claimed, and (b) that the Commission of
investigation had found that the extension of Honduran jurisdiction to the south of
Cape Gracias a Dios had never been clearly defined and that in any case it had been ephemeral,

whereas Nicaragua’s influence had been exercised in a real and permanent manner as far as that
cape, it accordingly not being appropriate for the common boundary on the Atlantic coast to be
Sandy Bay, as Honduras had claimed.

16. It was on the basis of this assessment of the fully documented uti possidetis juris position
in 1821 that the arbitrator in the 1906Arb itral Award determined the extreme common boundary - 6 -

point on the coast of the Atlantic between the Republic of Honduras and the Republic of Nicaragua
to be the mouth of the RiverCoco, Segovia or Wa nks where it flowed out in the sea, close to

Cape Gracias a Dios, taking as the mouth of the ri ver the mouth of its principal arm between Hara
and the Island of San Pío where the cape is s ituated. The Court’s Judgment of 18 November 1960
confirms that the arbitrator’s decision was based on the principle of uti possidetis juris:

“Nicaragua contends that the arbitrator fixed what he regarded as a natural
boundary line without taking into account the Laws and Royal Warrants of the
Spanish State which established the Spanish administrative divisions before the date
of Independence. In the judgment of the Court this complaint is without foundation

inasmuch as the decision of the arbitrator is based on historical and legal
considerations (derecho histórico) in accordance with paragraphs 3 and 4 of Article II
[of the Gámez-Bonilla Treaty].” (Arbitral Award Made by the King of Spain on
23 December 1906 (Hondurasv. Nicaragua), Judgment, I.C.J. Reports 1960 , p. 215;

emphasis added.)

17. In JudgeTorresBernárdez’ s view, the substance of the evidence and other information

supporting the Arbitral Award of 1906 and the Court’s 1960Judgment, that evidence and
information being both considerable in quantit y and unassailable in quality and authoritativeness,
makes it essential for a judicial dete rmination of the uti possidetis juris position in the contested
islands. Further, these decisions are binding, for, as pointed out by a Chamber of the Court: “The

award’s view of the uti possidetis juris position prevails and cannot now be questioned juridically,
even if it could be questioned historically.” (Land, Island and Mar itime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 401, para. 67.)

18. It is therefore clear to the author of the opinion that the uti possidetis juris position in
1821 saw the coast of Honduras stretching northwards from the extreme common point of the land
boundary on the Atlantic coast, situated in the m outh of the principal arm of the River Coco where

it flowed out in the sea close to Cape Gracias a Di os, up to the boundary with Guatemala, and the
coast of Nicaragua extending to the south of the same extreme common boundary point up to the
boundary with Costa Rica. Thus, we know precisely what were the Parties’ coastlines in 1821 and,
accordingly, we know the reference point allowing for unproblematic application of the notion of

“adjacent island” under historical Spanish law as a general criterion for attributing islands to
administrative entities; this notion, by the way, is much broader than that of “coastal island” under
contemporary international law, because an island defined or treated as an “adjacent island” can lie
far from the mainland.

19. For example, islands such as Aves, Clippe rton, Swan, San Andrés and others have been
considered “adjacent islands” even though situated a considerable distance from the mainland.

Thus, the fact that the islands in dispute in the present case lie from 27 to 32miles from the
Honduran coast north of Cape Gracias a Dios do es not preclude their characterization as “adjacent
islands” of the province of Honduras under historical Spanish law. Further, the notion of “adjacent
island” under that law was much more flexible than under contemporary international law. It was

in fact merely a residual rule in that it could be set aside at any time by a specific normative
provision to the contrary enacted by the King, e.g. the Royal Order of 1786 on the island of Aves or
the Royal Warrant of 1803 on the islands of San Andrés.

20. But Nicaragua has offered no evidence of an y specific decision by the King in favour of
the province of Nicaragua in respect of the islands involved in the present case. Accordingly, in
the view of Judge Torres Bernárdez, the delimita tion of the land boundary effected by the Arbitral

Award of 1906 enables a judicial response under the doctrine of uti possidetis juris to the question - 7 -

of sovereignty over the islands, because the four cay s in question lie north of the 15th parallel, off
and in the vicinity of Honduras’s mainland coast and nearer to it than to Nicaragua’s mainland

coast south of that parallel.

21. Under these circumstances, if account is take n of the general criteri on of attribution of

“adjacent islands” under historical Spanish law, sovereignty over the cays pursuant to the
uti possidetis juris principle undoubtedly belongs, in JudgeTorresBernárdez’s opinion, to the
Republic of Honduras, because, as determined in the Arbitral Award, the authorities in the province
of Nicaragua in 1821 neither had nor exercised any jurisdiction in land, island or maritime areas

north of Cape Gracias a Dios.

22. Moreover, the Parties’ post-1821 conduct c onfirms this conclusion: for example, the
diplomatic Note of 23November1844 to Her Britannic Majesty from the Minister representing

both Honduras and Nicaragua, which recognizes Nicar agua’s sovereign right along the Atlantic
coast but only from Cape Gracias a Dios in the north to the boundary line separating Nicaragua and
CostaRica. Further, under treaties entered into in the nineteenth century between Spain and the

Republic of Nicaragua(1856) and between Spain and the Republic of Honduras(1860), the
predecessor State relinquished its title to the mainland and island territories of the colonial
provinces. The Constitutions of the two Republics also include the expression “adjacent islands” in
their respective definitions of national territory.

23. It is also pointed out in the opinion that Nicaragua sought in the arbitration proceedings
to obtain recognition of a boundary line running along the 85th meridian west, which passes above

Cape Camarón, and following that meridian to the sea, leaving Swan Island to Nicaragua. As we
have seen, however, the arbitrator did not accept Nicaragua’s argument and ⎯ pursuant to the
principle upholding the uti possidetis juris position of 1821 ⎯ fixed the extreme common boundary
point of the two Republics in the mouth of the Rive r Coco close to Cape Gracias a Dios, because,

as observed in the Arbitral Award of 1906, the “ documents” described Cape Gracias a Dios as the
boundary point of the “jurisdictions” which th e Royal Decrees of 1745 assigned to the Governors
of the provinces of Honduras (Juan de Vera) and Nicaragua (Alonso Fernández de Heredia). Let us

add that the Royal Warrant of 30November1803 concerning the islands of San Andrés and that
part of the Mosquito Coast from Cape Gracias a Dios to the Chagres River confirms the role played
by that cape as the jurisdictional boundary between the provinces of Honduras and Nicaragua.

D. Acquiescence by Nicaragua

24. If Nicaragua still believed after the Court’ s 1960 Judgment regarding the Arbitral Award
made by the King of Spain that it was entitled to th e disputed islands north of the 15th parallel, it

should have said so earlier. But Nicaragua failed to make that cl ear either before or after the
maritime delimitation dispute crystallized in 1982. For example, when the President of Nicaragua
signed the original text of the 1998Free Trade Agreement, Nicaragua had not yet expressed any
claims to the islands in dispute in the present pr oceedings (paragraph 226 of the Judgment). It was

not until 21 March 2001 that Nicaragua asserted claims to these islands.

25. In remaining silent over the years, Nicar agua engaged in conduct which could have led

Honduras to believe that it accepted the uti possidetis juris position vis-à-vis the disputed islands,
as that position had, in JudgeTorresBernárdez’s opinion, been binding on the Parties ever since
the 1906 Arbitral Award fixed the endpoint of the la nd boundary at the mouth of the River Coco in
the sea close to Cape Gracias a Dios. Further, under international law, Nicaragua, to safeguard the

rights claimed in the present proceedings, should have exercised greater vigilance and expressed
clearer opposition in respect of Honduras’s post-colonial effectivités in the islands. - 8 -

E. Conclusion

26. It is pursuant to the foregoing considera tions that JudgeTorresBernárdez is of the
opinion that the legal basis for Honduras’s sovereignty over BobelCay, SavannaCay,
PortRoyalCay and SouthCay is threefold, the post-colonial effectivités and Nicaragua’s
acquiescence reinforcing the legal title to the isla nds held by the Republic of Honduras since 1821

by virtue of the principle of uti possidetis juris.

II.D ELIMITATION OF THE MARITIME AREAS BY A SINGLE MARITIME BOUNDARY

A. The rejection of the “traditional maritime boundary” claimed by Honduras

27. Honduras defended the existence of a so- called “traditional” maritime boundary running
along the 15th parallel north, through the territorial s ea and beyond, based initially on the principle

of uti possidetis juris (for the 6nautical miles of territoriawaters from the colonial period) and,
subsequently, on a tacit agreement between the Parties concerning all the areas to be delimited by
the Court in the present case. However, the Cour t, after considering the arguments and numerous
evidentiary offerings submitted by Honduras, as well as the arguments and evidence to the contrary

from Nicaragua, concludes “that there was no tacit agreement in effect between the Parties in
1982 ⎯ nor a fortiori at any subsequent date ⎯ of a nature to establish a legally binding maritime
boundary” (paragraph 258 of the Judgment).

28. For the majority, the 15th parallel, at cer tain periods (1961-1977), “appears to have had
some relevance in the conduct of the Parties”, but the events concerned spanned a short period of

time. However, JudgeTorresBern árdez emphasizes in his opinion that the period in question is
considerably longer than that in the Gulf of Maine case. In any event, he holds that the evidence
submitted by Honduras, notably that concerning the oil and gas concessions and fisheries
regulations and related activities, argues decisively in favour of the idea of the existence of a tacit

agreement between the Parties on the “traditiona l” maritime boundary. He therefore does not
subscribe to the negative finding of the majority on this question, although he acknowledges that it
is a judge’s prerogative to weigh and take a position on the evidence presented by the Parties.

29. In this respect, the opinion contains two particular comments. In the first, the judge
declares his disagreement with the interpretati on made by the Judgment of the Note from the
Minister Dr.PazBarnica of 3May1982. The second concerns Nicaragua’s reaction to the

Honduran Note of 21 September 1979 which stated th at the seizure at sea of a Honduran vessel by
the Nicaraguan navy on 18September1979 took place “eight miles to the north of the fifteenth
parallel that serves as the limit between Honduras and Nicaragua (Counter-Memorial of Honduras,
p.48, para.3.38; emphasis added). The Judgment , however, attributes no legal effect to the fact

that, in its reply, Nicaragua neither contested nor qualified Honduras’s assertion.

B. Non-application by the Judgment of succession to the territorial waters

from the colonial period under uti possidetis juris

30. In both its written pleadings and at the h earings, Honduras also raised the question of the
Parties’ succession to the maritime areas of the co lonial period pursuant to uti possidetis juris . In
this respect, the Judgment declares that in certain circumstances, such as those concerning historic

bays and territorial seas, the uti possidetis juris principle could play a role in maritime delimitation
(paragraph232), thereby confirming the relevant jurisprudence of the 1992Judgment in the case
concerning the Land, Island and Maritime Frontie r Dispute (ElSalvador/Honduras; Nicaragua

intervening). In his opinion, Judge Torres Bernárdez fully endorses this point of law set out in the
Judgment. Unfortunately, the majority has not drawn the necessary conclusions from this
declaration for the present case. - 9 -

31. Honduras’s position on the question concerned is summarized in the opinion as follows:
(1)the principle of uti possidetis juris referred to in the Gámez-Bonilla Treaty, as well as in the

1906 Award of the King of Spain, is applicable to the maritime area off the coasts of Honduras and
Nicaragua; (2)the 15th parallel constitutes the line of maritime delimitation resulting from the
application of that principle; (3)Honduras and Ni caragua succeeded, in 1821, to a maritime area
consisting of a 6-mile territorial sea; and (4) the uti possidetis juris gives rise to a presumption of

Honduran title to the continental shelf and exclusive economic zone north of the 15th parallel.

32. The reactions of JudgeTorresBernárd ez to each of these elements of the Honduran

position are as follows:

Reaction to point (1): No doubt. At present, as a principle of general international law,
uti possidetis juris is applicable to both land and mariti me delimitations, as is upheld by the

Judgment. Moreover, the Gámez-Bonilla Treaty constituted a friendly settle ment of “all pending
doubts and differences” in order to “demarcate on the spot the dividing line which is to constitute
the boundary between the two Republics” (Art. 1 of the Treaty). The word “boundary” is thus not
qualified by the adjective “land”. The practice of the Parties bears out this interpretation,

moreover, as the MinutesII of the Mixed Commi ssion of 12June1900 effected a demarcation
between the two republics in the part of the Bay or Gulf of Fonseca “contiguous to the coastline of
both States without there being a distance of 33 km between their coasts” (I.C.J. Pleadings, Arbitral
Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vol. I, p. 235).

See also the Note of 19March1912 from the Ni caraguan Minister for Foreign Affairs indicating
the reasons relied on by Nicaragua in order to regard the King of Spain’s Award as null and void
(ibid., pp. 292-293).

Reaction to point (2): Yes, if the statement is understood to apply to the maritime area of the
6-nautical-mile territorial sea from the colonial period; no, however, as far as the whole of the
“traditional maritime boundary” is concerned, as JudgeTorresBernárdez agrees with Nicaragua
that title to the exclusive economic zone or the continental shelf is an obviously modern legal

notion which did not exist in 1821.

Reaction to point (3): No doubt, under the principle of uti possidetis juris.

Reaction to point (4): Judge TorresBernárdez understands this point as meaning that the
uti possidetis juris principle was used to determine the coasts of each Party, which in turn form the
basis of the title governing the delimitation between the Parties to the present case of the maritime
areas comprising the continental shelf and exclusive economic zones.

*

33. It is noted in the opinion that the Judgment of the Court acknowledges ⎯ as do both
Parties ⎯ that the 1906Arbitral Award fixed the extreme common point of the land boundary

which it established on the Atlantic coast. In wh ich case, how can it be said that nothing in the
1906Arbitral Award indicates that the 15th parallel of latitude north has been regarded as
constituting the boundary line? There is at least one point, the extreme common boundary point on
the Atlantic coast resulting from the Arbitral Awa rd, which is the “starting uti possidetis juris

point” of a line delimiting the territorial seas between the Parties and, in that respect, it can be
invoked as evidence of succession to a maritime dividing line along the horizontal line of the
15thparallel north for the 6nautical miles under c onsideration here, since historical Spanish law
used parallels and meridians to delimit maritime areas. - 10 -

34. The fact that this point is located in th e vicinity of the 15th parallel north close to
CapeGraciasaDios and not, for example, on a parallel or a meridian passing close by

CapCeamarón, PunP tatuca, CapFalso or Sandy Bay is undoubtedly, in
JudgeTorresBernárdez’s view, a very significant indication or piece of evidence for a judge or
arbitrator involved in applying the uti possidetis juris principle. The Chamber formed for the case
Land, Island and Maritime Frontier Dispute (E lSalvador/Honduras; Nicaragua intervening)

understood this point well when it adopted methods of assessing and interpreting the evidence that
were in keeping with the essentially historical character of that principle in Latin America.

35. According to the opinion, it is correct to say that the Arbitral Award of 1906 did not
carry out any maritime delimitation in the Atlant ic, but much less so to state that it “is not
applicable” to the present maritime delimitation between the Parties. It is necessary to examine the
reasons for the Arbitral Award in order to ga in a proper view of the uti possidetis juris position in

1821 along the Parties’ coasts and in their resp ective adjacent maritime areas, because the land
dominates the sea. And the land ⎯ the coastal fronts of the Parties ⎯ was defined by the
1906 Arbitral Award and not by the resources of the exclusive economic zones located out beyond
the territorial seas.

36. As to the very different issue of the scope of the res judicata of the 1906 Arbitral Award,
what is required, according to JudgeTorresBern árdez, is to apply, where appropriate, the

jurisprudence of the Court concerning the relationship between the operative part and the reasoning
of a judgment, since res judicata does not apply only to what is materially indicated in the operative
part of an award or a judgment (see, for example, the case concerning Application of the
Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para. 26).

*

37. JudgeTorresBernárdez cannot follow the majority when the Judgment practically

ignores the historical, geographical and legal fact s set out in the reasoning of the 1906 Arbitral
Award. He emphasizes the importance of the documen tation in that arbitral case for applying the
principle of uti possidetis juris to the delimitation of the territorial seas in the present case. In his
view, an examination of the reasoning of the Ar bitral Award and the documentation in question

makes it possible to appreciate the full importance of the historical role of Cape Gracias a Dios as
the projection separating the coast of the provi nce of Honduras from that of the province of
Nicaragua, and thus to arrive at an image of the area of the 6-mile territorial sea appertaining to one

or other of these Spanish colonial provinces prior to 15 September 1821.

38. For him such an image is, moreover, su fficiently precise — for the purpose of applying
the principle of the uti possidetis juris of 1821 — to acknowledge and assert that it was indeed at

the parallel running through Cape GraciasaDios (i.e. the 15thparallel north) that, on the day of
their independence, the area of the mainland territorial sea of the Republic of Honduras came to an
end and the area of the mainland territorial sea of the Republic of Nicaragua began, to the north and
south respectively. This is, of course, a “delimitation” from 1821 and not a “demarcation” at sea in

2007. And why? Because, according to the 1906 Arbitral Award based on the historical
“documentation” provided by the Parties, it wa s CapeGraciasaDios which “fixes what has
practically been the limit or expansion or encr oachment of Nicaragua towards the north and of

Honduras towards the south” (RIAA, Vol. XI, p. 115). - 11 -

39. Reading the Judgment, JudgeTorresBern árdez sometimes has the impression that the
majority demands too much as evid ence of the uti possidetis juris of 1821 and as a definition of

what constituted, at the beginning of the nine teenth century, a maritime delimitation of the
territorial waters between the adjacent coasts of two States. One must ask whether it was
customary at the time, even in Europe, to effect collateral delimitation of territorial seas by means
of precisely defined lines in treaties concluded in du e form. There is some doubt in that respect.

Moreover, the evidence, information and geography are particularly clear for uti possidetis juris to
be applied to the delimitation of the first 6mile s of territorial sea betw een the Parties’ mainland
coasts in question, along the 15th parallel.

*

40. The opinion recalls the assertion by Honduras that the 15th parallel is the dividing line
between the Parties of the maritime area represented by the 6-mile territorial waters inherited from
Spain, on the basis of the 1906 Arbitral Award and the documentation relating to it, as well as other
evidence such as the Royal Decree of 30 November 1803 regarding the islands of San Andrés and

the Mosquito Coast from Cape GraciasaDios to the ChagresRiver, the geographical plan of the
Vice-Royalty of SantaFédeBogotá, New Kingdom of Granada(1774) (Rejoinder of Honduras,
Vol. II, Ann.232), the diplomatic Note of 23 November 1844 addressed to Her Britannic Majesty

by the Minister representing both Honduras and Nicar agua, and two expert opinions on the general
jurisdiction over land and sea of the Captaincy-Ge nerals and Governments in historical Spanish
overseas law (ibid., Ann. 266) and the issue of Honduran right s to the waters of the Atlantic Ocean
(ibid., Ann. 267).

41. During the oral arguments stage, Nicaragua attacked the first of those expert opinions by
invoking in this respect the Royal Order on coastguards (1802), the Instruction for the regulation of
coastguard vessels in the Indies (1803), the Ordinance on privateering vessels (1796, amended in

1801) and the Ordinance concerning the régime and military governance of sailors’ registration
(matrícula de mar , 1802). JudgeTorresBernárdez does not see in what way the texts of these
instruments alter the general conclusions resu lting from the opinions expressed by the Honduran

experts.

*

42. However, Nicaragua did not confine itself to discussing items of evidence. It also
presented arguments in the form of a proposition entitled “The sea, one area under one jurisdiction

in the Spanish monarchy”, according to which “t he whole sea” formed a single area, over which a
special jurisdiction, centralized in Madrid ⎯ that of the navy ⎯ exclusively applied, and finally
asserting that the Spanish Crown’s claim to a 6-mile territorial sea “tells [us] nothing with regard to
the limit of this territorial sea between the Provi nces of Honduras and Nicaragua” (paragraph 231

of the Judgment; emphasis in the original). Consequently, Nicaragua denies to the republics
created from the former colonial provinces of Honduras and Nicaragua this 6-mile maritime area as
part of their territorial inheritance from Spain, the predecessor State.

43. The opinion takes a stance on this Nicaraguan argument, as Judge Torres Bernárdez does
not subscribe to it. In his view, it corresponds to admitting that the republics established on the
territory of the former “colonial provinces” in th e Americas received no mo re than “dry coasts”

under the utipossidetis juris principle, in the same way, possibly, as the “Vice-Royalties” and
“Captaincy-Generals”, since the proposition that the sea was a single area administered by a - 12 -

centralized jurisdiction in Madrid does not lend itself to distinguishing between the “colonial
provinces” and the other administrative territorial entities established by the Spanish Crown in the

Americas.

44. JudgeTorresBernárdez points out that the Nicaraguan argument is constructed as a

syllogism, but the premisses are incorrect. First, it is not correct to claim that the whole sea formed
“one area” when historical Spanish law ⎯ in any case in the eighteenth century (Royal Decree of
17 December 1760) ⎯ distinguished between the waters under Spanish jurisdiction adjacent to the
coast (the 6miles) and the rest of the sea, without prejudice to the existence of historic waters or

bays such as those of the Gulf of Fonseca on whic h Nicaragua has a coast. Further, the Spanish
Kings of the age of enlightenment were, as elsewh ere in Europe, at the head of an absolute
monarchy in which the King’s will alone was the beginning, middle and end of all jurisdiction.

Thus in all areas, jurisdiction was centralized in the person of the King and exercised by those
entitled to hold it, both in Spain and in the Americas, by delegation of the sovereign’s power.

45. Within a given area, be it on land or at sea, in the Americas or in Spain, several

jurisdictions coexisted, with each such holder ex ercising the functions or activity that had been
entrusted to him by general legislation or the specific instructions of the monarch. The existence of
a special jurisdiction of the navy did not in any way prevent the exercising of governmental,
military or maritime powers within the 6-mile terr itorial sea by a Captain-General or a Governor,

whose jurisdiction at sea was not curbed by that of the Spanish royal navy.

46. JudgeTorresBernárdez notes in his opinion that, in the last analysis, the argument in

question is based on a conceptual confusion betw een the respective roles of the principle of
uti possidetis juris in international law and the historical Spanish law of the Americas. The
existence of a 6-mile territorial sea off the coasts of the Spanish Crown’s territories in the Americas
is a question of historical Spanish law. Howe ver, the administration of the sea by the Spanish

Crown, centralized or otherwise, is not relevant at all, since the determination of the successor
States to the Spanish monarchy, benefiting from th e date of their independence from these 6 miles
of territorial sea as part of their territorial i nheritance from the predecessor State, is a question of

international law.

*

47. After attempting to sow doubt with the a bove argument, Nicaragua finally fell back on
the non-division of the 6-mile maritime area of the territorial sea from the colonial period. It did so

in the following terms: “[t]he only thing that can be said is that, at the date of independence, a joint
sovereignty of the riparian republics arose over the waters of the Spanish Crown... and persists
until such time as the areas corresponding to each of them are delimited” (CR2007/3, p.35,
para. 82).

48. For JudgeTorresBernárdez, this amounts to acknowledging that the Republic of
Nicaragua and the Republic of Honduras did indeed succeed to the 6miles of territorial waters
from the colonial period off Cape Gracias a Dios under the principle of uti possidetis juris . As the

two Parties thus agree on the existence of a succession in 1821 to this maritime area, all that
remains is to fix the dividing line between their terri torial waters. In this respect, the opinion states
that “non-division”, purely as such, does not mean that we are dealing with a situation of joint

sovereignty. For that, the undivide d waters would have to be in a situation or state of community,
which does not exist in the present case (L and, Island and Mar itime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 599, para. 401). - 13 -

49. As regards the location and orientation of this dividing line in 1821,
Judge Torres Bernárdez considers that, if one examines all the points of law in the case, it stands to

reason that under the uti possidetis juris principle of international law, the line of the parallel
running through Cape Gracias a Dios, i.e. approximately the 15th parallel, acted as the dividing line
between the Parties for the 6-mile area of territorial waters in the Caribbean Sea during the colonial
period, since the colonial authorities of the province of Honduras did not exercise an
y jurisdiction

south of that parallel and the colonial authorities of the province of Nicaragua did not exercise any
jurisdiction north of it.

50. The Parties knew this from the early da ys of independence (see, for example, the
diplomatic Note of 23November1844), and the 1906Arbitral Award confirmed it by fixing as
res judicata the extreme common point of the land boundary as the mouth of the River Coco close
to Cape Gracias a Dios. There was thus no reason to look any further, as the conduct of the Parties

confirmed by the Arbitral Award from then on constituted the authentic expression of the
uti possidetis juris of 1821 (see, for example, Land, Island and Maritime Frontier Dispute
(ElSalvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports1992 , p. 41, para. 67).
Moreover, after the Court’s 1960 Judgment on the va lidity and binding nature of the 1906 Arbitral

Award, the Parties’ conduct was like that followi ng independence, i.e. as if the dividing line was
effectively the 15th parallel (conduct giving rise to the “traditional” maritime boundary). In any
event, since uti possidetis juris is a principle that automatically applies, the colonial administrative
divisions on land or at sea are transformed into international boundaries “by the operation of the

law”. No additional deliberate act is required (ibid., p. 565, para. 345).

51. JudgeTorresBernárdez is accordingly of the opinion that there are no grounds for the

finding in the Judgment that Honduras ought to have shown to a greater degree that the maritime
boundary should follow the 15th parallel from Cape Gracias a Dios, and produced evidence that the
colonial power had used parallels and meridians in this particular case , which was its general
practice at sea.

52. According to JudgeTorresBernárdez, su ch a standard is too demanding in terms of
assessing a uti possidetis juris situation concerning two States which, in 1821, had the same

understanding of that principle as regards the maritime area concerned. This bears out his criticism
of the Judgment for opting for a rather too mechan ical and unhistorical approach in its assessment
of the evidence regarding application of the uti possidetis juris principle.

53. Here, this has the unfortunate conseque nce of depriving Honduras of a “historic title”
which could be invoked in the present case in rela tion to the interpretation and application of
Article 15 of the 1982 United Nati ons Convention on the Law of the Sea. That is the first reason

for Judge Torres Bernárdez’s vote against subparagraphs (2) and (3) of the operative clause.

C. The ex novo delimitation of maritime areas effected by the Judgment

1. The Parties’ claims and the question of defining the “area in dispute”

54. In the present case, the Parties have a dopted fundamentally different approaches towards
the delimitation of their “single maritime boundary” in the Caribbean Sea. One initial consequence

of this divergence is, according to Judge Torres Bernárdez, that the “area in dispute” defined by the
Parties’ claims does not correspond to the “area” in which the maritime delimitation must be
effected, taking account of the geography involved. - 14 -

55. In the Judge’s opinion, the bisector line claimed by Nicaragua on the basis of all the
coastal fronts of both Parties, the line of the 15thparallel north claimed by Honduras and, for the

purposes of the argument, the 80thmeridian west form a triangular “area in dispute” which is an
entirely artificial one in the sense that it is divor ced from the reality of the geographical, legal and
historical circumstances of a case that concerns the delimitation of maritime areas situated north
and south of the mouth of the River Coco close to Cape Gracias a Dios.

56. The majority of the Court appears to presuppose, in Judge Torres Bernárdez’s view, that
an equal or almost equal sharing of the above tr iangle represents, in the present circumstances, an

equitable result. He does not agree, even t hough the ratio between the areas of the triangle
attributed to Nicaragua and those attributed to H onduras is approximately 3:4 (1:1.3) in favour of
Honduras (including a significant extension in terms of territorial sea because of the islands).
However, it must be taken into account that the bisector claimed by Nicaragua was certainly

designed to back up recent political ambitions (1994/1995), but lacked legal credibility, since it was
based on all the coastal fronts of both States regardless of their relationship with the area of
delimitation and, moreover, those fronts were repl aced by straight lines which bore no relation to
the physical geography of the coast.

57. In defining the “area in dispute”, the bi sector line claimed by the Applicant is a device
that creates a distortion and an inequitable result in this case. The Judgment does not correct this

effect. Nor did the Respondent’s main position initia lly help to restore a more balanced definition
of the “area in dispute” as regards its southern limit (Honduras’s alternative submission of an
adjusted equidistance line was presented at the h earings). Consequently, JudgeTorresBernárdez
notes that the area in which the Parties’ princi pal claims overlap is situated north of the

15th parallel, whereas the area of delimitation lies north and south of that parallel.

2. The law applicable to maritime delimitation

58. Honduras and Nicaragua having become parties to the 1982 United Nations Convention
on the Law of the Sea, the Convention is now in forc e between the Parties. The relevant articles of
the Convention are therefore applicable as treaty law in the present dispute.

JudgeTorresBernárdez approves of the statement to this effect in the Judgment (paragraph261).
However, he points out that, the weight of trad ition being what it is, the overall structure of the
Judgment is based more on the case law than on the text of the Convention, often to the detriment
of the particular nature of delimitation of the territorial sea.

3. Areas to be delimited and the methodology adopted by the Judgment: the abandonment
of equidistance and delimitation in stages in favour of the bisector method

59. Judge Torres Bernárdez does not agree w ith the Judgment as regards the methodology to
be used in order to determine the course of the single maritime boundary. His assumption is that
the Court must first and foremost apply the rules on delimitation of the territorial sea, without
forgetting that the ultimate task is to draw a single maritime boundary between the Parties that will

also be valid for other purposes (Maritime Deli mitation and Territorial Questions between Qatar
and Bahrain (Qatar v. Bahrain), I.C.J. Reports 2001 , p.93, para.174). However, the Judgment
does not do this.

60. Judge Torres Bernárdez also criticizes the fact that the J udgment rejects out of hand the
equidistance method that is specifically and expressl y referred to in Article 15 (Delimitation of the
territorial sea) of the 1982Convention on the Law of the Sea, relying in the first place on the

existence of “special circumstances” in order to c onsider the issue thereafter in terms of the - 15 -

Convention’s rules on delimitation of the exclusiv e economic zone (Art.74) and the continental
shelf (Art.83), and indeed in terms of the customary rule which it calls the “equitable

principles/relevant circumstances method” (paragraph 271 of the Judgment).

61. The efforts of recent years to make judici al decisions in this field more objective by

firstly drawing a provisional equidistance line, even if this subsequently has to be adjusted in the
light of “special” or “relevant” circumstances, have thus been set aside. This is a relapse into
sui generis solutions, i.e. into pragmatism and subjectivit y. The least that can be said is that the
Judgment does not put the equidistance method at the centre of the approach to be followed,

relying to this end on “difficulties” which are said to make it impossible for the Court to identify
base points and construct a provisional equidistance line (paragraph 280 of the Judgment).

62. It is true that neither Party has as its main argument a call for a provisional equidistance

line as the most suitable method of delimitation. Ho wever, this in no way means that the Parties’
positions regarding the equidistance method are the same.

63. One of the Parties, Honduras, put forward a provisional equidistance line drawn from
two base points, situated on the Parties’ mainland coasts respectively north and south of the mouth
of the River Coco, and also presented to the Court in its final submissions, as an alternative to the
line of the 15thparallel, an adjusted equidistance line (approximately azimuth78°48'). On the

other hand, Nicaragua maintained throughout the proceedings and in its final submissions that the
method of equidistance/special or relevant circumstances is not appropriate for the purposes of
delimitation in the present case because of the in stability of the mouth of the RiverCoco. For

Nicaragua, the Court was to draw the whole of the single maritime boundary on the basis of the
bisector of the angle formed by two straight lines that were deemed to represent the entire coastal
front of both Parties (approximately azimuth 52° 45' 21”).

64. In order to justify the Court’s decision not to use the equidistance method in the present
case, even as an initial provisional measure, the Judgment points to the geographical configuration
of the coastline either side of Cape Gracias a Dios and to the marked instability of the delta of the
River Coco at its mouth. Judge Torres Bernárdez agrees that these are physical circumstances to be

taken into account in the delimitation exercise, but in his view, neither of them justifies abandoning
the equidistance method in favour of one such as the bisector, which creates far more serious
problems of law and equity in this case than equidistance.

65. In this context, JudgeTorresBernárdez poi nts out that where physical circumstances of
this type are present, the solution advocated by the 1982 Convention on the Law of the Sea is to use
the “straight baselines” method to identify the base points (Arts. 7 and 9 of the Convention), rather

than a method such as the bisector, based on m acro-geography, which is unable in the present
circumstances to safegua rd the principle of non-encroachment in the areas situated off the
Honduran mainland coastal front.

66. As explained in the opinion, the line of the single maritime boundary in the Judgment,
which begins by delimiting only the territorial seas of the two States for a certain distance, passes
too close to the mainland coast of Honduras becau se of the use of the bisector method. For

JudgeTorresBernárdez, this line is therefore ine quitable, especially in a maritime area in which
security and defence interests are bound to prev ail over economic considerations. Moreover,
JudgeTorresBernárdez is not at all convinced that “the construction of an equidistance line from
the mainland is not feasible” (paragraph283), nor by the argument that the existence of only two - 16 -

base points is a circumstance that precludes the equidistance method (see Land and Maritime

Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), I.C.J. Reports 2002 , p.443,
para. 292).

4. The bisector in the Judgment and its construction (coastal fronts)

67. The Judgment has not adopted the delimitation lines requested by either of the Parties.
With regard to Honduras, it rejects both the line of the 15thparallel and an adjusted equidistance
line. But the Judgment also rejects the bisector of azimuth 52°45'21” requested by Nicaragua,

which was based on lines representing the entire coastal front of both countries, which the
Applicant constructed as straight lines through a process of “planing” or “smoothing” the coastal
geography of Honduras.

68. However, the Judgment has chosen to use the bisector method to determine the course of
the single maritime boundary established by the Court itself, since for the majority, such a method
has proved viable in circumstances where equidistance is not possible or appropriate

(paragraph287 of the Judgment). JudgeTorres Bernárdez nevertheless notes that the Court’s
jurisprudence referred to in the Judgment in support of this finding does not concern cases in which
delimitation of the territorial sea was at issue.

69. In his opinion, JudgeTorresBernárdez poi nts out that there is a total symmetry in the
Judgment between the reasoning which has led the ma jority to reject the equidistance method and
that which has persuaded it to adopt the bisector method. For him, however, there is no cause and

effect relationship between these two methods. A bisector is not the only possible means of
achieving an equitable solution in this case. In fact it does the opposite, since in terms of maritime
areas, the bisector method imposes on one Party alone, Honduras, the burden of a geographical and
morphological situation (the coastal configuration; the instability of the mouth of the River Coco)

(paragraph292 of the Judgment) that is shared by both Parties, as it exists along the entire
coastline, both north and south of the mouth of the RiverCoco, as the Judgment itself
acknowledges.

70. But the Judgment does not make any equitable adjustment of the bisector line in favour
of Honduras, to compensate for this burden whic h Honduras has to bear alone. The rejection of
Nicaragua’s straight line from CapeGraciasaDios to the frontier with Guatemala has nothing to

do with equity. All the Judgment has done in this respect is to restore the actual coastal geography
of Honduras which had been “planed’ in the Applic ant’s proposal. Furthermore, the choice of the
bisector method has had the effect of extending the relevant coasts beyond those directly concerned
by the area of delimitation. Hence the coast from CapeFalso to LagunaWano put forward by

Honduras was rejected in favour of longer coastal fronts.

71. In this context, the Judgment rejects a coastal front extending from Cape Camarón to the

Río Grande (producing a bisector of azimuth 64° 02'), because the line would run entirely over the
Honduran mainland. But the Judgment also rejects the front from CapeFalso to PuntaGorda, on
the grounds that its length (some 100km) is not su fficient to reflect a coastal front more than
100nautical miles out to sea, although the azimuth of the angle of the bisector is nonetheless

70°54'. This was not enough for the majority, which finally settled on a Honduran coastal front
extending from Cape Gracias a Dios to Punta Patuca (even though the coast between CapeFalso
and PuntaPatuca does not directly adjoin the area of delimitation) and a Nicaraguan front from
CapeGraciasaDios to Wouhnta, which the Judgm ent considers to be of sufficient length to - 17 -

account properly for the coastal configuration in the disputed area. The bisector of the angle

formed by these two coastal fronts has an azimuth of 70°14’41.25”. This is the azimuth of the
bisector in the Judgment.

72. Judge Torres Bernárdez compares this azimuth in the Judgment with that of a provisional

equidistance line (approximately 78°48') drawn fro m base points situated north and south of the
mouth of the River Coco, noting that the difference between the two azimuths is more than 8°. For
the judge, this is a huge disparity. He cannot accept it as the equitable solution advocated by the

1982Convention on the Law of the Sea. Choosi ng a method to overcome the physical problems
that are shared by both Parties’ coastal fronts cannot justify a delimitation that is inequitable for
one of the Parties.

5. Application of equidistance to the delimitation around the islands

73. Having rejected Nicaragua’s claim that would enclose the islands attributed to Honduras
within a territorial sea of 3nautical miles, the Court then turns to delimiting the territorial sea

around the islands, in accordance with Artic les3, 15 and 21 of the 1982United Nations
Convention on the Law of the Sea, which is the law applicable be tween the Parties.
Judge Torres Bernárdez entirely agrees with the Court’s decisions, and therefore with the course of
that section of the maritime boundary which effects the delimitation around the islands.

74. Each of the islands concerned ⎯ BobelCay, SavannaCay, Port Royal Cay and

South Cay for Honduras and Edinburgh Cay for Nicaragua ⎯ is accorded a 12-mile territorial sea,
and the overlapping areas between these territorial seas of Honduras and Nicaragua, both north and
south of the 15th parallel, are delimited by appli cation of the equidistance method. The Court first
drew a provisional equidistance line, using the co -ordinates for these islands as the base points for

their territorial seas, and then constructed the me dian line in the overlapping areas. Lastly, having
established that there were no special circumstan ces warranting an adjustment, it adopted this
provisional line as the line of delimitation (paragraph 304 of the Judgment).

75. As a result of the application of equidistance, the course of the delimitation line around
the islands lies partly south of the 15th parallel. This is not surprising, as the existence of any kind
of maritime boundary along that parallel, based on the tacit agreement of the Parties, had already

been rejected by the majority of the Court (see above).

6. The demarcation by the Mixed Commission of 1962 and the starting-point of the single
maritime boundary

76. The two Parties left the Court the task of establishing the starting-point of the single
maritime boundary, and the Judgment sets it 3mile s out to sea from the point identified in the
River Coco by the Mixed Commission in 1962, as Honduras wished, but the majority has placed it

along the azimuth of the bisector, as proposed by Nicaragua (paragraph 311 of the Judgment). The
co-ordinates of the starting-point thus decided by the Court are 15°00'52” of latitude north and
83° 05' 58” of longitude west (subparagraph (2) of the operative clause of the Judgment).

77. JudgeTorresBernárdez disagrees with th e location of this point as decided by the
Judgment because, in his view, it should have been a point equidistant from the base points situated
north and south of the mouth of the River Coco. The point chosen by the majority is not a neutral

one in relation to the principal claims of the Par ties, which is the reason why he has voted against
subparagraph (2) of the operative clause of the Judgment. - 18 -

78. On the other hand, Judge Torres Bernárd ez endorses the Court’s finding that the Parties
must negotiate in good faith with a view to agr eeing on the course of the delimitation line in the

territorial sea between the endpoint of the land boundary as established by the 1906 Arbitral Award
and the starting-point of the maritime delimitation in the present Judgment.

7. The endpoint of the single maritime boundary, bilateral treaties and third States

79. In paragraphs314 to 319 of the Judgme nt, the Court considers the various possibilities
open to it as regards the question of the endpoint of the line and analyses the potential third-State

interests beyond the 82ndmeridian, namely tho se of Colombia and Jamaica. Following this
analysis, it arrives at the conclusion that it cannot draw a delimitation line that would intersect with
the line established by the 1993 Treaty between Colombia and Jamaica, but that it can state that the
maritime delimitation between Honduras and Nicaragua extends beyond the 82nd meridian without

prejudicing Colombia’s rights under its treaty with Nicaragua of 1928 and with Honduras of 1986.

80. Hence the Judgment states that the Court may, without specifying a precise endpoint,
delimit the maritime boundary beyond the 82ndme ridian without affecting third-State rights

(paragraph319 of the Judgment and sketch-map No.7). Unfortunately, JudgeTorresBernárdez
does not have the same certainty as the Judgment as regards this finding. It is true that, in its
reasoning, the Judgment adds an important detail, namely that “[the Court’s] consideration of these

interests is without prejudice to any other legitima te third party interests which may also exist in
the area” (paragraph318). The legitimate interests of third States “in the area” delimited by the
Judgment would thus seem duly protected. Howeve r, there remains the qu estion of the rights and
legitimate interests of third States in the maritime areas adjacent to the area that has been delimited.

81. In JudgeTorresBernárdez’s view, the pr esence of Nicaragua north of the 15thparallel
and east of the 82nd meridian can only prejudice the rights and interests of Colombia, since the
latter is no longer protected by the delimitation line of the 1986Treaty with Honduras and is

therefore exposed to claims from Nicaragua to the south and east of that line. This is the first
reason why Judge Torres Bernárdez is opposed to the delimitation east of the 82nd meridian that is
contained in the Judgment.

82. There is a second reason, however, sin ce the delimitation effected by the present
Judgment takes no account of the maritime delimitation treaty conc luded in 1986 between
Honduras and Colombia, even though this is a treaty in force between the two States, registered

with the Secretariat of the United Nations and invoked by Honduras in the present case.
Judge Torres Bernárdez finds this surprising. Why should it be so? Because the dispute that exists
regarding this treaty between the Parties to the present case was not included by the Applicant,

Nicaragua, within the subject of the dispute as de fined in its Application instituting proceedings,
and nor did it ask the Court, in its final submissions, to rule on any legal aspect of the dispute
between the Parties concerning that treaty. Yet this raises a jurisdictional issue deserving of
particular consideration which is absent from the Judgment.

83. In other words, the status of the treaty instrument in question should have been
determined beforehand, since a maritime delimitation line cannot settle a dispute concerning the
treaty-making power of States and/or the validity of the treaties thus concluded, just as it could not

settle in the present case the dispute between the Parties concerni ng sovereignty over the contested
islands. In this respect, Judge Torres Bernárdez re calls that, according to Articles 74 and 83 of the
1982 United Nations Convention on the Law of the Sea, the delimitation of the exclusive economic

zone and of the continental shelf must be effected “on the basis of international law, as referred to
in Article38 of the Statute of the International C ourt of Justice, in order to achieve an equitable
solution”. - 19 -

8. Conclusion

84. JudgeTorresBernárdez has voted against subparagraphs(2) and (3) of the Judgment’s
operative clause because he believes that the line of single maritime delimitation contained in the
Judgment does not entirely comply with the rele vant requirements of the 1982United Nations
Convention on the Law of the Sea, except as regards the section around the islands (the second

section of the line).

85. For the first section, which begins by delimiting for a certain distance the Parties’

mainland territorial seas, it is obvious that the general rule of equidistance contained in Article 15
of the 1982Convention has not been applied. This has been rejected for the first time in the
Court’s jurisprudence in relation to the territori al sea, and from the start of the delimitation
exercise, in favour of a bisector which is unable to secure the principle of non-encroachment with

regard to Honduras’s mainland coasts. In the Judg ment, the bisector method chosen is justified on
the grounds that the configuration of the mainland coasts in question and the instability of the
mouth of the RiverCoco are said to constitute “special circumstances” within the meaning of the
second sentence of the above-mentioned Article15. JudgeTorresBernárdez cannot accept this

justification, since the remedy for such situa tions under the 1982Convention is not the bisector
method, but that of straight baselines (Art. 7, para. 2, and Art. 9 of the Convention). That being so,
and the Judgment having rejected the historic titles (uti possidetis juris) relied upon by Honduras,
Judge Torres Bernárdez does not find it in any way “necessary” to delimit the territorial sea other

than by the median line (equidistance method) provided for in Article 15 of the 1982 Convention.

86. As regards the third section, which deli mits only the exclusive economic zone and the

continental shelf, the bisector in the Judgment is likewise unable, in Judge Torres Bernárdez’s
view, to achieve an equitable solution. Firstly, the construction of the bisector makes it necessary
to bring into play a Honduran coast (from CapeFalso to PuntaPatuca) which does not directly
adjoin the area of delimitation. Secondly, and above all, the azimuth of the angle of the Judgment’s

bisector line is not justified by the relationshi p between the coasts directly involved in the
delimitation, nor by the historical circumstances of the dispute. A bisector line where the azimuth
of its angle favours one of the Parties by a difference of 8° compared with the azimuth of the angle
of the provisional equidistance line drawn from base points situated north and south of the

River Coco is not an equitable result, since in the present case, the Judgment invokes no “relevant
circumstance” that would warrant adjusting the prov isional equidistance line on such a scale. This
is particularly true when one bears in mind that the circumstance of the coasts and river mouth
referred to above is common to the coastal fronts of both States. Finally, the fact that the line

delimiting the third section extends beyond the 82nd meridian raises jurisdictional questions
concerning the treaty concluded in 1986 betw een Honduras and Colombia, and as regards
Colombia’s rights and legal interests in the mariti me areas lying south and east of the delimitation
effected by that treaty.

Declaration of Judge ad hoc Gaja

Judge ad hocGaja declared that, while he was in agreement with the rest of the operative
part of the Judgment and with most of the reasons given, he did not share the view that maritime
areas lying south of the 14° 59.8' N parallel should be attributed to Honduras as part of its territorial
sea. Under Article 3 of the United Nations Conven tion on the Law of the Sea, every State has the

right to establish the breadth of its territorial sea up to a limit not exceeding 12nautical miles.
Honduras constantly considered ⎯ also in its final submissions ⎯ that the territorial sea pertaining
to the cays in the Media Luna group did not exte nd in a southerly direction beyond the 14° 59.8' N

parallel.

___________