Written Statement of Nicaragua

I
INTERNATIONAL COURT OF JUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

CASE CONCERNING THE LAND, ISLAND

AND MARITIMEERONTIER DISPUTE

(EL SALVADORIHONDURAS : NICARAGUA iniervening)

VOLUME VE
Written Statement of Nica;Written Observations of El Salvador
and Honduras; Documents; Oral Arguments

COUR INTERNATIONALDE JUSTICE

MEMOIRES, PLAIDOIRlES ET DOCUMENTS

AFFAIRE DU DIFFEREND FRONTALIER

TERRESTRE, INSULAIRE ET MARITIME

(EL SALVADORIHONDURAS; NICARAGUA (intervenant))

VOLUME VI
DEclaraiion écritedu Nicaraguc~; observations écritesd'El Salvador
- ct du Honduras; documents; procédure oraleWRITTEN STATEMENT OF NICARAGUA

DÉCLARATIONÉCRITEDU NICARAGUA This Writtcn Staterneni of the Republic of Nicaragua is submitted in accor-

dance with the Order of 14September 1940givçnby the President of the Cham-
ber in the case concerning the Land, Island und Muritirne FrottrierDi.~pzpr( rrel
.S~t/vridc)rlHnndu r(~i~aruguainlerveilrng).

Section A. PmceduralHistorp
1. Nicllrüguainitiated this procedure that hüs brought it beïore the Chamber
by originüllyaddressing a letter to the full Court on 20April 1988conveyingthe

viewof thc Govcrnment to the efïect that Nicaragua had an interest of a legal
liature whicli could be affected by a decision of this Chümber. In lhat same
letter, Nicaragua, in reliance on the principle of consciit. reserved its position
generallyIn relation to the Court's Order of X May 1987,that is, the Order that
crcatcd tlie Chamber.
2. Çoiisisteni with the position it had rescrvcd. Nicaragua filedits Application
for permission to intervene on 17 Nuvember 1989,not before the Chamber, but
before the full Court. In its Order or 28 February 1990 the Court found that it
was for the Chümber to decide whether Nicaragua's Applicationfor permission
to iiitcrveiieunder Article 62 of the Statute should be granteci.
3. Nicaragua diily participated in the procedure ordered by the Chamber of
sheCourt and presented its case of intervention in accordance with Article 62 of
the Statute.
4. Oral hearings were hcld hm 5 to 8 lune 1490and, finally, the Chambcr

rendered its Judgment of 13September 1990in which it decided that Nicaragua
was permitted to intcrvene in the case in the manner and within the limits set
out in the Judgmcnt. These limitations imposed on the Nicarüguan intervention
werebased on the unanrmous finding of the Chamber :
"lhat ihe Republic of Nicaragua has shown tliütith<isan inieresi of a legal
iiature which way be affected by part of the Judgmeni ol'ihe Chümber on
tlie merits in the present case, nümelyils decision on the legal régime oftlie
waters of the gulf of Fonseca. but has not sliown sucli an inleresi which
rnay be affeectedby any dccision which the Chamber may be required to

make concerniiig the delimitariotiof those waters,or any dccision as to the
lcgal situation of the maritime spacçsoutside the Gulf. or any decision as to
the legal situation of tlie islands in the Gulf {I C.l R~porrs1990, p. 97,.
para. 105).
This Iimttation imposcd oii the intervention of Nicaragua würrants sonle pre-
liminary cornments.

Section B. Nicaragua's Attitude on Intervention

5. 1iithe case or the Italiati application to iiitervene,the Court decided to iso-
late what ilconsidered to be the -'realissue in the case" and concluded that : "While formallyItaly requests the Court to safcguard its rights, it appears
to the Court that the unavuidablepractical effect of its request is that the
Court will be calIed iipon to reçognize those rights, and hencc, for the pur-
pose of bcingable to do so. to make a fiiiding, at least in part, un disputes
hetween ltaly and oiie or both of the Parties."(1.CJ Hepur!,s19514 ,. 19,
para. 33 Infine.)

6. Judge Schwebel.in his disseiitingopinion. interpreted the Judgment of the
Court in thc Itülian intervention in the followingway.
"Since Itüly seeks permission to intervene in order to defend clriiinsto
certain continental shelf zones io which Malta and Libya lay claim the
Court's Judgmentholds that in reality Italy seeksto assert çlaims and thus

establish rights against the principal Parties."(1 C 1. Reports 1984. p. 139,
para. 18.)
7. It is irue thüt several distingiiished Mcmbers of the Court dissentcd frotn
this interpretaiion of the ~najoritydecisioii, inçliiding Judge Schwebel. Judge
Ago, for exarnple.noted tliat

"Italy was noi seeking to have its righis secognizcd,but solely to have ihe
tact noted that it considered itself to possesssuch rights" (p. 122,para. 13)

8. ThenJudgc Sctte-Camaraindicdtedtliat hedid not seehowtheJudgrncntcal1
identifyin the objectof the Italian applicationa"distinct dispute" (para. 70).
4. For a prospective intervenor in the siiuatiuii of Nicaragua the fact
rcmaiiiedthat, in spite of such proniinent dissidents.thc inajority had a differeiit
view. Tlierefore. Nicaragua tried as carefully as possible to reinain within the
very strict limits imposed in this decisioii.
10. This precaution was explaincd in general by the Nicaraguün Agent in the
opening statement itlthe oral hearings of 5 June 1990(see verbatim record of
the public sitting of the Chamber held on 5 June 19'30at 11 a.nl., pp. 26-27),
Nicaragua explained in the second round of oral pleadings,

"that our application for permission to intervene isnot based oria particu-
lar interpretütinn of Article 62 ihaigiiorcsthe previousdeçisions Quite thc
cuntrary, aiid in spire of our opinion as to the logic or f'airncssof the
precedents, we have been very careful not to igiiorc as irrelevant and much
lcss to purposely fa11iiito thc Icgiiltrips in which the full court foundboth
Malta and ltaly had falleti.
WCIiavebeen al pdins iiikccping o~irapplication witliiii the limits set in
bolh previous decisiotis. In doing tliis we have tried to adjust as inucli as

possible the deîiiiition of the object we seek witlr this intenrention and the
lndicütion of the legal interesls thüt woiild be affecteclby aiiy decision on
tliis case, to those paramctcrs judged permissible in the previous cases.''
(Verbatlmrecord of the public sitting of the Chiiinber held on 8 June 1990
at 2 p.m.,p. 15.)

11. During the oral eüri~igsNicaragua tried to make it as clear as possible
that it was ready to supply the Chamber with any further details.
"ln this regdrd. 1 wuuid wish to anticipate an): posslbility of misundcr-
standing by requesting that the Chamber makc use of Article 49 of thc
Statute and cal! upon the Agent who will be glad tu produce any document

or supply any explanations tliat maybe deemed ncçcssary or useful.
Furthermore, if the Chamber should feel that the applicütion of Nica-
ragua gocs too far or remains too limited, Nicaragua would be willing tothat, of themselves.in other sirnilar situations, haveprovoked the caution of the
courts.

"While the legal position taken up by the Parties in responsç to the
Court's questions regarding its cornpetence under the Arbitration Agree-
ment obligethe Coiirt to leavethe delimitation of the seabed and subsoil
boundary in the Channel Islands region to the discretion of the Parties, it
believesthat certain practical considerations mayalso favour this course. !il
nurroii:wurcvr ruch ns the.~,strcii'nzv~riiirletund rock.<,c,austcrl ~uteshuvc

u certainliber~jin theirclioicer,Sbuse-poit~rs;andtheseltctiun ofAnse-poinfs
for arriving ritumedianiin~in such ~ilalevrvhich isa1onceprut.tlca/ randeyui-
table rapj)eurslo b~ a m~ltterpecuiiarly srritublefor deterrnrnafionhy direcf
t~rgoliat!on~b~t\v~e~ the Purtics." (Decision of the Courr of Arbitration
datcd 30 June 1977betweenthe United Kingdom and France on the delimi-
tation of the contincntai shelf, para. 22 itfine, einphasis added.)

18. The importance of the relation between distance and security in delimita-
tion has been taken into account by the Court in previous dec~sions.In the
Lzhyriillïal~delimitation the Coiirt obscwed :
"ln any event' the delimitation which will result from the appliclttion of
the present ludgment is, as will be seen below>not so ncar to the coast of
cither Party as to make questions of security ii particular considerarion in

thc present case." (I.C.1 Ariporrs1985, p. 13;para.51.)

19. The security interests of a riparian State in waters of this magnitude are

self-evident Even in 1917,wheiithe Central American Court of luslice adopted
the decision on which El Salvador bases itscontentions, and the 3-mile limitwas
in force. the security implications of any action by a riparian were parümount.
The pleadings of the Partics to the case are rife with reference io security
interesis. How cati there be security interests inside the Gulf of only 2 out of
ihe 3 iiparians?
20. The United Kingdom and France made frequent reference "regarditrg
their respective navigationaldefensc and security interests" in the English Chan-
nel, but the Court of Arbitrütion round that

"the weightof such considerdlions iiithis region is, in any evcnt, somewhat
diminished by the very particular charllcter OF the English Channel as a
major roiite of international müritime navigation serving ports outside the
territories of either of the Parties Consequently, tliey cannot be rcgarded
by the Court as exercising a decisiveinfluenceon the delimitation boundary
in tbc present case." (Para. 188.)

21. The reasoning of the Court of Arbitration, contmriosen~u,would be that
in a Gulf with the cvident characteristics of the Gulf of Fonseca,the considera-
tions rcgarding the navigational defençe and security iiiterests of the riparians
can be regardeci"as excrcising a decisiveinfluence on the delimitation".

Alleg~d Hnnihirunrigiirsneciithc NirarcrguutiIslurids oj.F~iruiiones

22. During the oral Iiearings Counsel for Honduras stated that the IWO
delimitation between Nicarligua alid Honduras "riins from the terminal point of
the land boundary . . . to Farallones" (verbatim record of the public sitting of[Il-131 WRI~TEN STATEMENTOF NICARAGUA 7

the Chamber on 7 June 1990, at 10a.in., p. 39). The Nicaraguan Ageni denied
thisfact in the public sittingheld the followingday at 2 p.m. (seepage 19 of the
verbatim record). A simple perusal of the description of Acta (see Annex 1)
shows that the definitive western terminus of the 1900 alignment is not at
Farallones but "üt the ceiitrcof the distance between the northern part of Punta
de Cosigüina and the southcrn part of the island of El Tigre."
23. If this cxchangeat the ordl hearings was an attempt to play on the diffcr-

ent names givento placesin the Gulf of Fonsecaarea, then the Chümber should
be quite clear - as Honduras undoubtedly 1s - that the Punta Cosigüina name
is given ro the wholc miss of land where the Cosigüina volcano is situated and
that the northern part of this area is known by various names: Motley Penny,
Rosario and San José.
24. In order to clarify this multipliclty of names it is enough to mention that
there isan appended description to the Acta 11.signed by the Mixed Boundary
Commission (Annex 11,that clarifies tliat Punta dc Çosigüina 1salso known as
Monypenny Point.
75. The same indication can be sccnin the Judgment of the Central American

Court of Justice of 9 March 1917 :
"The division üdjusted with Nicaragua (and Honduras) is the only one
that still subsists. Thc line of this divisionappears on the maps here pre-
sented as running to a point midulay between the southern part of Tigre
Island and the iiorthern part of Coriguiiiu Poitt~(Mony Penny, or Rosario
Poirii) . . ." (Ernphasisadded: see AJIL. 1917.p. 710.)

26. The contention of Honduras that it has rights ouiside the Gulf trenches

on the righrs of Nicaragua relative t~ her maritime territory. If Honduras has
sovercigntyover parts of the mouth of the Gulf it could only 'hie ai the cost of
Nic;ir;iguü and El Salvador territory. The Honduran mainland is more than
30 niiles distant rrom the mouth of the Gulf. while the distance between
Nicaragua and El Salvador at thc closing of the Gulf is under 20 miles,as the
Chamber has duly noted iiiparagraph 24 of its Judgment quoted above. Today.
almost uiianimouslythe nations of the world accept a 12-milelimit of territorial
waters
27. If the Fionduran claim wereaccepted and - since the position of the
riparians is far [rom clear on this point - the waters of the Gulf are not con-
sidered intcrnal watcrs. then a possible result would be that ü c1;iimof a conti-
nental shelf or some such right (which would presumably commencesomewhere
inside the Gulf for Honduras) would have preference aver the territorial waters

(but, nonetheiess. territory proper) of Nicaragua and El Salvador. This con-
tention wouldhdvethe effectof cutting through Nicaraguan and Salvadoran ter-
ritorial waters through the mouth of thc Gulf: ur of separating the waters and
rights of the sovereignsat the niouth of the Gulf - like Mnses the Red Sea -
in order to allow Honduras rights o~itsidethe Gulf.
28. The above contention is equally applicüble if the waters of the Gulf are
coiisideredinternal waters,There 1sno juridical rcason for consideringthat Hon-
duras has some form of preference tliat extends its sovereigninternal waters
farther than the internal waters of Nicaragua and El Salvador. If the internal
waters of Honduras - in this hypothcsis - were io extend io the pacifiç, then
the Honduran internal watcrs in the Gulf would extend beyond 20 miles while

those of Nicaragua and El Salvador would be Iimited to some forni of seashorc
ar beach of less than 5 miles each. [16-191 WRITTEN STATEMEN'I' OF NICARAGUA 9
l
of Fonseca isrrowa juridicril bay is a clear recognition that rlicrc is no condo-
minium inside the Gulf stnce Lhis"condominium" hüs become a moot question
in viewof the exterit thi~tmoderii lawsallow for territorial wüters.
35. The rights af Nicaragua ta itswaters and shelf inssdcthe Gulf exist ipso
J~ciicroandclbi~irriohy virtue of its sovcrclgnty over the land. So also wi~hthe
rights ol El Salvador that now, according to modern law, 1sa neighbour of
Nicaragua with a conimoii border inthe waters of the Giilf.

36. Paragr~~ph38 infini: of the Judgineiit of 13 Scptember 1980 has an
expression that warrants certain consideration. The Chamber describes Nica-
ragua'sApplicütion for permission to intervene and notes:

"Nicdragua goes on to state thüt it 'inteiids lo subject itself to the bind-
ing erCectof the decision to be givcn'(Applrcation, para. 6). Tlie Chuiuher
tukes fioleof !h(itstorcmatr." (Emphasis added.)
37. It is thc understanding of Nicaragua that as ii non-party in this case, 11

caiinut beaffeçtedby the decisionof the Chambcr on tlie rnerits.As a non-party
Nicaragua 1sunder the protection uf Article 59 of the Statute of Ihe Court and
thc iight ilhas acquired by havingits Application adn~i~tedis fundarnentallythe
riglit to be heard by the Chamber. With respect to Nicaragud, ihe decision to be
sendercd by tlie Chdmber on the inerits wiZl rcinain ws inter ulior uciri.
Niciiragua understdnds that this 1sthe clcar ineaning of pdragraph 102 of the
Judgmei-itof 13 September 1990:

-'theintervcning Shte does not hecome party to the proceedings, and does
not acqiiirethe rights or becomesubjectto the obligatioii~which attach to
the suatus of a party, under tlie Statute and Rules of Court. or the generül
principles of procedural law. Nicaragua. as itninterverter,has of course ;i
right to be heard by the Chamber"

38. What Nicaragua seeks with its intervention 1sfor the Chainbcr to be
dware where the iiltcrcsts of Nicdragua lie in order thüt thcy bc fully respected.
Since both Honduras and El Salvador have objected the Niçaniguan interven-
tion in one way or anotlier, it is çonveniento recallwhat thc Court stated in the
case of the ltalian Application forpermissiorito intcrvciic:
"lf,as Itdly has suggested, the decision of the Couri in the present cüse.

taken witlioiit ltaly'sparticipation, had forthat reason to be more limiied in
scope bctwecnthe Ydriiesthemselves.and subject to mure cüvralsand reser-
vütioiis in Favourof ttiird States, than it nlighl oiherwise have been had
ltdly been present. it is thc interests of Libya and Malta whiçh might be
affectedand iiot thosc of Iialy, Itis material to recallthiit Libya and Malta,
by objecting to the interventson of Itlily, hiive indicdled their own prefer-
ences."(1.C.J Reports IY84. p. 27, para. 43.)

39. It is true thas thls "deference to Itüly'sdaims", as Judge Schwebelçalled
it in his scparate opinion to the decisron on the merits. was criticized among
other thiiigs, because:
"it is had to see how,dt the time Libya and Miilta opposed ltdly'srequest,
they could have known the 'probability'of the restriçted scope of a judg-
melit oii the merits which had yet to bc writlen" (I.C.! Reporis 1985.

p. 176).19 DISPUTE (EL SALVADOR/~.IONDURAS) [19-311

40. Of course, it should not be lost to sight thüt neither Honduras nor El Sal-
vador could claim such ignorance of the foresecable consequences, particularly
in a relativelyrestrictcd selting suas the Giilf of Fonseca.quite differcnt from
the mid-Mediterraneün Sea.
41. The factthat the intervention of Nicarligua- udike the Italian iiitçrven-
tioii- h;zsbeen admitted cannot.change the situation since Nicaragua has oiily
been admitted as a "non-party". The Court cannot adjudge on areas that miglit
"appertüin" to third States - and Nicaragua as a non-party is siich a "third
State" to thcse proceedings. Thcrefore. the decision must be limited to a geo-

graphical arrü in which no such claims existe As the Judginent in the merits
phase of the Llhyu/Malru delimitation case avowed :
"The present decisioii niust, as then foreshadowed, be limited in geo-
graphical scope so as to lcave the claims of Italy unaffected, that is to say
that the dentsionof the Court must be çonfined tu the area ttiurhich,as the

Court has been informed by Italy. that State has no claims to contincnial
shelf rights.(!.CL Rrports 1985,p. 13,püra. 21.)
42. For this purpose Nicaragua considers it necessary toinform the Chümber
of its çlairnso that the dccision of the Chamber bc confined to those are-iisin
which Nicaragua has no daims.

43 Therefore, for the public record, Nicaragua coiisidcrs the situatioi~of thc
Gulf to be asfollows.

Section G. Nicaragua'sAttitude on Delimitation

44. The essentialelernentsin the picture of legrilinterests within the Gulf are
iisfollows:
(a] The absericeof rinyrégime of condonliniurn.
(b) The absence of any régimeof cominunity of interests

(c) The existenceof a delimitatron between Nicarügua and Honduras in accor-
dance with Acta IIof 1900.
(il)The entitlement of Nicaragua to a delimitation in the westernand southern
parts of the Gulf on tlie basis of the pertinent mlcs and principles of
general internatio~iaIw.

2. The DelimirotrnriivrrhHondimr iit1900

45. This delimitation has a detïnitive terminus equidistant from the northern
part of Punta Cosigtiinaand the southern part of the island of El Tigre. This is

the uiiequivocal meaning of thc tcxt of Acta II agreed on 12 lune 1900.The
dcfiniiive character of this delimitation has rernained unchallenged since 1900.
46. The deliniitation of 1909has been recognized by El Salvador. It was flot
the subject of protesi üt the time and its validity hlisnot been challe~igedin the
pleadings presented by Honduras in the preseritcase.
47. The text of the Judgment of the Central American Court of Justice of
1917expressly recognizes the validity of the delimitation of 1900 (Amerrcrril
Joiinlul, 1917, p.711). This delimitation wiis also acceptecias a dn~iri?biy the
Arbitral Award of the King of Spain of 23 December 1996 (Keporrs ofInrernu-121-74] WRETTEN STATEMEhT OF NlCARAGUA Ik

t~oi~ulArbitrurl ii-urd~Vol. Xi, p III) and the case concerning the Aibituril
Aivar~iMcirlchl:rheKing of Spuiil(1CJ Reports IY60,p. 192at p. 202).

48. ln order to complete the picturc and to maintain the shürpness of focus
called foriiconsidering the entitlemcnts of States tn territorial sovereignty,the
Gnveriiincnt of Nicaragua will indiçazethe pritlclpleOF the maritime delimita-
tion which remains 10 be iigreedwithin the GulC
49. In the viewof the Governmeni of Nicaragua the western ~erminusof the
delimitation of 1900 ririth 1-Iondurasis definitive. For this and other reasons,
there is no basis for any furthcr delimitation inrrolvingHonduras in the Gulf
unless Honduras is held to bc cntitled to Meanguera. However,the character of
the alignmeni çlaimed by Nicaragua within the Gulf is not affèctedby the coii-
tingencythat Honduras will bc recognized asentitled to Meanguera.

50. For the purposes of an equitable delimitatton between Nicaragua and El
Salvador andtor Honduras within the GulT,four data are to be accepted:
{a)The eastern terminus is constituted by the terminus of the delimitation uf
1900.
(h) The western terminus is constituted by the median point of the closing line
of the Gulf of Fonseca.

(c) Meanguera is ~robe given fulleffcct but excluçivelyinside the Gulf.
(dj Faralloncsis io be given fullefcct but exclusivelyinside the Gulf.
51. Tüking tliese four data into account an equitable solution is to be agreed
upnn by thc pertinent coastal States in accordance witli tlic rules and principles
of general international law.The geographical circurnstaircesof the area and

thc coastal relationsliipsjustian alignrnent based upon the metliod of equi-
distance.

4.Delrrniici~ioou!siderhe Gu!f

52. In order to complete the picture the Governnient of Nicaragua finds it
necessaryto state that the ülignment indicatedin the previous paragraph would,
in üççordaiice with the principles of genersll international law applicable to
rnnritime Clclimitatirin,çonrlnue icourse beyond ihe clositlglirie of the GUIS
by means of a segment consisting of a perpendicular to the closiiigline of the
Gulf of Fonseca.

PART11.THF SALVADOKAC NONTENTION
THAT THE GULF IS SUBJECT TO ,4CONDOMINIUM

1. The purpose OFthis part of the present pleading is to refute the contention
of the Government of El Salvador that theGulf of Fonsecaissubject to ü regiine
of coiidominiuminaccordancewith theprinciplesof publiciniernational law.

2 The Ca~isequences 01the Dissolii!lon
r$ theCentral Amcricati Federa!ionin 1838

2. The evidenccsupports the conclusioii that in Latin Anierican pracirce the
successionto Spanisli Lilledid not result ina community af rights as between12 DISPUTE (EL S.~L\~ADUH/HONDURAS) [24-271

the successur Siaies. The practiccwa~ no diferent when the Central American
Federation was dissolvcd in 1838. The norinal practice was for the ripariün

States to regillatethe status of ihe gulfs or bays by means of treaties.
3. This conclusion is confirmed hy ~ther basic considerations. 111the firsi
place, there isno gcneriillyaccepted rule of customary law trithe effect that
State successionproduces a condominium si1the case of bays with two or niore
riparians (seeVerzijl,inMklringesHasrlevnnr ,aris, 1960,pp.505-506).Secondly.
the practice of the riparian States of the Gulf of Fonsecadid not indicatc the
exisience of a condominium, with the partial cxception of El Salvador, which
w~ziledfrom 1838 until 1913; a period of sevci~ty-riveyears, before deciding
to assert that a condominium existed. The practice of the riparians will be
exitnineciin due course.

3 Tlie ConsisrenrPosition riJtlteGnvern177~1 tr Nicrirrlgirrr

4. The consistent position of the Gouernmenr nf Nicüraguü throughout the
material period hasbeen that no condominium exists in the Gulf. The evidence
takes thc form of bilateral rreaties,successiveconstitiitioiis. diplornatic notes of
the period 1914to 1917.and diplomaiic notes of the period 1981io 1985. The
evideiiccrelates to a very long period and is remarkably consistent.

5.The Gimez-Ro~iillaTreaty ws concluded oti 7 October 1894by the Gov-

ernnients of Honduras and Nicardgua (1.C.J Rqorr.~ 1960. p. 149). The two
Gvvernments agreed to constiiute a Mixed Boundary Commission in ordcr to
settle differe~icesand ta demarcate the boundary line. The work of this Corn-
mission was rccorded in a seriesof separate agreements of ivhicliActa II, agreed
on 12 June 1900(Annex 11,is relevant fur present purposes. Thc text, in perti-
nent part, reiidsas follows:
''Desdeel piinto coiiocido con el nombre de Amütillo,en la parte inferior
del rio Ncgro, lalinea lirnitrofecs una recia tr=ada en dircccibii akvolciri
Je Casigüina. con rurnbo astronornico Sur, ochenta y seis grados treinta
minutos Oeste (S. 86" 3W O), y distancia aproximada de trcinra y siete
kilometros (37kms) hastii el punlo medio de la bahia dc Fonseca. eq~iidis-

tante de las costas de unay otra Republica, por cste lado; y de este punto.
sigue la divisioide las aguzisde la bahia por una Iinea, taiiîb~entquidis-
tante de las mencionadas costas, hüstü llegar al centra de la distancm que
hayenire la parte septciitrional de la Punta de Cosigüina y la meridional de
1aisla de El Tigre."
This text is translüted in pdragrap26 of the Judgnlcnt of 13September 1940
as follows:

"From the point known as Amatillo, in thc lower reaches of the River
Negro, ~Iicdclimitation is a straight line drawn in the direction of ihr vol-
caiio of Cosigüina. astronomie bcaring south, 86 degrecs, 30 minutes West
(S. 86O30' W.), for a distance of approximately thirty-scven kilometres
(37 km) to the central point of the Bay of Fonsecü, equidislant from the
coiistsof the tivo Republics,on this side; and from that point ~trollowsthe
division of the waters of tlie büyby a line, also equidistant from the said
coasts, to arrive at the centre of the distance between the northern part of

Punta de Cosigüiiiiiand Lhesouthern part of thc isldnd of El Tigre."[27-791 WRlTTEN STA-iEMENT OF NICAKAGUA 13

6. In the same vein. El Salvador and Honduras concluded ü convention
intended to establish defiiiitive maritime boundaries in the Gulf in 1884 (see
below,para. 15)and there 1sno record that the Government of Nicaragua con-
sidcred these intendcd arrangements (they were not ratifiecl)to be incompatible
ivith a status quowhich excluded ü condominiuin.

Cotirrirulions

7. The successive constitutions of the Republic of Nicaragua providc no
evideiiceof the existence of a condominium. The rclcvant instruments are as
follows:

Constitutron of 1858; Article i ; Brifnh uriclForeigiiS~oic Pupers, Vol. 72.
p. 1045(Annen 2)
Constitution of 1893: thid,Vol.86. p.1090(Aiinex 2).
Constitution of 1911 :Article 1: ihiti..Vol. 107,p. 1038(Annex 2).
Conslitution of 1939; Article 3; ibid. Vol. 143.p. 590 (Annex 2).
Constitution of 1548: Article 2: ihtd. Vol. 132,p. 678(Annex 2).

Constitution of 1950;Articlcs 4 and 5 (Aiincx 2).
Constitution of 1987 ;Article 10(Aiincx 2).

8. A central featureof the legal pictiire conceriiing the status of the interna1
waters of the Giilf of Fonseca is the Salvadoran Nole to the Unitcd States in
1913(Annex3). in which for the th time the thcsis$vasadvanced that the three
ripliriati States exercised a joisovcreignty over the Gulf. This initialivof El
Salvador cvoked ü formal contrüdictiun on the part of Nicaragua in ü Note

dated 18 April 1914 addressed to the Covernment of the United States: see
Gobierno de Nicaragua, Ministerio do Relaciones. Met??ori~i1 ,914, pp. IX-X1.
p. 361) (Aiinex4).
9 The nlaterial passages of the Nicaragiian Note of 1914refer to the delirni-
tütion operations of 1900 to 1904 carried out in accordaiicc with the
Girnez-Rotiilla Trenty of 1894, and to Acta II adopted by the Mixcd Uoundary
Comniission in 1900. The Note points out that the delimitation çontradicts the
viewthat therc are areas of the Gulf subject to a condomitiium, or a çornmunity
of intcresls of any type, as hetweenNiciiragua and the other two ripariaii States
10. In a Circular Note. dated 24 Novembcr 1917, Nicaragua explained her
position to the othcr Central Amcrican Governmciits, and in doing su unequi-
vuçally rejectcd the thesis that a condominium existed in the Gulf (.iMeti~c>rii~,
1917,p. 1933: Annex 5). The key passages inthis Note refer to the contcnt of
the Note dated 30 Scptember 1916addressed to El Salvador by ttie Government
of Honduras.

11. In exchangesaf diplomatic Notes with El Salvador in the period 1981 to
1985 tlieGovernmer~tof Nicaragua has coiisistentlymaintaincd iis legal position
according to which iio condominium ex~stsover the waters of the Gulf. More-
over, in the relevant exchanges, the Government of El Salvador omitted io
invokethe concept of çondominium. A typical exchangeof notes may be seen in
Annex 6 (Note NO. 252 frnm El Salvador, datcd 14 Augiist 1981 ; and the
Nicaraguan reply,dateci31August 1981).The legislotionofNicorog~rr ioiiceniin,inaririmczc)iresuilrheitururulresorrrcc.?
if rhe cut~rii~enslltey
12. The legislationof Nicaragua relating tomaritime zones and the exploita-
tion of the natural rcsourçes of the continental shelf consisttEyindicates the

absence of aiiy régimçbascd upon a condominium in relation io the Gulf. The
relevant legislationis as follows:
(u) Constitutional provisions(seeabove, para. 7).
(b) Fishing Decree of 7 October 1925(Annex 7).
(c) Cencral Act.on the Exploitation of Natural Resources(Decree No. 316of
12Müsch 1958 :Guretu No. 316 of 17April 1958)(Annex 7).
(d) Sp~cialAct on the Exploration and Exploitation of Petrokeurn(Decree

No. 372 of 2 December 1858 GucetaNo. 278 of 3 December 1958)(Annex 7).
(e) Special Act on the Exploitation of Fisheries (Deçree No. 577 of 20 Jan-
uary 1961: GuceruNo. 32 of 7 Eebruary 1961)(Annex 7).
(f i ct No. 205 of 19 December 1979rclating to the Continenial Shelf and
the Adjacent Sea (Anncx 7).
13. Given the practical problems which a régimeof condominium would
crcate, the silenceof ihseriesof legtslativerneasureson the subjeciçespecially

significant.

4. The Cnriduc!of El SaIvullorNi ~hePeriod1838 ro IY13

14. El Salvador emerged froni the Central American Federation as an inde-
pendent State in 1838.From the time of iiidependence until 1913the Goucrn-
nient of El Salvador by its consistent conduct recognizedthai no régimeof con-
dominium iippliedto the waters of the GulL In its Noie dated 21October 1913
io the Governrnent of the United States (Atlnex31,El Salvador for the first time
advanced the thesis that the three riparian States in the Gulf exercised a joint
sovereigntyand had done so sincethe dissolution of ihe Central Arnerican Fed-
eration.

15. In the nineteenth century El Salvador coiicluded a bilatcral treaty with
Honduras, the purpose of which was to establish a derinilivemaritime boundary
in thc Gulf, and which resied upon ihe premise that therewas no condominium
in the Gulf.
16. This treaty was known as the Cruz-Letona Treüty and was signed on

10 April 1884 (Honduran Mernorial, Annexes. Vol. 1. Annex 111.1.54).In
Artide 2 the "maritime frontier" within the Gulf receivedprecise definition. 11
was as a result of thc doubts entertained by the Honduran legislaturerelating to
the nature of the delimitation that the insirument failed to be ratified.

Consrirurioris

17.The successiveconstitutions of the Republic of El Salvador since the dis-
solution of the Central Americün Federation make no reference to a régime
hased on condominium relating to the Gulf of Foiiseca.The relevant intrumcnts
are as follows:

Constitution of 1840; Article 1 ; British ntid Fore~giSIate Pupers, Vol. 29,
p. 206; Honduran Mernoritil,Annexes,Vol. 1,Annex 11.3.2.[32-351 WRITTEN STATEMENT OF NICARAGUA 15

Constitution of 1864; Article 3; Honduran Memorial, Annexes, Vol. 1:

Annex 11.3.3.
Constitution of 1871; Article 4; Britisli utid ForeignStare Papers, Vol. 61,
p. 1166;Honduran Memorial, Annexes,Vol. 1.Annex 11.3.4.
Constitution of 1880; Article 2; Bririsli utid ForeignSture Prrl,ers,Vol. 72,
p. 1082;Honduran Memorial, Annexes:Vol. 1,Annex 11.3.6.
Constitution of 1883; Article 4; Bririsli und Foreign Srate Papers, Vol. 75,
p. 884; Honduran Memorial, Annexes,Vol. 1:Annexes 11.3.7.
Constitiition of 1886; Article 3; Bririsliund ForeigtrSrare Puper.~,Vol. 77,
p. 1317 ;Honduran Memorial, Annexes,Vol.1,Annex 11.3.8.
Constitution of 1939; Article 4; Bririsliutid ForeigriStore Prrpers,Vol. 143,
p. 675; Honduran Memorial, Annexes,Vol.1,Annex 11.3.9.
18. None of these provisions makes reference to the existence of acondo-
minium in the Gulf, and in fact no referencewhatsoever is made to the Gulf as

an object of interest. The Political Constitution of 1950,Article 7, does, how-
ever,contain the provision according to which :"The Gulf of Fonseca is an his-
toric bay subject to a special regime" (seeHonduran Memorial, Annexes,Vol. 1,
Annex 11.3.11).
This referenceis equivocal and the special régimemay simply be an elabora-
tion of the phrase "historie bay".

Tlielegi.~/(~riof El Sali~u(lroticertiingtnoririt?ierotlesurrdrlretiafurcrlresolrrces
of /lie coti~inentllrelf
19. Legislation on law of the sea issues is consistent with the constitutional

provisions and thus contains no reference to a réginleof condominium. The
relevant itemsare as follows:
(a) Civil Code, 1860,Article 574(Annex 8).
(h) Law of Navigation and Marine, 23 October 1933,Articles 1, 2 and 13;
UN Legislative Series. L~II~ aJcl Regtriarionson tire Regilrieof the Higlr Seas,
1951,Vol.1.p. 71 (Annex 8).

Tlielegcrlconsequeticesof the conducrof El Sc~lvc~clinrrheperiod 1838 to 1913

20. In the period 1838to 1913the consistent attitude of the Governnient of
El Salvador indicated a lack of claim to the existence of a régime ofcondo-
minium in the ChIf. In the first place the lcgislationof El Salvador herself evi-
dences abstention from such a claim. Secondly, ElSalvador was willingto nego-
tiatc agreementson maritime delimitation with Honduras, the content of which
was clearly incompatible with a régimeof condominium.
21. Twoelements are to be added to this picture.The first is the failure of El
Salvador to protest in face of the delimitation agreement of 1894 between
Nicaragua and Honduras (1.C.J R.eports1960, p. 199),a silencewhichcontinued
during the consequential transactions. These included the exchange of instru-
ments of ratification on 24 December 1896and the work of the Mixed Com-
mission. On 12 June 1900 the Mixed Commission adopted Acta Number II
(Annex II), whichestablished adelimitation withinthe Gulf (seeabove, para. 5).
The second eleinent is the failure of El Salvador to unveil the condominium
thesis until 1913,more tlian seventy yearsafter independcnce.

22. This prolonged silenceon the part of El Salvador cannot fail to havelegal
consequences.Not only did El Salvador fail to place on record its allegedentitle-
ment, but it failed to do so in face of evidence of asubstantially different view
on the matter emanating from the legislation and public transactions of the
other riparians.16 DISPUTE (ELSALVADOK/HONDURAS) [35-371

23. In the submissionof the Government of Nicaragua the position of El Sal-

vador isessentiallythe sanieas that of the United Kingdoin in the Fislieriescase
(I.C.J. Reports 1951, p. 116). In that case the United Kingdoiii had failed to
make a formal protest concerning the Nonvegian practice in respect of baselines
until 1933.Norway was held to have applicd the particular system of delimita-
tion consistentlysince 1869.Whilst the Court in the Fislieriescase did not decide
the issuesexplicitlyon the basis of acquiescence,there can be little question that
the silence of the United Kingdom constituted a critical elenient in the decision:
see the Judgment at pp. 138-139.
24. In any event: by their condiict in the period 1838to 1913, the riparian
States had recognizcd that the status quo in the Gulf did not consist of a con-
dominium. The significance ofcoincident recognitionhas been accepted by the
Court on severaloccasions.Thus, in the Tenlplecase the Court stated that:

"Both Parties, by their coiiduct, recognized thc line and thereby in emect
agreed to regard it as being the frontier line." (1.C.A Reports 1962: p. 6 at
pp. 32-33.)

25. From the time of the dissolution of the Central Aiiierican Federation the
Government of Honduras has consistently maintained the position that the Gulf
of Fonseca wasnot subject to a régime ofcondominium and that the normal
principles ofdelimitation were applicable.

Bilcrteraltrearies

26. In the nineteenth century Honduras negotiated the Cruz-Lctoiia Treaty
with El Salvador. The instruiiient was signed on 10 April 1884 (see above
para. 15). Its provisions were coiicerned with the definition of the "maritime-
boundary" within the Gulf and, although Hoilduras failed to ratify the agree-
ment, the reasons for thiswere unrelated to tlie principle thkitdelimitation of
some kind wascalled for.
27. In the same vein Honduras was willing to enter into delimitation agree-
ments with Nicaragua and in the Ghmez-Bonilla treaty sigiied on 7 October
1894tlie two Governments agreed to constitute a Mixed Boundary Comniission
in order to settle differencesaiid to deniarcate the boundary. The work of this
Comniission concerniiigmaritime delimitation was recorded in the agreement of
12June 1900(Acta II) (see above,para. 5).
28. As the Mernorial of Honduras indicates (French text, p. 677, paras. 74-76)
Conventions concluded with El Salvador in 1874 and 1878 relating to the
smugglinç of aguardiente involved the recognition of the division of the Gulf

into discrete zones of national jurisdiction.

29. The successivcconstitutions of Honduras after independenccconfirm the
Honduran view of the legal régimein the Gulf as one based upon an orthodox
division of maritime areas. The relevant instruments are as follows :

Constitution of 1839; Article 4; Honduran Memorial, Annexes, Vol. 1,
Anncx 11.1.3.
Constitution of 1848; Article 4; British rrridForeignState Pupers,Vol. 36,
p. 1086;Honduran Memorial, Annexes,Vol. 1,Annex 11.1.4. Constitution of 1865; Article 5; Honduran Memorial, Annexes, Vol. 1,

Aiinex II.1.5.
Constitution of 1873; Article 4 ; Honduran Memorial, Annexes, Vol. 1,
Annex II.1.6.
Constitution of 1880 ; Article 5 ; BririslrcirrrlForeigrrStore Pupers, Vol. 71,
p. 906; Honduran Memorial, Annexes,Vol.1,Annex 11.1.7.
Constitution of 1894: Article 5; Honduran Memorial, Annexes, Vol. 1.
Aiinex 11.1.8.
Constitution of 1906; Article 5; Honduran Meinorial, Annexes, Vol. 1:
Aiinex II.1.9.
Constitution of 1924 ; Articlc 5; Bri~islrutrrlForeign SrcirePcrpers,Vol. 120,
p. 590; Hoiiduraii Memorial, Annexes,Vol. 1:Annex 11.1.10.
Constitution of 1936; Articles 4 and 153; Britisli ritld ForeignStute Pupers,
Vol. 140.p. 564; Hotiduraii Memorial, Aniiexes,Vol. 1,Annex 11.1.12.
Constitution of 1950 ; Articles 4 and 153; Honduran Meinorial, Annexes,
Vol. 1,Annex II.1.13.

Constitution of 1957: Article 6; Honduran Memorial, Aiinexcs, Vol. 1,
Annex 11.1.16.
Coiistitiition of 1965; Article 5; Hoiiduran Memorial, Annexes, Vol. 1,
Annex 11.1.17.
Constitution of 1982; Articles9 to 12: Honduran Memorial, Annexes,Vol. 1,
Annex II.1.18.
30. If at any juncture iiithis long history the Government of Honduras had

formed the viewthat a condominium existed iii the Gulf, it is inconceivablethat
tliis significantstatus would not havefeatured in the provisionsof the Constitu-
tions. more particiilarly when itwas tlie custom for sucli provisions to givecrire-
ful definition to the territorial dimensionsof the State.

Diplot~ruticNote of 30 Seprer~~he1r916

31. In response to the proceedingsbrought by El Salvador against Nicaragua
in the Central Amcrican Court of Justice,the Governiiicnt of Honduras dirccted
a protest to El Salvador (Note dated 30 September 1916,Honduran Meiiiorial,
Annexes: Vols. IV and V, Annex X111.2.40).The key passages (in the English
translation) are as follows:
"The Government of Honduras does not iiiteiid to discuss the grounds

on which the Government of Your Excellency relies.in the claiin filed
agaiiist the Government of Nicaragua, in upholding a riglit of condo-
niiiiium over the Gulf of Fonseca, and it is not likely that the Central
AiiiericanCoi~rtof Justice willrule on a point whichaffects the Republicof
Honduras in a judgnieiit in whiclithis Government will iiot haveplayedaiiy
part."
"The purpose of the present note. YourExcellency,is to protest on behalf
and with the express autliorization of ~ilyGovernmeiit, against the alleged
right of condominiiiiii, which Your Exccllency'sGovernment alleges in the
claini filed against the Government of Nicaragua, and to declare. as 1 do
hereby formally declare, that the Governineiit of Honduras has never rec-

ognizedand does not recognizeany state of condominium with El Salvador
or any other republic in the waters of the Gulf of Fonsecabclonging to it.
My Goveriinient furthermorc declares that the line adopted in 1900in the
waters of the Gulf by tlie Honduras-Nicaragua Joint Frontier Commission
as exprcsslyand clearly determining the lines of their maritime boundaries has been valid aiid effectivefrom the moment it \vas established, as is also
the case with the liiiedrawn by this commission as the land boundary, and
at no point sincethis agreementfixingthis line was reached has the Govern-
ment of El Salvador ever raised the slightest objection to the validity of the
said agreement."
"The fact that no boundary linc was drawn between Honduras and El
Salvador does not constitute any joint owiiershipor condominiuni over the
waters of the Gulf of Fonseca."

32. At the same time representations to the same effectweremade to the Cen-
tralAmerican Court of Justice and to the Governinent of the United States
(ForeigtiReluriot~sof tlie UnitedStuten, 1917, pp.834-835; containing a report
of the Honduran President's messageto the National Congress on 1 January
1917; Reply of El Salvador,Annexes,Vol. II, Annex 46: p. 349); and Honduran
Memorial, Annexes,Vols. IVand V,Annex X111.2.42).
33. The contents of the respoiiseof El Salvador to the Honduran Notc are of
considerable iiiterest. In its Note dated 16October 1916 (Honduran Memorial,
Annexes,Vol. 1,Annex X111.2.41)the Government of El Salvador recognizesthe
validity of the deliinitation between Honduras and Nicaragua iii 1900. This
recognition is stated to be "in so Fdras this only affects legal relations between

those two Republics" but it is dificult to see what effect such a proviso could
have.lf a condominiun1was in existencesuch arrangements could haveno valid-
ity at al1unless concluded with the consent of al1the States parties to the con-
dominium. Moreover, the Government of El Salvador makes clear the fact the
this was the first time it had thought fit to make a reservation concerning thc
delimitation of 1900between Honduras and Nicaragua.

Tlie conductof Hoticlurussince 1900

34. Sincethe maritime delimitation of 1900the Government of Honduras has
not questioned the alignment established by Acta II of the Mixed Commission.
Thus (for exaniple)the dclimitation of 1900 wasexpresslyconlirined in tlie Hon-
duran Note to Nicaragua dated 23 March 1982(Aiinex9).
35. Moreover, the division of the Gulf into maritime zones in accordance
with the normal legal principles is assumed in the Honduran lcgislation 011law
of the sea matters. The relevant instruments include the following:

(u) Code of Civil Lawof 1906; Article 621; Honduran Mcmorial, Annexcs,
Vol. 1,Annex 11.2.1.
(O) Decree No. 102of 7 March 1950; Article 153; Honduran Memorial,
Annexes,Vol.1,Annex 11.1.13.
(c) Amendnient of Article 621 of Code of Civil Lawby Decree No. 102of
7 March 1950; Honduran Memorial, Annexes, Vol.1,Annex 11.2.1.
((1) DecreeNo. 25 of 17January 1951concerning the continental shelf; Hon-
duran Memorial, Annexes,Vol. 1:Aiinex 11.2.2.
(e) PoliticalConstitution of 19December 1957;Article 6; Honduran Memo-
rial, Annexes,Vol. 1,Annex 17.1.16.
(f) Constitution of 3 June 1965; Article 5; Honduran Meniorial, Annexes,

Vol. 1,Annex 11.1.17.
(g) Constitution of 11January 1982; Articles II and 12; Honduran Memo-
rial, Annexes,Vol. 1,Annex 11.1.18.
(II) Law Concerning the Exploitation of the Natural Resourcesof the Sea of
13June 1980;La GacetrrNo. 23127,dated 13June 1980; Honduran Mcmorial,
Anncxes.Vol. 1.Annex 17.2.4.142-453, WR~~EN STATEMFNTOF NICARAGUA 19

36. ln the nature of things legislalion pertaining io the territorial sea, and to

other types of right to be found in the Iawof the sea at difïerent periods, would
at least contain some proviso as io the position of Honduras as a CO-sovereign
participating in a réigimcof condominium. No references occur and the only
rrasonable inferenccis that no siich régimewas thought to exist.

37 Prior to the emergeliceof the El Salvüduran claim that ricondominium
existed in 1913, the general and conjoint practice of the riparian States was
based oii the view thai a condominium did not exist. El Salvador has not seen

able to adduce any practice indicating the existence of a cundominiurii and iio
sucli praçtice was adduced in the proceedings heforc tlie Central Ainerican
Couri of Justice.
38. ln fact, the practice urhichcan be adduced provrdes a suhstantial contra-
diction of the condominium thesis. This is especiallytrue of the delimitation of
1884negotiated between El Salvüdor and Hondiiras and the delimitation agree-
iiient betweenHonduras and Nicüragua concluded in 1894and put into effectby
Acta Il of 1900.
39. In the pleüd~ngsin the prescnt case bef'oretlic Chamber, the Governrnent
or El Salvador hds signally failed to produce any practice:indicating the exis-
tence of a condominium. Çhapter 13 of the Memorial. Chapter VI11 of the
Counter-Memorial, and Chapter VI (Section II) of the Reply,a11 of these failto
produce any evidencc. Moreover.for the practice of thc riparian States to be

coherent and viable somejoint administration would haveseen necessary :but no
suchjoint üdininistraiion has existed at any timc.

7 The E,risren(;eofa Coiidoiuiniurn Cunilot Be Presurned

40. The failure of El Salvador to psoducc any substantial cvidenceof the exis-
tence of a condominium is partrcularly impressive in view of the presumptiun
against the existence of a spccial régimedeparting [rom the normal rkgime of
territorial sovereignty.Wliilst this presumptioii cannot be ornan~entedwith cita-

tions, rt woiildseen to arisefrom ordinary legal logic. The régimeis, by defini-
tion and historicilincidciice. exceptional The historiçal examples refer to
land territoryand the presumption against the régimeof condominium is surely
u jorfiori in the case uf maritime tcrritory.
41. The cxcepiional characier of the legal iegirne of the coiidominium is evi-
dent Fromthe treatnienl accorded to it by ivriters.A füirlytyplcal exposition may
be found in the two volumc by Professor Podesta Costa and President Ruda. In
the third edition of theirL3erpchoInteniuciniiul Piiblico (1985) the rclevant pas-
sage 1sas follows :

"CONDOMINIO - . Existecundominio cuando dos o mas Estados ejercen
soberiinia.de modo indivis0 Q concurrente; sobreun mismo terrirorio.
Este regirnen se crea por medio de un tratado, y generalmente es el
resultedo de una transaccion tendieiite a solucionar, a1 menos de modo
transitorio, un Iitigio con respect0 a determinada posesion colonial o ter-
rriorio fronteri~o, Pueden citarse como ejemplos el çaso del archipielago
de Samoa, que estuvo desde 1889 hasta 1894 bajo el condominio de
Alemania, Estados Unidos y Gran Bretana; y el cond~minio de Gran
Bretana y Egipro en el Sudan, existente dcsde 1898 y que rinalizo en
1853. La forma del ejercicio de la sobcrania por los Estüdos condoniinos
depende de las circunstanciüs del casoy se especificaen el trütado rcspcc-
tivo." (Page 82, para. 36.)

"CONDOMINIUM - . A condomiilium exists when two or more States,
pro-ir~clivior conjointly,exercisesovereigntyover the same terntory.
This régimeis created by means of a treaty and it is generally tlie result
of a transaction with the ainl of solving, at least temporarily, a litigation
related to a certain colonial possession oa bordering territory. Tlie follow-
ing cases may be cited as examples: the Archipelagoof Samoa that, during
the period from 1889 to 1899, was under the condoininium of Germany,
United States aiid Great Urirain ; the condominiu~nof Great Britain and
Egypt in Sudan that started in 1898and ended in 1953.
The way sovereignty 1sexercisedby States ina condominium depends on
the circumstancesof thc case and is determined in the respectivctreaty."

42. This passage underlines threc elenlents which increase the potency of the
presumption in question. First; the régimeis established by treaty: secondly,the
regime is noriiially transitional; and, thirdly, the modalities depend on the
circiimstanccsof tlie case.To establish a condoininium on the basis of custom

or practrce. in the absence of a treaty, would be virtually impossible in legai
ternrs.
43. ln seeking to avoid the evident dificulties attaching to the coiidorniilium
ihesis, the pleadings of El Salvador fall back upon some exceptionülly weak
argiiments. Thus the Counter-Mernor~al(paras. 7.22 seq.) asserts that no agrec-
ment is necessürybut only quotes one writer of substantial authority (Accioly)
who does ~iotsupport thc assertion but in fact States: "El condominio sc funda
siempre en un arreglo o rratado. que irnpide los conflictos de j~irisdicçion"
(Counter-Memoriül, para. 7.23).
44. Havingstated that no "forma1agreement" 1snecessary ElSalvador tlien
coiiteiidsthat thereisan "informal agreenien t" (paras.7.74 and 7.29). This posi-
tion involvesSurtherdiflïculties. If theriverean agreement iimatters not at al1
whether itis "formal" or "iiiformal" in ternis of piiblic tnternational law.
45.In fact various transactions involvingal1three ripziriaiisdirectlycontradici
the condominium hypothesis(secthe bilateral irealies referred to above, paras. 5.
15and 26). Mortlover,in its diplornaticNotes to the United States (in 1913) and
to Honduras (in 1916) the Government of El Salvador makesno referenceto the
existence of an informal agreement.

46. On the basis of the evideiice to be found in the three written pleadings
presented by El Salvador in the preseni case before the Chamber, there is no
basis on whiclithe prcsurnpiion against a condominium could be rebutted.

8. Tite RegilnenJ'Cnrihmiit /un? Depends
iipun the Negotiurioilofa!] Agr~enw~lt

47. The Counter-Mernorial of El Salvador, in arguing thai an "informal
agreeinent" or "arrangement" exists.adlnits thaï there is no "formal agreement"

(paras. 7.24 and 7.29). The legal literature providessubstantial authority for the
view that a treaty is a precondition for existence oacondominium. The Memo-
rialof Honduras (pp. 76-77; para. 8) cites Crivaglierand Rulisseau to this effcct
and the work by Professor Podcstü Costa and President Ruda, quotcd above
(para. 41) adopts the same position.[48-501 WRITTEN STATEMENT 0i- NICARAGUA 21

48. The cogency of this view is cnhdnced by the practicül consideration ihar
the modalities of application of a régime ofcondominiuiu would require the
existence of sonlc kind of joint administration. It is dificult IO cnvisage a
workablejoint and bilateral administration in the abscnceof a negutiated agrec-
ment.

49 The praçtice of thc three riparien States of thc Gulf has ülwaysrested on
the assumption that tlic islands witlithe Gulf were the siibjeçtof allocation to
the sovereignty ofthe individual Svates.Whilst tliis datum cannot be conclusive,
it militates against any régimeinvolvinga joint exerciseof sovereignty over the
waters of the Gulf. This is partiçularly the case in the fairly intimate relations of
islaiidsand waters in the Gulf.

50.On the assumpiion thüt the Judgrnent of the Centrül American Cuurt of
Justice of 1917 is binding on both El Salvador and Nicaragua (ivhich is not
admitted by tlic Government of Nicarügua), that judgmenl is in any case not
opposable to Honduras. In consequence; if the régimeof condominium cas
envisagedby the Court) is iiot opposable to Honduras the third riparian State.
ihen, as the Chamber has observed. this "wouldbe Ldntamountto d finding that

there is no condominiuin at all"(1.C.J.Reports 1990%p. 122.para. 73).
51.Tlie Judgmeiit of the Central Ameriçan Court of Justicecoiild iiot bind a
Statc which was not a party to ihe proceedings. The Judgmenr of the Court
çlcarlyshowsthai Honduras was not considered to bc subject to the force OF thc
decision. This ernerges vcry clearly froii~the passage in whicli the Court stiites
that "the rest of the writcrof the Gulf have remained undivided and in a state
of community befween El Salvador and Nicaragua" (English iext, Amerirun
Joliuncil1917, p.711).
The Government of Nicaragua does not accept that a coi~dominiuiiihas
existed ntany time eirh~rin respect of Nicaragua and El Salvador or in respect
or the three riparians. Subject to this, Ihe ludgrnçiit is invok~dto indicate the
viewof the Centrül Americaii Court of Justice.
52 The inopposdbility of the Judgment of 1917 to Honduras must rest pri-
rndrily upun the concept of resjudiccrru.urliiclirtinks as a gencral principlof

law and, on thc basis of judiciai recognitioii, as a principle of gencral interna-
tional law :see,for example,the AdvisoryOpiiiiun on Effect of Awardsof Com-
pemation madc by the United Nations Administrütivc Trihunal (1.C.1 Reports
1954. p 47 al p. 53).
53. ln general the position or the Nicüraguan Govcrnment oii the status of
the Judgmeiit of 1917is as follows.The contempurary reaction of the Govcrn-
ment of Nicaragua took the form of two protest notes addrcssed to the Court
{Annex IO), and a Çircular Note, dated 24 November 1917, to the Central
Arnerican Governments (Annex 5). lii Lheopinion of the Nicaraguan Govern-
ment the Çouri had exccededits legal powers.In any event, inthe submission of
the intervening State, the Judgrnent of 1917has not been irnplcmented and no
legal régime ofthe type refcrred to by tlie Court Ilas everexisted in hct. Consc-
qucntly, there is. strictly speaking. no legal régimcwhich could be opposable
either to Hoilduras or to Nicaragua. DISPUTE (EL SALVADOR/HONDURAS)

II. In Aizÿ Çnse tlieJridgmenf uf'1917 Did Nat Ettv~suge
o Cni~doi~iiiliuin rireSe~t eof PubIi~Internariui~u laiil

54. There isa facet of the dccision of the Central Americün Çaurt whiçh is
ignored in the liierature but is remarkablc nonetheless. The reasoning of the
Court in relation to condorniniun is based on civil lawwdys of thinking and is
significüntly divorced frnrn the doctrine of public international latv. This
approach 1scertainly no matter af surprise. The pmfessional formation of the
judges was that of civillawyersand not that of public international lawyers.
55. As a conseyuence the Court tendcd to confuse difirent concepts and, in
particular, to confuse the concept of an undrvided patrimony with thrit of con-
dominium. Within their world of concepts the civil law conception appeared to
have universality.The absence of delimitaiion resulted in a double confusion.
First, the Court believedthat lack of delimitation resulted inan absencc of un-

divided entitlemenis and ihis is incorrecas a maiter of public intcrn~ztionallaw
(see: for example. the decision of the Court in tlie hlurfSen ContinentalSiielf
cases, 1.CJ. Reports 1969: p.32, para. 46). Secondly, the Court, integrated by
civil lawjurists, assumed that a status quo involvingundivided territory consti-
tuted a condominiuni.

56. The Government of Nicaragua submits thai no régime ofcondominium
has everexisted inthe Gulf of Fonseca. The legalconsiderations supporting ihis
submission cün be summarized thus :

(ri) By their conjoint and consistent conduct until 1913 the three riparian
States recognized that the lcgal rkgime in the Gulf did not coristitute a
condominium.
(b) The legalsiaius quo was evidenccd by the priictice of the riparian States
and, in particular, in their constitutions and athcr pertinent legislation.
(cl The initiativeof El Salvador in 1913 was upposed by 1-Iondiirasand
Nicaragua and, in any case. could not have any legiilconsequences for the
ofher Iwo States. The conduct of El Salvador in ihe period 1838 to 1913
had çreaied a legal condition of things which could tiot be upset by its
eccentricconduct after such a long iime.

(d) The çonsistciit conduct of Honduras since 1838 providesunnequivocal evi-
dence thar Honduras isnot a party 10 any conclominiumand on this basis
no condominium could cxist in law.
(E) The Jiidgment of 191 7 is inopposable io Honduras and consequcntly no
condominium could exist in law.
(f)In anycase the Judgment of 1917 has not been impleiiieiitedand is,in con-
sequence,not thc basis for a legal status quo opposable erriwrto Honduras
or to Nicaragua.

13. The Coilseqirei~ceosfa Decision rhnrflic GuiJ1s Subjcct [cia Cr>nriom~niurn

57. On a more or lessformiil basiç, and pleaded in the alternative, the Gov-
ernment of Nicaragua submits that if the Chamber saw fit to decide thai a
regime of condominium obtains within the Gulf such a decision ivould have

only limitedconsequencesso far as the parties to the proceedingsare concerned,
any such decision could be accompanied by elernents of practical irnplementa-
tion, similar,butnrtircrrinur(~nrlit, the process ofjoint deinarcatioii related to
a decision concerning the alignment of a boundary. Ruit.of course. Nicüragua is[53-571 WRI~TEN STATEMENT OF NICARAGUA 23

not a party to the proceedings and has had no role in relation to the composi-
tion of the Chamber.
58. It must follo\v,in the submission of the Government of Nicaragua, that
no procedure of implementation of a decision(that a condominium exists)could
be binding on Nicaragua. As a matter of general international law the negotia-
tion of an agreement on the modalities of a condominium would involve
Nicaragua onlyas an independentlyconsenting contracting party.

PART111.TI.IEHONDUKAN CONTENTIOT NI.IATTHE GULF
1s SUBJECT TO A R~GIMEBASED UPON A COMMUNITY OF INTERESTS

1. The Memorial of Honduras presents a thesis based upon a comniunity of
intercsts in the followingpassages:

"Clearly, however,Honduras has an equal right, on the same basis as its
two neighbours in the Gulf. to free access to the hSedSalong that mari-
time coastline.
This equality of rights,in point of fact, has its legal basis in the existence
of a relationship of proximity and partial interdependence between the
three riparian States of the Gulf of Fonseca.
The link bctweena (lefucto geographicalsituation and an inter-State rela-

tionship in the context of the rule of law was admirably demonstrated by
the Permanent Court of International Justice in its Judgment concerning
the Territorial Jurisdiction of the International Commission of the River
Oder, and it is characteristic of the existence of acommunity of interests
between the States whose land territory borders on the same natural
resource (riveror lake, but also the interna1waters of a closed bay).
Such a community of interests createsin the first place a strict equality of
right betweenthe riparians of the Gulf of Fonseca with regard both to the
watersof the Gulf and to its outlet to the seas; secondly, italso creates cer-
tain reciprocalduties, for instance,preciselythat not to cause prejudice, by
unilateral conduct, to the rights of others." (Honduran Memorial, Vol. II,
pp. 595-596.)

2. The relevant passageFromthe River Oder Judgmcnt quoted as follows:

"This community of interests in a navigableriver becomes the basis of a
common legal right. the cssential features of which are the perfect equality
of al1riparian States in the user of tlie whole course of the river and tlie
exclusionof any preferential privilegeof any one riparian in relation to the
others." (Case concerning the Terri~oriulJurisdiction of the Intertrutionul
Comtnissior of tlre River Oder; J~idgttientNo. 16, 19PC.I.J. SeriesA.
No. 23, p. 27.)

3. The pertinent itemsamong the Submissionswhich accompany the Memo-
rial arc as follows:
"C. with respect to the maritime dispute:

1. concerning thezone subject to delimitation within the Gulf:
- to adjudge and declare that the community of intercsts existing between
El Salvador and Honduras by reason of their both being coastal States
bordering on an enclosed historic bay produces between them a perfect DISPUTE (El.SALVADOK/~IONDURAS) [57-601

equality of rights, which has neverthelessnever been traiisformed by the

same States into a condominium;
- to adjudge and declare, tlierefore?that each of the two States is entitled
to exerciseits powers within zones to be preciselydelimited betweenEl
Salvador and Honduras ;
- to adjudge and declare that the community of interestsexisting between
El Salvador and Honduras as coastal States bordering on the Gulf
implies an equal right for both to exercise their jurisdiction over niari-
time areas situated beyond the closing line of the Gulf."

4. This tliesisis givenlittle or no further elaboration in the pleadings of Hon-
duras and identical submissionsare appended to the Reply.
5. The community of interests thesis has two outstanding characteristics.The
first is that of novelty.The lawof the sea has alwaysattracted, and continues to
attract. a substantial literature and yet writers haveconsistently failed to invoke
the concept of community of interests in a maritime context. The second char-
acteristic is its lack of definition. The Honduran Government states, and
restates, the formula of the equality of the coastal States without defining the
entitlements wliich flow from this: see the Reply (French text), pp. 682-683
(para. 20). The Replyalso states that "CO-operation"is a duty which flows from
a community of interests and, further, that "CO-operationpresupposes delimita-

tion" (ihid.,p. 684, para. 21).
6. In the submission of the Government of Nicaragua the contentions of
Honduras based upori community of interests lack the minimum of specificity
required of legal claims to which other States have to respond, whetheras par-
ties, or in the role of intervening States by virtue of Article 62 of the Statute.

2. TiteRelewnce of the River Oder Commission Case

7. The Honduran argument relating to the concept of the community of
interests as betweeiithe riparians within the Gulf rests exclusivelyupoii a para-
graph iiithe Judgment of the Permanent Court in the caseconcerning the Terri-
torial Jlrrisrkfiott of //le /nfertrntiorta/Coti~rni~sinf 111eRiver Oder (above,
paras. 1-2).Whilst there is iio doubt that analogy has aii enduring role in aiiy
process of legal reasoning, the use of analogy must rest upoii substantial justifi-
cation rather than a processof mechanical transposition.
8. The River Oder Comniission case was decided in accordance with prin-
ciples of internarional fluvial law but within the precisecontext of the interpre-
tation of particular trcaty provisions, namely, certain Articles of the Treaty of
Versaillesconcerning the concept of waterways "havingan international charac-
ter". It was in the context of the relations of riparian States on a navigable
waterway that the Permanent Court produced its statement of principle. The
relevanceof the principle to the issuesstanding on the actual diplomatic record
concerning the Gulf of Fonsecais diflïcult to discern.Navigabilityis not an out-

standing issue.The Gulf is not an international wraterwaydesignated by 21inulti-
lateral treaty réginielike the European waterwaysaffected by the Treaty of Ver-
sailles.The Governmcnt of Nicaragua is not awarethat rights of passageas such
are in issue in the present proceedings.The legal position of Honduras is, in
simple terms, not analogous'even remotely,to that of an upstream State. In the
çoiitext of the Gulf of Fonseca there is no legal relatioiiship which issiniilar to
that of Polarid and Polish rivers in the River Oder Commission case. It is, con-
sequently, no surprise that the publicists have failed to adopt the aiialogy opti-
misticallyprofïered by Honduras. 3. Tlie ConsistetitPructiceofthe TlrreeRipuricrtrSrutes

9. The application of a coiiccpt of a "community of iiiterests"to .the Gulf of
Fonseca was unheard of until the appearaiice of the Memorial of Hoiiciuras iii
connection with the present proceedinçs. It is a purely forensic device without
any roots in diplomatic or legal reality.Uiitil the preparation of the Memorial
the concept had been ignorcdin the practice of the three riparian States. More

to the point, an extensivepattern of constitutional provisions, legislationon law
of thc sea niatters, and diplomatic activity (see Part II above) providesa positive
contradiction of the application of a special régime within the Gulf, whetherthis
be describedas a condoniiiiium, a conimunity of iiitercsts,or otherwise.Any ref-
erences to a "special régime" whicahre encountered involvethe incontrovertible
fact that the Gulf is an historic bay.

4. TliefIot~d~rruNrrote IOEl Srrli~udoDruted 30 Septeniber1916

10. Of special significaiiccis the Note addressed to El Salvador by the Gov-
ernment of Honduras on 30 September 1916 (seePart II, para. 30, above). In
this Note, it may be recalled, the Governnient of Honduras carefully presented
its reasoiis for rejectingthe claim by El Salvador that a condominiuni existed in
the Gulf. This was a juncture at wliich Honduras miçht reasonably have been

expected to refer to the existence of a conimunity of interests. In fact, the con-
cept fails to appear either in this or in other Honduras Notes. for the simple
reason that no such régime existed.

5. TlreAlleged CotnmlriiityofInrerestsand tlie I'riticiplesofflic Lait:of tlie Seu

II. The Submissions of Honduras link a comiiiunity of iiiterests with the
statement that the riparian States enjoy "a perfect equality of rights". It is not
clear what in practice the consequences of this "perfect equality" are to be,
but in aiiy event it is asserted, also in the Submissioiis,that the conimunity of
iiiterests "implies an equal right" for riparian States "to exercise their juris-
dictions over maritime areas situated beyond the closing line of the Gulf".
12. In so far as equality has any legal meaning, it has to be applied in the
context of a code of some kind relating to a particular subject-niatter. In
thc case of the waters of the Gulf such a code can only dcrive either from the
practice of States or from the principles of general international law relating

to the law of the sea. The "cominuiiity of interests" asserted relates to no State
practice or local custom. Consequently, the principles of the law of the sea are
applicable. Indeed, the Government of Honduras asserts that a community of
interests"impliesdelimitation" and this could only takeplace in accordance with
the relevant lawof the sea priiiciples.
13. On this basis the referenceto "comniunity of interests"ceases to haveany
possibleoperation (assuniing for the sakeof argument that it isa legalentity of
some kirid). The principles and rules of the modern law of the sea are appli-
cable and it is these principles which supply the code for dcciding what is an
equitable solution in the geographical circumstances. Tliereis no room for a
concept of "perfect equality" iinported ub estrrrwithout any legaljustification.

In relation to the contention of El Salvador that a condoniinium exists in
14.
the Gulf, the Government of Nicaragua has had occasion to point out that the26 DISPUTE (EL SALVADOK/HONDURAS) [63-6.51

existenceof a special legal régimecannot be presumed (Part 11,above,paras. 40
to 46). It is obvious that this presumption applies to the so-called "community

of interests", which is an even lessfamiliar featurethan the condominium in the
legal experience. It is iroiiical that the Reply of the Government of Honduras
stresses "the exceptional character of resort to a condominium" (French text,
p. 1056,paras. 38 er seq.),whilst sponsoring a much more eccentricconcept.

15. The Government of Nicaragua submits that no régime of acommunity of
iiiterests has ever existed in respect of the Gulf of Fonseca.The legal considera-
tions supporting this conclusion can be summarized thus:

(u) The issuespreseiitedin the pleadingsof El Salvador and Honduras relate to
the law of the sea, except in so far as they rela10 the question of condo-
minium.
(h) The relevant principles ofmaritime deliniitation cannot be displaced by the
unjustified introduction of a concept of "the perfect equality of States".
(c) The consistent practice of the riparian States has recognizedthe absence of
any speciallegal régime within the Gulf, apart from its havingthe character
of an historic bay.
(d) The contentions of Honduras are designed to produce advantages for Hon-

duras which would not be obtainable by the application of the equitable
principles relatingto maritime deliniitation formingpart of general interna-
tional law.It is not equality but privilege whichis the objective.

Nicaragua reserves its position generally on al1the statements of fact and of
law made by the Parties in their several Pleadings. Nicaragua also reserves its
right to present itscase further in accordance with the Order of the Chamber of
14September 1990,and willintroduce evidence,if necessary,with suficient time
before the hearings on the merits or any other procedure scheduled for the case.

14December 1990,
The Hague.

(Signetl)Carlos ARGÜELLO G.,
Agent of the Republic of Nicaragua. LIST OF ANNEXES '

Annc,~ 1. Documents of Mixed Cominission (Nicaragua-Honduras) thüt
delimited the Gulf in 1900.
An1re.v2 Nicaraguan Constitutions.
Ailtaes3 Salvadoran Note to the United States in 1913.
Attr~rs4 Nicaragua11Note dated 18April 1914addresscd to the Government of
the United States.
Arines 5 Circular Note of Nicaragua düted 24 November 1917üddressed to thc

other Central American Governmcnts.
Annex 6.A typical exchange of Notcs. Note Na 252 from El Salvador, dared
14 August 1981; and LheNicaraguan reply, dated 31 August 1981.
.41nz~x7. The legislation of Nicaragua concerning maritime zoiics dnd the
natural resources of the continental shelf.
Atintii8. Thc legislation of El Salvador concerning maritime zones and the
naturalresoiirces of the contineiital shelf.
Atiner Y.Honduran Note to Nicaragua dated 23 Mardi 1982.
Attne,~IO. Two protest notes addressed to the Central American Court by
Nicaragua in 1917.