INTERNA TIONAL COURT OF JUSTICE
MARITIME DELIMITATION
BETWEEN NICARAGUA AND HONDURAS
IN THE CARIBBEAN SEA
(NICARAGUA v. HONDURAS)
COUNTER-MEMORIAL
OF THE REPUBLIC OF HONDURAS
VOLUME 1
21 MARCH 2002 iii
CONTENTS
LIST OF COLOUR PLATES IN VOLUME 1....................................................vii...
CHAPTER 1: INTRODUCTION ...........................................................!............
......
1. Outline of the Honduran Counter-Memorial ............................................. l
II. Omissions, Confusions and Contradictions in the Memorial of
Nicaragua ........................................................................
........................... 4
A. Nicaragua Ignores the 1906 Arbitral Award of the King of
Spain and the 1960 Judgment of the International Court of
Justice........................................................................
......................... 4
B. Nicaragua Ignores Relevant International Conventions..................... 6
C. Nicaragua's Memorial is Contradictory asto the Issue of
the Applicable Law to be Applied by the International
Court of Justice ........................................................................
.......... 6
D. Nicaragua Misrepresents the Significance ofthe Islands,
Reefs and Banks Situated North of Parallel 15.................................. 7
E. Nicaragua Ignores the Traditional Use by Both States of
Parallel 15 as a Boundary................................................................... 8
F. Nicaragua Makes Selective Use ofHistorical Material,
Particularly in Relation to the Principle of Uti Possidetis
Juris .....................................................................9..
............................
G. Nicaragua's Allegation of Bad Faith By Honduras Is
Misconceived ........................................................................
........... 10
H. Nicaragua's Presentation and Translation of Certain
Material is Inadequate ...................................................................... 11
CHAPTER 2: THE GEOGRAPHICAL CONTEXT OF THE DISPUTE .................... 13
Introduction ........................................................................
............................. 13
1. Geography of the Maritime Areas, Including the Islands and
Fishing Banks ........................................................................
..................
II. The Importance of Delimitation Treaties in the Region .......................... 20
(1) The 1928 Nicaragua!Colombia Treaty............................................. 21
(2) The 1986 Honduras/Colombia Treaty.............................................. 22
(3) The 1993 Colombia!Jamaica Treaty ................................................ 22
Ill. The "Nicaraguan Rise" ........................................................................
.... 24
IV. The Traditional Delimitation Line ofthe 15'hParalle1............................. 25 iv
CHAPTER 3: THE HISTORICAL AND POLITICAL BACKGROUND TO
THE PROCEEDINGS .....................................................................29.
....................
1. lntroduction .................................................................29.....
......................
Il. The History During the Colonial Period and the 19 Cehtury ................. 29
III. The Turtle Fishing Dispute between Nicaragua and the United
Kingdom (1896-1905) ..........................................................33............
.....
IV. 1906-1960 .....................................................................36.
........................
V. The Conduct ofthe Parties between 1960 and 1979................................ 38
VI. Practice Since 1979...........................................................39...........
..........
A. The Legislation of the Parties on Maritime Areas .......................... .41
B. The Policy of Harassment and Incidents Provoked by
Nicaragua ...............................................................47.......
.................
C. The Recent Amplification of the Nicaraguan Maritime
Claims .......................................................... ,................................... 52
VII. Cartographie Evidence ........................................................56..............
.....
CHAPTER 4: THE APPLICABLE LAW .... .,............................................59...........
1. The Applicability of the 1982 UN Convention on the Law of
the Sea.......................................................................59..............................
Il. The Legal Principles Applicable to the Case ........................................... 61
A. The Arguments ofNicaragua ........................................................... 61
B. The Position of Honduras................................................................. 63
Ill. The Place and Role of Equity .................................................................. 64
IV. The Legal Definition and Treatment of Islands ....................................... 67
V. The Nicaraguan Geomorphological Argument.. ...................................... 68
CHAPTER 5: THE UTI POSSIDETIS JURIS .... ......................................71.............
1. The Significance of Uti Possidetis Juris for the Present
Proceedings ..................................................................71....
......................
II. The Application of the Uti Possidetis Juris in the Region
Concemed: the Existence of an Effective Boundary Inherited
from the Colonization ........................................................71..............
......
III. The Fonction of the Uti Possidetis Juris in the Present Case:
Establishment of an Initial Legal Title..................................................... 78
IV. Conclusion ....................................................................86..
....................... v
CHAPTER 6: EFFECTIVITÉS AND THE EXERCISE OF HONDURAN
SOVEREIGNTY AND JURISDICTION OVER THE ISLANDS AND
SURROUNDING WATERS NORTH OF THE 15TH PARALLEL .......................87.....
I. Introduction ..............................................................87........
......................
Il. The Indicia of Honduran Exercise of Sovereignty................................... 89
A. Honduras Exercises Administrative Control Over, and
Applies Honduran Public and Administrative Legislation
and Laws to, the Area.......................................................................
91
B. Honduras Applies and Enforces Its Criminal and Civil
Laws in the Area North ofParallel15 ............................................. 95
(1) Criminal Law........................................................................
.... 96
(2) Civil Law........................................................................
.......... 97
C. Honduras Regulates the Exploration and Exploitation ofOil
and Gas Activities in the Area ......................................................... 98
D. Honduras Regulates Fisheries Activities in the Area..................... 102
E. Honduras Regulates Immigration in the Area................................ 118
F. Honduras Carries Out Military and Naval Patrols in the
Area, As Weil As Search and Rescue Operations .......................... 121
G. Honduras Engages in Public Works and Scientific Surveys
in the Area..........................................................125...........
..............
H. Third Parties Recognise Honduran Sovereignty and
Jurisdiction in the Area .................................................................. 126
I. Honduras Has Consistently Objected To Any Claims by
Nicaragua To the Area North ofParallel 15 .................................. 130
III. Conclusions ..............................................................130.......
....................
CHAPTER 7: THE APPLICA TlON OF THE RELEVANT
CIRCUMSTANCES AND THE COURSE OF THE SINGLE MARITIME
BOUNDARY ........................................................................133............................
1. Introduction .............................................................133........
....................
II. The Circumstances lnvoked by Nicaragua Which Are Irrelevant
or Misconceived ..........................................................134...........
.............
A. The Bathymetrie Feature, the Nicaraguan Rise ............................. 134
B. The Alleged Security Need ............................................................ 134
C. The Argument That "the Bisector" Would Give to
Nicaragua an Equitable Share ofthe Resources of the Area.......... l35
D. The Instability of the Mouth ofthe River Coco ............................. l36 VI
III. The Relevant Circumstances Ignored by Nicaragua .............................. l37
A. The Conduct ofthe Parties ............................................................. l37
(1) Oil and Gas Concessions ........................................................ 138
(2) Fishing Activities ...................................................138.............
(3) Naval and Aerial Patrols......................................................... l39
B. The Presence oflslands ..................................................140.............
C. Boundary and Other Treaties Circumscribing the Relevant
Area ....................................................................l41.
........................
(1) The 1928 Nicaragua!Colombia Treaty ................................... 142
(2) The 1986 Honduras/Colombia Treaty ....................................143
(3) The Colombia/Jamaica Treaty of 1993 .................................. 143
IV. The Line Proposed by Honduras ............................................................ 144
(1) The Territorial Sea Boundary ................................................. 144
(2) The Single Maritime Boundary from the 12-mile Limit of
Territorial Waters to the Point of Junction with the Most
Westerly Point of the Honduran!Colombian 1986 Treaty
Boundary ........................................................................
........
(3) The Junction between the Honduran/Colombian Maritime
Frontier, Ending at Latitude 14°59'08"and Longitude
82°00'00" and the Honduran/Nicaraguan Frontier along
Latitude 14°59.8'00"............................................................... 146
CHAPTER 8: CONCLUSIONS ...........................................................I47..........
....
The Object of the Dispute .....................................................147..............
The Maritime Areas in dispute ..............................................................
The Applicable Law.............................................................148........
.......
The Circumstances Pertinent to the Case............................................... 148
The Method of Delimitation ................................................149...............
SUBMISSIONS ........................................................................
.!51.......................
LIST OF ANNEXES ......................................................................153...................
Volume 2: Annexes .............................................................155........
.......
Volume 3: Maps and Illustrations .......................................................... 171
List of Documents Deposited with the Registry .................................... 173 vii
LIST OF COLOUR PLATES IN VOLUME 1•
Facing Page
Plate 1 Central America and the Caribbean. General Map............................. l2
Plate 2 Cape Gracias a Dios and the Offshore Area. Location Map............... l2
Plate 3 Cays and Reefs of the Area. Admiralty Chart, UK
Hydrographie Office. Section of Chart Number 2425........................ 18
Plate 4 Cays and Reefs of the Area. Detail from Chart Number 2425 ........... 18
Plate 5 Maritime Agreements in the Western Caribbean ............................... 22
Plate 6 The Honduran/Cayman Islands Maritime Boundary in
Relation to Established Honduran Oil Concession Activity ............... 22
Plate 7 Gulf of Honduras circa 1770 (Geographie Chart of the Coast
and GulfofHonduras) ........................................................................
36
Plate 8 Honduran Sovereignty Map in 1886 (Map of A.T. Byme) ................ 36
Plate 9 Effects ofNicaragua's 1904 Claim..................................................... 36
Plate 10 Administrative Region of Gracias a Dios
(Inclusive of Islands and Fisheries Banks) ......................................... 90
Plate Il Honduran Oil Concession Licensing
in the Western Caribbean .................................................................... 98
Plate 12 Nicaraguan Oil Concession Licensing
in the Western Caribbean .................................................................... 98
Plate 13 Composite ofHonduran and Nicaraguan Oil Concession
Licensing in the Western Caribbean ................................................... 98
Plate 14 Honduran Fishing Zones (Inclusive of Roatan and Guanaja) ........... 104
Plate 15 Honduran Naval Patrol Zone (1986-1991) ....................................... 122
Plate 16 Photograph of Savanna Cay and Triangulation Station Dise............ 126
Plate 17 Photograph ofBobel Cay and Triangulation Station Dise................ 126
Plate 18 Photograph of South Cay and Triangulation Station Dise................ 126
Plate 19 Satellite Analysis of Coastal Changes at Cape Gracias a Dios
(1979-2001) .............................................................136........
..............
Plate 20 Honduran Method of Delimitation ................................................... 150
Volume 3 of this Counter-Memorial includes larger scale versions of ali Plates
appearing in Volume 1. CHAPTERl
INTRODUCTION
1.OUTLINE OF THE HONDURAN COUNTER-MEMORIAL
1.1. This Counter-Memorial is filed by the Republic of Honduras
pursuant to the Order of the Court of 21 March 200l, in respect of the
proceedings commenced by Nicaragua by an Application filed with the
Court on 8 December 1999. In that Application, Nicaragua requested that
the Court-
"determine the course of the single maritime boundary between
the areas of territorial sea, continental shelf and exclusive
economie zone appertaining respectively to Nicaragua and
Honduras in the Caribbean Sea, in accordance with equitable
principles and relevant circumstances recognized by general
international law as applicable to such a delimitationof a single
maritime boundary."
1.2. Although Nicaragua chose to commence these proceedings by
unilateral application without attempting to agree upon a compromis with
Honduras, Honduras welcomes the prospect of the Court giving an
authoritative determination of the boundary between the seabed and
maritime spaces appertaining to the two States. Honduras agrees that the
Court should determine the locationof a single maritime boundary and that
it should do so "in accordance with equitable principles and relevant
circumstances recognized by general international law".
1.3. In its Memorial, Nicaragua then proposes that the Court adopt what
it (quite wrongly) describes as "an equitable solution based upon the
bisector method" which is heavily dependent on the significance of a
geomorphological feature which Nicaragua describes as "the Nicaraguan
Rise". This proposed solution is advanced on the basis of a complicated
chain of reasoning which almost wholly disregards the past practice of the
Parties, the existing maritime delimitation treaties between the Stateshe
region, the jurisprudence of the International Court of Justice, and the
relevant rules of international law.
Nicaraguan Memorial ("NM"), p 166. 2
1.4. Honduras invites the Court to adopt an approach which is more
straightforward, which builds upon facts rather than ignoring them and
which produces what is truly an equitable solution. For reasons which will
be developed in this Counter-Memorial, Honduras maintains that there is a
boundary between the maritime spaces of the two States which has its
origins in the principle of uti possidetis juris and which is firmly rooted in
the practice ofboth Honduras and Nicaragua and confirmed by the practice
of third States. That boundary has traditionally been described as running
1
along the 15 h parallel. In fact, as will be explained in Chapter 2, it actually
lies very slightly to the south of the 15 parallel, along the tine 14 degrees,
59.8 minutes, although for the sake of simp1icity, it will be referred to
throughout the Counter-Memorial as the "15 1hparallel" or "parallel 15".
1.5. According1y, Honduras will invite the Court to adjudge and declare
that the single maritime boundary is a straight tine drawn from the 12-mile
limit of the territorial sea of the two Parties along the parallel 14 degrees,
59.8 minutes to the point at which this tine intersects with the 82nd
meridian, where it meets the boundary established between the Honduran
and Colombian maritime spaces by the Colombia-Honduras Treaty of
1986. 2 Between the terminal point of the land boundary and the 12-mile
limit of the territorial sea, Honduras proposes a tine as described in
paragraph 7.41 below.
1.6. Honduras develops its reasoning in support of this boundary tine as
follows. Chapter 2 of this Counter-Memorial describes the geographical
setting of the dispute. Chapter 3 briefly outlines the historical setting.
These chapters explain the significance of the islands, cays, reefs and banks
to the north of the 15 parallel. They will also examine the history of the
area during the colonial period and thereafter.
1.7. Chapter 4 sets out the view of Honduras regarding the law
applicable to the present dispute and the principles in accordance with
which the boundary is to be determined.
1.8. Chapter 5 considers the legacy of the colonial period and the
significance of the principle uti possidetis juris. This Chapter will show,
first, that Nicaragua can make no claim based on uti possidetis to any of the
land, islands or maritime territory north of Cape Gracias a Dios, which
Cape lies just to the south of the 15 h parallel. Secondly, it will show that
any title to those lands, islands and maritime territories which can be
derived from the princip le uti possidetis is vested in Honduras.
2
Honduras Counter-Memorial ("1-ICM'"),vol 2, annex 12; infra paras 8.11-8.13 and
Plate 20. 3
1.9. Chapter 6 consists of a detai1ed description and ana1y1is of the
effectivitésin the islands and waters to the north of the 15 parallel. This
Chapter demonstrates that there is a longstanding practice, almost entirely
ignored by the Nicaraguan Memorial, on the part of both Honduras and
Nicaragua that Honduras exercised ali powers of government and ali
aspects of sovereignty north of the 15 1hparallel and Nicaragua south of that
line. This practice manifested itself in a variety of ways. In particular, it
was Honduras which alone exercised govemmental powers over the islands
1
to the north of the 15 hparaliel an111ver their inhabitants, Honduras which
regulated fisheries north of the 15 paraliel and Honduras which granted oil
and gas concessions north of the 15 1h parallel. By contrast, Nicaragua
111
exercised such powers to the south of the 15 paraliel but only to the south.
The practice analysed in Chapter 6 both confirms the existence of a
boundary along the l5h parallel derived from the principle uti possidetis
juris and provides an independent basis for Honduran title to the north of
that line.
1.1O. Chapter 7 then addresses the application of the law to the facts of
the present case and indicates the relevant circumstances which determine
the course of the boundary. Chapter 8 sets out the conclusions of Honduras
and is followed by the submissions made by Honduras.
1.11. The Counter-Memorial also includes two additional volumes.
Volume 2 comprises documentary annexes, inc1uding correspondence,
legislative and administrative acts, and witness statements. Volume 3
contains a set of plates, including maps and photographs. In addition,
pursuant to Article 50 of the Rules of the Court, Honduras has deposited
with the Registry further documents to which reference is made in the
Counter-Memorial (each of which is numbered and referred to as
"Document [x] deposited with the Registry").
1.12. In setting out its arguments in this way, Honduras has sought to set
before the Court the material relevant to a determination of the issues raised
by the Nicaraguan Application and to address the relevant legal arguments.
Unfortunately, Nicaragua's Memorial has adopted a somewhat different
approach and it is necessary, at the outset, to identif)r certain omissions,
confusions and contradictions in the Nicaraguan argument as set forth in
that Memorial. lt is to that task that the second section of this introductory
chapter is devoted. 4
II. OMISSIONS, CONFUSIONS AND CONTRADICTIONS
IN THE MEMORIAL OF NICARAGUA
1.13. Honduras invites the International Court of Justice to read
Nicaragua's Memorial with the degree of care and attention to detail which
it deserves. With regard to the material which is included, the Memorial is
noteworthy for the significant number of contradictions and
misrepresentations. But the Nicaraguan Memorial is equally noteworthy
for the factual and legal aspects which are not addressed, and for the
material which is omitted. Both the content and the omissions underscore
the fragility ofNicaragua's arguments.
1.14. One of the main, but unstated, objects addressed by Nicaragua's
Memorial is to invite the Court to ignore two matters in particular: the first
concems the legal consequences of the 1906 Arbitral Award and this
Court's 1960 Judgment, and the second relates to the effects for these
proceedings of the numerous maritime delimitation treaties and other
treaties which are relevant to this dispute and which are in force amongst
the various States in the region, including Nicaragua. Moreover,
Nicaragua's approach is contradictory on matters such as applicable law,
ignores geography, ignores its own practice as weil as that of Honduras and
third States, ignores the principle of uti possidetis juris and Honduran
effectivités, and makes inappropriate claims as to bad faith. Finally, its
treatment of sorne of the material is open to question, in terms of
presentation.
A. NICARAGUA IGNORES THE 1906 ARBITRAL A WARD
OF THE KING OF SPAIN AND THE 1960 JUDGMENT
OF THE INTERNATIONAL COURT OF JUSTICE
1.15. It is self-evident that the Arbitral Award of the King of Spain of
1906 and the Judgment of the International Court of Justice of 1960 are of
particular relevance to the present dispute, since both confirmed inter alia
that the final point of the common boundary between the two States was at
Cape Gracias a Dios. Yet Nicaragua's Memorial scarcely addresses these 3
decisions, and when it does so refers selectively to their contents.
Particularly noteworthy omissions include Nicaragua's complete failure to
refer to such matters as:
NM, p 13, para 27; p 21, para 3; p 24, para 9; p 27, paras 18 and 21; p 76, paras 3 to 5. 5
• the respective claims of the Parties, which in 1901 and 1904
led Nicaragua to request a drawing of the land boundary
through a line to the west of meridian 85, and a claim to
certain islands (see Plate 9);
• the law applied in the Award of 1906;
• the legal arguments and the positions adopted by the Parties;
and
• the arguments relied upon by the King of Spain in his
Award.
1.16. Moreover, Nicaragua makes the surprising claim that the King of
Spain chose to ignore the maritime claims in his Award. 4 In fact, a close
reading of the Award indicates that the King of Spain (1) reached the
conclusion he did by reference to express consideration of matters
pertaining to the relevant territorial seas, and (2) referred expressly to the
5
islands situated in the mouth of the Wanks/Coco/Segovia river, and hence
included them within the scope of his Award. Nicaragua's claim to the
Swan Islands was rejected. It is therefore misleading to suggest that
maritime aspects played no role in the 1906 Award.
1.17. Nicaragua's approach appears to be motivated by a desire to
disregard two facts of singular importance. The first is that the boundary
between Honduras and Nicaragua, up to Cape Gracias a Dios, was decided
in application of the principle of uti possidetis juris, applicable equally to
the islands of both States which were adjacent to their respective coasts in
the Caribbean Sea. The second was that the 1906 Arbitral Award of the
King of Spain ("1906 Arbitral Award") was confirmed by the International
Court of Justice in its 1960 Judgment in the Case concerning the Arbitral
Award made by the King of Spain on 23 December 1906 ("1960
Judgment"). The 1960 Judgment is binding, and its subject matter and th6t
ofthe 1906 Award which it endorsed may be treated as resjudicata.
1.18. It follows that, with regard to the present dispute, the Court is
bound to give effect to the following considerations, which Nicaragua seeks
to disregard, namely that:
4 NM, p 27, para21.
NM, p 24, para9.
6 Corfu Channel (Merits), ICJ Reports 1949, p 248. 6
the 1906 Arbitral Award was confirmed by the 1960
Judgment;
both decisions are resjudicata;
• the 1906 Arbitral Award was rendered in application of the
utipossidetis juris of 1821;
• these decisions did not recognise any degree of Nicaraguan
sovereignty north of Cape Gracias a Dios, whether in
relation to territorial, insular or maritime areas, and rejected
ali such claims to that effect; and
the 1906 Arbitral Award held that the islands situated to the
north of the main channel of navigation in the mouth of the
Coco or Segovia river belonged to Honduras and those
situated to the south to Nicaragua.
B. NICARAGUA IGNORES RELEVANT INTERNATIONAL CONVENTIONS
1.19. In its Memorial Nicaragua seeks to ignore the consequences of
numerous international conventions which are relevant to the present
dispute. In so doing it in effect invites the International Court to ignore its
own treaty practice. It also invites the Court to disregard a common
practice in the Caribbean region relating to the use of a method of maritime
delimitation which is based on reference to parallels and meridians,
especially in the American continent. These international conventions are
7
addressed in more detail in Chapter 2 of this Counter-Memorial. For
present purposes, Honduras respectfully submits that international
conventions, like awards and judgments which form res judicata, may not
be disregarded and will need to be taken into consideration and given their
due effect by the Court.
C. NICARAGUA'S MEMORIAL IS CONTRADICTORY
ASTO THE ISSUE OF THE APPLICABLE LAW TO BE APPLIED
BY THE INTERNATIONAL COURT OF JUSTICE
1.20. On the question of the app8icable law Nicaragua's approach is
contradictory and even confused. This aspect is addressed in further detail
in Chapter 4. For present purposes it is sufficient to note, by way of
example, that while Nicaragua, on occasion, expresses the view that the
7
Infra para 2.11 et seq.
8 NM, p 63et seq. 7
equidistance method is not appropriate in this case for achieving an
equitable result:, it nevertheless seeks to rely on a bisector method which it
10
acknowledges as constituting a special manifestation of equidistance.
1.21. A similar lack ofconsistency is evident in Nicaragua's approach to
the rote of the 1982 UN Convention on the Law of the Sea, its occasional
11
efforts to rely upon the 1958 Convention on the Continental Shelf, and its
claim to be entitled to rely on geological and geomorphologie
characteristics of the "Nicaraguan Rise", 12 notwithstanding the absence of
support for that approach in the 1982 UNCLOS and the jurisprudence of
the International Court of Justice. 13
D. NICARAGUA MlSREPRESENTS THE S!GN!FICANCE OF THE ISLANDS,
REEFS AND BANKS S!TUATED NORTH OF PARALLEL 15
1.22. Nicaragua's claim is premised in large part on its unstated
invitation to the International Court of Justice to ignore entirely the islands,
1
reefs and banks which are located north of the 15 parai!el. That approach
is no doubt based on Nicaragua's recognition that those islands, reefs and
banks have been treated by Honduras as being part of its national territory
since the 19 chntury. lt is noteworthy that Nicaragua has provided- and
can provide - no evidence that it has made any claim to these islands and
reefs prior to launching these proceedings in December 1999. Indeed it is
striking that Nicaragua has not put before the Court even a single official
map which shows these islands and reefs as being part of Nicaragua, or any
evidence to show that its national laws have ever applied to these islands,
reefs and banks.
1.23. Nicaragua buttresses its approach by referring to these islands 15
"islets and rocks" 14 and avoiding the use of the word "islands" . These
matters are addressed in more detail in Chapters 4 and 6 of this Counter-
9 NM, p 121, para 82.
10 NM, p 108, para 45, with reference to ProfP Weil.
Il
lrifra Chapter 4.
12 NM, p 131 et seq, para 14 to 21. ln para 17 at p 132, Nicaragua goes to great lengths to
make an irrelevant argument.
13 JrifraChapters 4 and 8.
14
NM, p 138 et seq, paras 31 to 43; p 166 and p 9, para 15 refers to "rocks", ''reefs"and
"cays".
15 Except for NM, p 139, para 32, where reference is made to those existing in the areas
which the NM considers to be under Nicaraguan sovereignty. 8
Memorial. For present purposes Honduras respectfully submits that the
islands, banks and reefs, and their historical treatment as part of Honduran
territory, are relevant factors (if not the most important relevant factor)
which the Court must take into account and cannat be disregarded,
notwithstanding Nicaragua's efforts to the contrary.
E. NICARAGUA IGNORES THE TRADITIONAL USE BY BOTH STATES
OF PARALLEL 15 AS A BOUNDARY
1.24. Nicaragua seeks a delimitation according to a line that starts at the
mouth of the Wanks/Coco/Segovia River and reaches parallel 17, and
16
perhaps even goes beyond. The Memorial alleges17hat this claim is
supported by its practice during the relevant period. Three points may be
made in response.
1.25. First, according to Nicaragua, history began with the coming to
power of the Sandinista Government in 1979: Nicaragua ignores its own
practice, as weil as that of Honduras and third States, over nearly a century
prior to that date. During that entire period it knew or ought to have known
of Honduras' effective control over the area in question but it took no steps
to preserve the position it now belatedly claims.
1.26. Second, if one considers that practice, in the period up to 1979 it is
1
apparent that Nicaragua treated the 15 parallel as the boundary. This is
clear from its practice, for example, in relation to ail and gas concessions,
fisheries activities, and the activities of its own nationals in areas north of
parallel 15 which were duly authorised by Honduras. This practice 1s
described in detail in Chapter 6 of this Counter-Memorial.
1.27. Third, Nicaragua is highly selective in referring toits own practice.
lt ignores, for example, ail and gas concessions granted since the 1960's, as
well as the activities of third States and international organisations which
recognised the limits of Nicaraguan maritime rights as not extending
northwards of parallel 15. Such practice is also addressed in Chapter 6. It
tao confirms that Nicaragua's claim in respect of the delimitation is recent
and is unsupported by any historie practice prior to 1979. Nor is it
supported by consistent practice on the part of Nicaragua (still Jess of
Honduras and other States) since 1979.
16 lt is noteworthy that prior to the Memorial Nicaragua had never previously purported to
17 go beyond parallel.
NM, p 41, para 5; p 49, para 32; p 50, para 35; p 57, para 55. 9
F. NICARAGUA MAKES SELECTIVE USE OF HISTORICAL
MATERIAL, PARTICULARL Y IN RELATION TO THE PRINCIPLE
OF UTI POSS/DETIS JURIS
1.28. Nicaragua's treatment of history - and historie title - is brief and
18
rudimentary, in particular in the period prior to 1963. lt makes limited or
no reference to the origin of the territorial titles of the two States as from
the date of independence from Spain (1821), or to Article 11(3)of the
Gamez-Bonilla Treaty of 7 October 1894, orto the Award of the King of
20 21
Spain of 1906, orto the principle of uti possidetis juris. So that where
reference is made to the implications of Article 5 of the Nicaraguan
22
Constitution of 1950, no reference is made to Article 4 which states in
express terms that "The basis of the national territory is the uti possidetis
juris of 1821". It is apparent that Nicaragua recognises that it would be
hopeless to base its present claim on the principle of uti possidetis. This is
notwithstanding the fact that in application of the principle it was
determined in 1962 that the terminal point of the land boundary should be
the mouth of the Wanks/Coc23Segovia River at 14°59.8' north latitude and
83°8.9' west longitude.
1.29. The rationale for Nicaragua's approach is clear: by failing to
address these and other matters it seeks to persuade the Court that the
critical date, for present purposes, is 1979, when the new Sandinista
Government came to power. Its approach in relation to Honduras may be
contrasted to the approach taken in its Application in the proceedings which
18
NM, pp 21 to 31.
19 "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":
Case concerning the Arbitral Award made by the King of Spain on 23 December 1906,
Judgment of 18 November 1960, JCJ Reports 1960, p 199. See also the affirmation
made by the Court in this respect, Ibid, p 215: "In the judgment of the Court this
complaint is without foundation inasmuch as the decision of the arbitrator is based on
historical and legal considerationsecho hist6rico) in accordance with paragraphs 3
and4 of ArticlJI".
20 See the full text of the "Rapport de la Comisi6n d'examen de la question des limites
entre les Republiques du Honduras et du Nicaragua, soumis à S.M. Alphonse X/li,
arbitre. Le 22juillet 1906", in C./.J., 1960, Mémoires,plaidoiries et documents. Affaire
de la sentence arbitrale rendu par le Roi d'Espagne le 23 décembre 1906 (Honduras c.
Nicaragua), Vol/, Annexe No 11 à la Répliquedu Honduras, p 621 et seq, as weil as the
text ofthe 1906 Award in Ibid, Annexe no 12 au Mémoire du Honduras, p 87 et seq.
21
Except for the inevitable, isolated reference in NM, p 23, para 7.
22 NM, p 28, para 23.
23 See the text of the agreement of the bilateral Mixed Commission in the NM, vol 2,
annex l, p 10. 10
it filed against Colombia on 6 December 2001, in which its claim to title
dates back to the events of 1821 and subsequently. 24 ln these proceedings
Nicaragua relies almost exclusively on matters such as its 25ntinental Shelf
and Adjacent Sea Act of December 19, 1979, and diplomatie
26
correspondence between the two States, ali of which post-date 1979.
Original titles and Honduran effectivitésover the maritime and insular areas
now claimed by Nicaragua cannat, however, be ignored. Honduras submits
that they are relevant factors, if not the most relevant circumstances or
factors, which the Court must take into account and which point decisively
in favour of Honduras' claims and against those of Nicaragua.
G. NICARAGUA'S ALLEGATION OF BAD FAITH BY HONDURAS
ls MISCONCEIVED
1.30. Implicit in the Nicaraguan Memorial is a suggestion that Honduras
has acted in bad faith. It is reflected, for example, in Nicaragua's treatment
of Honduras' approach to the treatment of parallels 15°, 14°59.8' and
14°59'08"N, 27 (on which see Chapter 2 at paragraphs 2.25 et seq) and in
relation to the implications of the Note from the Honduran Minister of
Foreign Affairs of 3 May 1982. 28 Honduras firmly rejects Nicaragua's
allegation. With respect to the starting point for the 1962 delimitation
Honduras has always considered, and continues to consider, that the
demarcation tine is at parallel 14°59.8'. Any claim or suggestion to the
contrary on the part of Honduras that the tine should be drawn at 14°59'08"
arises as a resuit of translation error which occurred in 1963. The 1982
Diplomatie Note is nothing more than a statement of the obvious, namely
that there has not been a formai agreement between the Parties as to the
maritime boundary. That is not inconsistent with the view that such a
boundary is well-established by reference to historie title and the practice of
the relevant States.
24
Application of the Republic ofNicaragua against Colombia, 6 December 2001, at paras
2-3.
25 NM, vol I, p 40, para 4.
26
NM, vol 1, p 39 et seq; see also NM, vol 2, annexes 8 et seq. The other party attributes
this new bilateral political situation, revealing its original characteristics, to merely
political causes such as the disappearanceddy" relationships anUS policy in the
region.
27
NM, p 42, paraIl et seq, and p 77, para 7 et seq.
28
NM, p 44, para 17. Il
H. NICARAGUA'S PRESENTATION AND TRANSLATION
OF CERTAIN MATERIAL IS INADEQUATE
1.31 Not less than fifteen Honduran diplomatie notes in Volume II
(Annexes) of the Memorial of Nicaragua contain typographical errors and
omtsstons. By way of example, Annex 26 not only abounds in
typographical errors but fails to include a paragraph, while Annex 103
omits an important reference to the 1928 ColombiaiNicaragua Treaty. For
the sake of proper translation to English, those dip29matie notes have been
reproduced in Volume 2 of this Counter-Memorial.
29 See HCM, vol 2, annexes 30 and 49. CHAPTER2
THE GEOGRAPHICAL CONTEXT OF THE DISPUTE
INTRODUCTION
2.1. The purpose of this Chapter is to present an overview of the
geographical settingof the dispute before the Court. To that end:
Section 1 describes the geography of the maritime areas in
question, including in particular the islands, fishing banks
and reefs located to the northf the 15 paraIlel.
Section 2 describes the maritime boundary and other treaties
which have been concluded between the States of the region
and which are relevant to the dispute but have been ignored,
or inadequately treated, by Nicaragua in its Memorial.
Section 3 addresse:s Nicaragua's unfounded reliance on the
"Nicaraguan Rise".
Section 4 explains the basis for Honduras' claim that the
boundary between the two countries (traditionally described
as lying at the l51h parallel, a description retained in this
Counter-Memorial for the sake of simplicity) is at paraIlel 14
degrees, 59.8 minutes (14°59.8') and explains why sorne
documents refer to parallel 14 degrees, 59 minutes, 08
seconds (14°59'08").
I. GEOGRAPHY OF THE MARITIME AREAS,
INCLUDING THE ISLANDS AND FISHING BANKS
2.2. The area now claimed by Nicaragua is located in the Caribbean Sea,
off the east coasts of Honduras and Nicaragua (see Plates 1 to 4). The
coastal area in question has often been referred to as the "Mosquito Coast".
As described below and in Chapter 3, the islands and reefs and banks which
are locatedin the area in dispute are known (or should have been known) to
both Parties, since they have featured on admiralty charts since at )east as
far back as the 1830s, and on other maps dating back even further in time.
In 1906 the King of Spain made an arbitral Award which identified the
Wanks/Coco/Segovia river as the boundary between the two States, with a
terminus at Cape Gracias a Dios. On 15 December 1962 a 14
Honduras/Nicaragua Mixed Commission, which was charged with
verifying "the starting point of the natural boundary between the two
countries at the mouth of the Coco River", determined that the starting
point was situated at 14°59.8' north latitude and 83°08.9' west longitude,
Greenwich Meridian.
2.3. Since that time the Parties have accepted that point as being the
precise co-ordinates of the starting point of the natural boundary between
Honduras and Nicaragua at Cape Gracias a Dios. To the north of the 15 111
parallel lie four important islands which are ignored by Nicaragua,
notwithstanding the fact that they also currently sustain, or have sustained,
a human population, and which are of singular importance for these
1
proceedings (see Plates 4 and 10). They are:
(l) Savanna Cay (which is sometimes also referred to by
fishermen as Media Luna Cay and which is identified by a
triangulation marker as Logwood Cay), which is located 8.2
nautical miles north of the l5 h paraliel and sorne 28 nautical
miles to the east northeast of the left bank of the mouth of
the River Wanks/Coco/Segovia and part of the Honduran
Municipality ofVilleda Morales; 2
(2) South Cay (also known as Cayo Sur), located approximately
1
5 nautical miles north of the 15 phrallel, about 41 nautical
miles east of the left bank of the mouth of the River
Wanks/Coco/Segovia and 80 nautical miles to the east
southeast of Caratasca Ridge and part of the Honduran
Municipality of Puerto Lempira. 3
(3) Babel Cay (also known as Cayo Bobel), located
111
approximately 4.76 nautical miles north of the 15 parallel,
27 nautical miles east of the left bank of the mouth of the
River Wanks/Coco/Segovia in the Municipality Villeda
Morales, and 65 nautical miles to the east southeast of
Chapter 6 infra.
2
According to the North American Datum of 1927, the coordinates are: north latitude
15°08'23".153 and west longitude 82°35'02'".209. These were verified by a global
positioning system (GPS) deviee: HCM, vol 2, annex 94. The original Logwood Cay
and Media Luna Cay are both now submerged.
3 According to the North American Datumof 1927, the coordinates are: north latitude
15°04'59".238 and west longitude 82°26'38'".524. These were verified by a global
positioning system (GPS) deviee: HCM, volannex 95. 15
Caratasca Ridge and part of the Honduran Municipality of
Puerto Lempira. 4
(4) Port Royal Cay (Cayo Puerto Royal), which is located
1
approximately 7 nautical miles north of the 15 h parallel and
32 nautical miles east of the left bank of the mouth of the
River Wanks/Coco/Segovia and part of the Honduran
Municipality of Puerto Lempira.
Notwithstanding their traditional nomenclature as "cays", each of these
geographie features is an "island" within the meaning of Article 121 of the
1982 UN Convention on the Law of the Sea. Each is a "naturally formed
area of land", is "surrounded by water" and is "above water at high tide".
In addition, as elaborated in Chapter 6, each sustains or has sustained
human habitation and provides a center for important economie activity, in
particular in relation to fisheries. Consequently, each of these islands is
entitled to its own territorial sea, Exclusive Economie Zone and continental
shelf in accordance with Article 121 and the 1982 UN Convention.
2.4. The area to the north-east of Cape Gracias a Dias also inc1udes a
number of important features which are not islands, in particular fisheries
banks and reefs which have been used by Honduran fishermen and other
nationals duly authorised by Honduras for many decades (see Plate 14).
Particularly important are:
(1) Middle Bank, located sorne 141 nautical miles from the left
bank of the mouth of River Wanks/Coco/Segovia and 74
nautical miles northof parallel 15;
(2) Thunder Knoll Bank, located sorne 126 nautical miles from
the left bank of the mouth of River Wanks/Coco/Segovia and
82 nautical miles north of parallel 15;
(3) Rosalind Bank, located sorne 184 nautical miles from the left
bank of the mouth of River Wanks/Coco/Segovia and 85
nautical miles north of parallel 15; and
(4) Gorda Bank, located sorne 63 nautical miles from the left
bank of the mouth of River Wanks/Coco/Segovia and 34
nautical miles north of parallel 15.
4 According to the North American Datum of 1927. the coordinates are: north latitude
15°04'54".420 and west longitude 82°40'30".922. These were verified by a global
positioning systemPS) deviee: HCM, vol 2, annex 96. 16
2.5. In its Memorial, Nicaragua has asserted that each of these islands
(and presumably the fishing banks and reefs) belong to Nicaragua,
notwithstanding the fact that Honduras has long treated them as being
subject to its sovereignty and has been in effective control of them - and
has exercised sovereignty and administrative, judicial and legislative
5
control over them - throughout modern times. The "islets", "rocks",
"reefs" and "cays" claimed by Nicaragua are stated to include, but not be
limited to: Hall Rock, South Cay, Arrecife Alargado, Bobet Cay, Port
Royal Cay, Porpoise Cay, Savanna Cay, Savanna Reefs, Cayo Media Luna,
Burn Cay, Logwood 6ay, Cock Rock, Arrecifes de la Media Luna, and
Cayo Serranilla.
2.6. lt is noteworthy that the Nicaraguan Memorial uses terms such as
"islets" and "rocks" to describe the islands north of the 15 parallhl that
Nicaragua now seeks to claim as its own. The terminology used by
Nicaragua has evidently been chosen in an attempt to diminish the juridical
significance of these islands (as weil as the banks and reefs), to denude
them of the legal status accorded to the islands under Article 121 of the
1982 UNCLOS, and thus to limit their rote as factors to be taken into
8
account by the Court in achieving an equitable result. Indeed, Nicaragua
boldly states that, for the purposes, of applying the bisector method for
delimitation "[t]he islets and rocks off the mainland coasts have not been
taken into consideration in the present exercise." It is also noteworthy that
sorne of the Honduran islands, banks and reefs Nicaragua now claims are
not shawn or otherwise indicated on any of the maps or figures annexed to
its Memorial. lt is pertinent to ask: why not? Nicaragua provides no
explanation to a claim which appears almost as an afterthought in its
Memorial.
2.7. The approach set forth in the Nicaraguan Memorial, as weil as the
material upon which it relies- and, still more, the material to which it faits
to refer- suggests that Nicaragua has very little, if any, knowledge of the
islands, banks and reefs in question. Nicaragua appears not to appreciate,
for example, that sorne of the islands referred to in Chapter 2 are inhabited,
and that most have been inhabited at one time or another. 10 Nicaragua has
Chapter 6 infra.
6 NM, p 9, para 15 and p 166 (paragraph not numbered).
NM, pp 138-144, para 31 to 43; see also ibid, which refers to ·'rocks", "reefs" and
"cays."
8
Supra para 2.3 and infra para 4.28.
9 NM, p 138, para 31.
10
Supra, para 2.3; see also Chapter 6 infra. 17
not protested about the longstanding application by Honduras of its laws
and regulations to activities on and around11he islands, a practice to which it
makes no reference in its Memorial. Moreover, severa) of the "cays"
mentioned in Nicaragua's Memorial are in fact now one and the same,
although they are known by different names. For example, as stated above
Savanna Cay is also referred to as Media Luna Cay, 12 and Serranilia Cay is
actually a bank. Further, Nicaragua apparently feels able to claim
sovereignty over these islands without feeling the need to provide any
evidence of its legal title over any of them, either by way of historical title
or effective, peaceful contro1. 13
2.8. The islands, banks and reefs which have been claimed by Nicaragua
are not newly discovered: Nicaragua cannot claim it has not previously
known of their existence or of Honduras' exercise of sovereignty over
them. The islands, banks and reefs have been weil known for more than
two centuries, although their names have changed over time. They have
been important in relation to natural resource activities (including turtle
fishing, the harvesting of guano, and fisheries in general) since at )east the
early part ofthe 19 centmy. 14 Nicaraguans now live and work on sorne of
15
the cays claimed by Nicaragua, but duly authorized by Honduras.
2.9. British Admiralty Charts of the Mosquito coast ("River Hueso to
False Cape") show Half Moon Cay and Reefs, Logwood Cay, Savannah
Cay and Reefs, Bobel Cay.,South Cay, Hall Rock and Port Royal Cay (see
Plates 3 and 4). 16 The islands, banks and reefs in question are also to be
17
found on other maps from the eighteenth century on. Further
cartographical information,,including examples ofNicaragua's own official
1
maps which do not extend beyond the 15 parallel"or do not identify sorne
or any of the islands, banks or reefs, is set out in Chapter 3. In light of
these and other maps Nicaragua cannot credibly or reasonably claim to
Il
Chapter 6 infra.
12 Supra, para 2.3.
13
At NM, p 9, para 15 Nicaragua seeks to assert its sovereignty by stating merely that
"[T]hese reefs and cays have:traditionally been used as resting and fishing places by the
Indian Communities in the area, in particular by the Sambo Miskito lndians of the
Miskito coast ofNicaragua.'''
14 See for example concession grantedby the Honduran Govemment in 1888 to Mr. Jacob
Baiz to "[... ] exploit, sell and export guano, phosphate and other fertilizing substances
that exist on the islands, small islands, and Keyse Atlantic belonging to the State",
HCM, vol2, annex 169. It is weil known that Bobet Cay was rich in guano at the time.
15 Chapter 6 infra.
16
The earliest editions ofthese: charts were compiled from a survey from 1803 to 1843.
17
Infra para 3.58 et seq. 18
1
have had no knowledge of the islands, banks and reefs during the 19 h and
early 20 centuries, once it had achieved independence.
2.1O. The area north of the l5 1h parallel and up to the 82ndmeridian has
long been known as a hazard to navigation, for its "outlying dangers", and
was surveyed as such in the mid 19 century. h For example, as early as
1839 a British Sailing Directory and in 1841 a Naval journal described Half
Moon, Allargat Alla and Savanna Reefs, as weil as Bobel Cay with its
"single coconut tree". The journal also identified Logwood and Bum Cays
as small and without vegetation, and Half Moon Cay being composed of
sand. 18 Other historical documents also mention sorne of the cays in
0 19
questiOn.
2.11. Cape Gracias a Dios has been weil known to mapmakers since an
even earlier period, although its exact location on the system of co
0
ordinates was not always agreed upon? hi 1816 the Spanish Governor of
the Province of Honduras informed the President of the Council of the
Indies that his Province, which included the Judicial District of Gracias a
21
Dios, was "situated between 13 and 15 degrees, northern latitude". This
reference retlects a customary practice during the colonial era ofrelying on
parallels to define territories and the territorial limits of the Spanish
18
J Purdy. The Colombian Navigator, London, 1839, p 268 et seq, and R. Owen,
"'Descriptionof the Musquito Coast," The Nautical Magazine and Naval Chronicle,
London, (1841), p 73 et seq deposited with the Registry as documents 2-01 and 2-02.
19 Bernard Neitschmann, Between Land and Water. Seminar Press, New York, (1973), p
118, refers to the fact that in 1917 a representative of the British govemment visited
various Mosquito communities to legalise boundary claims. Ownership documents
were drawn up for sorne of the off shore cays which included a Savanna Cay. The
testimony of a Cayman lslander with regard to the dispute at infra also states that after
1
fishing for turtles around "Old Mahegan", south of the h5parallel N, he"[ ... ] went to
Logwood Cay (uninhabited) [... ] 1 remained at Logwood Cay on Sunday," before
heading back south. See document 2-03 deposited with the Registry.
20
See e.g, HCM, vol 2, annex 1, being the "Description of the Province of Honduras" as
appearing on pages 125 to 128 of the Geografia Hist6rica, Volume IX of America,
adjoining islands, Arctic and Antartic territories, and islands in the Seas of the North
and South, by the Ho/y Father of the Company of Jesus, Pedro Murillo Ve/arde, "in
which is witnessed that the said Province reaches as far as the Gulf of Honduras and
that it adjoins Yucatan". This Annex was presented at the time as Document N.12 in
the "Counter-Case of Honduras", presented before the Honourable Special Border
Limits Court by the representativesof Honduras in the city of Washington on 4 April
1932, in reply to ''TheCase of Guatemala'',p 222 to 225.
21
HCM. vol 2, annex 2, the "Report rendered by Don Juan Antonio de Tarnos, Governor
of the Province oh Honduras, on the visit made to said Province in accordance with the
Provisionsof the Ordenanza of lntendentes, wherein he states, among other things, that
he sent to the Universa/ Department of lndies a map embracing the coast of the said
Province from Trujillo up to the Eng/ish establishment of l'aliz". Document N.19
presented by Honduras in its arbitration with Guatemala, Ibid. p 255 et seq. 19
jurisdictions in America. This reference, and many others, is also
consistent with the view that Cape Gracias a Dios was chosen as a colonial
limit precisely because it coincided with the 15 harallel and with the
22
mouth of a river.
2.12. Moreover, the recognition that Cape Gracias a Dios, where the
Wanks/Coco/Segovia River flows into the Atlantic, constituted the new
limit between the new Republics of Nicaragua and Honduras is
overwhelming and admits of no discussion. It was acknowledged as the
limit by those third States with the greatest interests in the area. lt was
confirmed by the Arbitral! Award of 1906, and in the Rapport de la
23
Commission d'examen whi,;:hfollowed. It is appropriate to recall that the
Rapport underlined that Cape Gracias a Dios was acknowledged as the
limit by inter alia:
• the first Constitutions of Nicaragua and Honduras (1825-
1828 and 1838);
• both States' negotiations with Great Britain, in which the
Govemment of the United States acted as mediator;
• a Nicaraguan Decree of 28 December 1840, regarding
imports and exports at the port of Coco on the river Segovia;
• the Honduran decree of 15 November 1843, authorizing the
Nicaragua delegation to represent the interests of Honduras
in the Mosquito teJTitorybefore the British authorities;
• the diplomatie actions of Francisco Castell6n, the
representative ofNicaragua and Honduras, on 25 September
and 23 November 1844, before the Govemments of London,
Paris, Brussels, Madrid, Prussia, Holland and the United
States in connection with the territory of Mosquitia;
• the manifesto by the President of Nicaragua addressed on 20
March 1848, to the Govemments of America on the 1848
Convention betwe:en Britain and Nicaragua with respect to
the San Juan river:;
22
In another Spanish hydrographical report of 23 November 1742, Pedro de Rivera
Marquez, describing the coastf the Gulf of Honduras, stated: "Between the cape of
Camaron and that of Gracias a Dios, situated 15°8"latitude and 292° longitude, there is
a distanceof 42 leagues: HCM, vol 2, annex 3 containing the Description of the Gulf of
Honduras and its coasts, as far as Gracias a Dias, by Pedro de Rivera Marquez. This
text was presentedas Ooc:ument N.29 in the Counter-Case of Honduras in its 1933
arbitration with Guatemala, Ibid, p 325 to 329.
23
Cf CIJ Mémoires,Plaidoiries et Documents. Affaire de la Sentence Arbitrale rendue le
23 décembre1906 (Honduras c. Nicaragua), Vol!, p 18 et seq and p 687 to 692. 20
• the instructions given to the Minister of Nicaragua before the
Queen of Spain, José de Marcoleta, on 9 July 1850, in
connection with Spain's acknowledgement of the
independence of that country;
• Article Il of the 1856 Convention between Her Britannic
Majesty and the Govemment of Honduras;
• by Article IV of the 1856 Treaty between Her Britannic
Majesty and the United States ofNorth America;
• by Article Il of the 1859 Treaty between Her Britannic
M~est ynd the Republic of Honduras, and by Article I of
the 1860 Treaty between Great Britain and Nicaragua.
In short, until weil into the second half of the !9th century, Nicaragua
always recognized Cape of Gracias a Dios as a common border, and the
subsequent disagreements were definitively resolved with the Arbitral
Award of 1906 and the Court's Judgment of 1960. Nevertheless, and
notwithstanding the factors and evidence described in this Chapter and
Chapters 5 and 6, Nicaragua has chosen tore-open almost two centuries of
settled history.
II. THE IMPORTANCE OF DELIMITATION TREATIE24
IN THE REGION
2.13. Nicaragua's superficial treatment of the islands it now claims is
matched by its strategie decision to ignore (or minimise the importance of)
the numerous international conventions which have been adopted between
the States of the region and which are of relevance to these proceedings
before the International Court of Justice. This approach is adopted by
Nicaragua notwithstanding the Court's confirmation of the significance of
delimitation agreements involving the Parties to the dispute or
neighbouring States. Such conventions are an important factor to be
25
considered in ali maritime delimitations, including this one.
24
Infra paras 4.21-4.27 set out the applicable law, and Chapter 8, paras 8.11 describe the
method of delimitation which Honduras submits is the consequence.
25
See interalia North Sea Continental Shelf Cases, ICJ Reports 1969, the
Guinea/Guinea-Bissau arbitration, lLR Vol 77, p 636, and the Tunisia/Libya case,
Reports 1982. 21
2.14. The maritime boundaries delimited by these treaties may be seen at
Plate 5.26 Three treaties are especially relevant to the present proceedings:
(1) the 1928 Nicaragua/Colombia Treaty;
(2) the 1986 Honduras/Colombia Treaty; and
(3) the 1993 Jamaica/Colombia Treaty of 1993.
Evidently Nicaragua would prefer not to address the implications of these
treaties, since it disputes the validity of the 1986 Colombia/Honduras
Treaty, ignores the 1993 Colombia/Jamaica Treaty, and carefully avoids
mentioning its own 1928 Treaty with Colombia, notwithstanding that
Treaty's considerable rok in intluencing the preparation of the other
27
maritime delimitation treaties in the area.
28
(1) THE 1928 NICARAGUA/COLOMBIA TREATY
2.15. This Treaty was confirmed by an exchange of notes in 1930 and
recognised the 82ndmeridian as the limit for Colombian sovereignty. By
this Treaty Nicaragua also recognised Colombian sovereignty ov29 the
group of islands known as San Andrés and Providencia. For more than
fifty years following its adoption the 82ndmeridian was also regarded by
both Parties as their maritime boundary, and following its adoption
Colombia entered into other regional maritime delimitation treaties
premised upon the 82ndmeridian boundary. It was only in 1979, when the
new Sandinista government came to power in Nicaragua, that Nicaragua
30
challenged the validity ofthe treaty and unilaterally denounced it in 1980.
26 These treaties include the Colombia/Nicaragua Treaty (1928); the Colombia!USA
Treaty (1972); the Colombia/Panama Treaty (1976); the Colombia!Costa Rica Treaty
(1977); the CostaRica/Panama Treaty (1980); the Colombia/Honduras Treaty (1986);
the Colombia!Jamaica Treaty (1993); and the Honduras!UK Treaty (200 1). See also
Plate 6.
27
Chapter 4infra.
28 HCM, vol 2, annex 9.
29
Article 1 of this Treaty recognizes as Colombian the islands, islets and cays to the east
of the 82"dmeridian, which includes among them the banks Quitasueîio, Roncador and
Serrana, although these had been disputed by the United States of America.
Subsequently, by the Vazquez-Saccio Treaty of 8 September 1972, the United States
dropped its claim to the three banks. The Treaty was ratified by the United States in
1981.
30 On 4 February 1980, the Junta de Reconstrucci6n Nacional de Nicaragua issued a
Declaration, published simultaneously with theibro Blanco on the same matter,
trough which Nicaragua denounced this Treaty declaring it null and void. The
Nicaraguan argument was rejected by the Government of Colombia by Notes of 5 22
31
(2) THE 1986 HONDURAS/COLOMBIA TREATY
2.16. In 1986, Honduras and Columbia signed a treaty where the 82nd
meridian was taken as a starting point, and then provides for the line
allocating sovereignty over insular areas to extend eastwards along parallel
14°59'08" up to 79°56'00", at which point it proceeds northwards, and
terminates at 15°58'40" and 79°56'40", thus dividing the Serranilla Bank
between Honduras and Colombia.
2.17. For present purposes the significance of the treaty lies in its
recognition by Colombia that the maritime area to the north of the !5th
parallel forms part of Honduras, and that the 82nd meridian is the
appropriate terminus for the delimitation. By contrast, in its Memorial
Nicaragua contends that the line of delimitation between Nicaragua and
Hondura32"continues up to the area of the seabed occupied by Rosalinda
Bank", a point which lies sorne 90 miles east of the 82ndmeridian. In
making that claim Nicaragua is, in effect, challenging the 1986 Treaty. 33
3
(3) THE 1993 COLOMBIA!JAMAICA TREATY .J
2.18. The Nicaraguan Memorial makes no mention of the 1993 Sanin
Robertson Treaty between Colombia and Jamaica. This is notwithstanding
the fact that Nicaragua's claim is inconsistent with those of its provisions
which respect and confirm the validity of the 1986 Honduran/Colombian
Treaty, and the identification of Serranilla Bank as the western limit of the
new Joint Regime Area, established by the Treaty.
2.19. Nicaragua's decision to ignore these conventions amounts to a tacit
recognition that its claim to the area north of the !5thparallel (including in
particular a bisector line that goes up to the Rosalinda bank) is inconsistent
February 1980, addressed by the Foreign Minister de Colombia: see Libro Blanco de la
Republica de Colombia, p 7, 43 et seq. and p 99 et seq. On 6 December 2001,
Nicaragua instituted proceedings before the International Court against Colombia with
regard to ·'legalissues subsisting" between the two States "concerning title to territory
and maritime delimitation" in the western Caribbean. Nicaragua's Application asserts
that the 1928 Treaty, referred as the Bârcenas-Esguerra Treaty of 24 March 1928
cannot provide a legal basis for Colombian title to the islandsan Andrés and
Providencia and the appurtenant islands and cays, and also over the Roncador, Serrana,
Serranilla and Quitasuefio Cays.
31
HCM, vol 2, annex 12.
32 NM, p 98, para 29.
33
NM, p 60, para 68 et seq.
34
HCM, vol 2, annex Il. 23
with the 1986 and 1993 conventions. It is inconsistent, in particular, with
the identification of meridian 82 as the limit of Colombian and Honduran
sovereignty, and with the two tri-junctions agreed by Honduras, Colombia
and Jamaica (because the tri-junctions are situated south of the
septentrional extreme of the bisector proposed by Nicaragua).
2.20. Honduras submits that these bilateral treaties are relevant for at
least two reasons. First, because the Court is entitled to presume that the
provisions of these treaties- individually and, ali the more so, collectively
- are reasonable. This is an approach taken by the Court in relation to
35 36
maritime and land delimitations, notwithstanding the differences in the
applicable legal regime. 37 Second, these treaties make use of parallels of
latitude and meridians of longitude in drawing the delimitation tine, an
approach whi38 is widely relied upon in the Caribbean region and
elsewhere.
35
See Judgment of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p 94, para 133, C.3 (resolutive
part). Judgment of21 March 1984 in the Case concerning the Continental Shelf (Libyan
Arab Jamahiriya !Malta). Application by !ta/y for permission to intervene, Reports
1984, p 24-27, para 39-43; and Judgmentof 3 June 1985, Merits, ICJ Reports 1985, p
24-26, para 20-21. The Judgment of 14 June 1993 in the Case concerning Maritime
Delimitation in the Area between Green/and and Jan Mayen (Denmark v. Norway), JCJ
Reports 1993, p 68 (para 67) and 82 (para 94) and the Judgment of Il June 1998 in the
Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections,
ICJ Reports 1998, p 324-326, para 116-118.
36 See Judgment of the Chamber of the Court of 22 December 1986 in the Frontier
Dispute(Burkina Faso/Republic of Mali), ICJ Reports 1986, p 578-580, para 48-50.
Judgment of 3 February 1994 in the Territorial Dispute (Libyan Arab
Jamahiriya!Chad), ICJ Reports 1994, p 33-34 (para 63), 38 (para 74) and 40 (para 77,
resolutive part), and the Judgment Il June 1998, in the Land and Maritime Boundary
between Cameroon and Nigeria, Preliminary Objections, JCJ Reports 1998, p 311-313,
para 78-80.
37 See e.g. the arbitral decision of 14 February 1985 in the Case concerning the
Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau. RIAA, vol
XIX, p 194, para 124; and the Judgment of the Chamber of the Court of22 December
1986 in the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, p
578, para 47.
38
The following is in chronological order, a non-exhaustive relation of Treaties partiy or
completely based on this method: Declaration of Santiago of 18 August 1952 and
related Agreements (see United Nations (Oficina de Asuntos Oceânicos y del Derecho
del Mar), El Derecho del Mar. Acuerdos sobre fronteras maritimas (1942-1969),
Nueva York, 1991, p 90-93); Agreement between the Govemment ofColombia and the
Government of Ecuador Relating to the Maritime Boundary between Colombia and
Ecuador (23 August 1975) (English text in Chamey and Alexander (eds), International
Maritime Boundaries, p 809-817); Agreement between Portugal and Spain on the
delimitationofthe Continental Shelf(l2 February 1976) (Boletin Ojicial de las Cortes,
15 June 1976, No. 1512, p 36553-36556) See document 2-04 deposited with the
Registry; Agreement between Kenya and the United Republic of Tanzania on 24
III. THE "NICARAGUAN RISE"
2.21. Nicaragua claims that the maritime areas in dispute "are located in
an area in the Caribbean known as the Nicaraguan Rise", 39 and that the
areas in dispute "consist of the Nicaraguan Rise, together with adjacent
areas of the continental shelf attributable to Nicaragua and Honduras
40
respectively". Reliance on the so-called "Nicaraguan Rise", which is
claimed to be a geomorphological feature and which lies within 200 miles
from the coast, is misconceived for at !east two reasons (which are further
elaborated in Chapter 4). 41
2.22. First, the "Rise" is of dubious geomorphologie authenticity, with a
nomenclature which is largely new.
2.23. Second, even if it could be said to be geomorphologically accurate,
the Nicaraguan reliance on the 'Nicaraguan Rise' is unfounded as a matter
of law. The Court has stated that, since the acceptance of the "distance
principle" in the 1982 UNCLOS, geological or geomorphological features
Jess than 200 miles from the coast have ceased to have any relevance in
42
either verifying title or de1imitation. Nicaragua appears to be weil aware
of the Court's Judgment. It says, however, that Nicaragua's argument
differs from the situation addressed by the International Court in the
Delimitation of the Maritime Boundary between the Two States (9 July 1976) (in
Charney and Alexander (eds), supra, 875-883); Treaty on the Delimitation of Marine
and Submarine Areas and Associated Matters between the Republic of Panama and the
Republic of Colombia (20 November 1976) (ibid, 519-35); Treaty on Delimitation of
Marine and Submarine Areas and Maritime Cooperation between the Republic of
Colombia and the Republic of Costa Rica (17 March 1977) (ibid, 463-76); Treaty on
delimitation between the Government of the French Republic (Martinica y Guadalupe)
and the Government of the Republic of Venezuela (17 July 1980) (Naciones Unidas,
Acuerdos sobre fronteras mar[timas (1970-1984), Nueva York, 1988, p 130-132);
Treaty of Peace and Friendship (Argentina and Chile) (29 November 1984) (34 /LM
(1985), p 11-14) See document 2-05 deposited with the Registry; Treaty on maritime
delimitation between Colombia and Honduras (2 August 1986) (HCM, vol 2, annex
12); Agreement between the Government of Great Britain and Northern lreland and the
Government of the Republic of Ireland concerning delimitation of zones of the
Continental Shelf between the two States (7 November 1988) (Naciones Unidas,
Acuerdos sobre fronteras maritimas (1985-1991), Nueva York, 1992, p 6-13.);
Agreement between the United States of America and the Union of Soviet Socialist
Republics on the maritime boundary (1 June 1990) (39 /LM (1990), p 942) See
document 2-06 deposited with the Registry; Maritime Delimitation Treaty between
Jamaica and the Republic of Colombia (12 November 1993) (HCM, vol 2, annex Il).
39
NM, p 3, para 8.
40 NM, p 161, para 2.
41
lrifra., para 4.33 et seq.
42
JCJ Reports 1985, p 35, para 39. 25
Malta/Libya case, because "the Nicaraguan Rise is one single feature
shared by Nicaragua and Honduras, which is characterised by the absence
of any natural dividing lines", and that the boundary proposed by
Nicaragua "respects the unitary character of the Nicaraguan Rise, by
dividing the43ise in approximately equal haIves between Nicaragua and
Honduras." As elaborated below in Chapter 7, this argument is entirely
without merit: if Nicaragua relies on the unitary character of the feature it
invokes the geophysical characteristics of the feature as a criterion for
delimitation, precisely what the Court said was not to be done. 44
2.24. Moreover, Honduras has consistently objected to Nicaragua's claim
(which was only articulated for the first time in the 1990s) that there exists
a "Nicaraguan Rise". In the early l990s Nicaragua introduced into its
official map a new inset which included the "Nicaraguan Rise"
("Promontorio Nicaragüense"), including various Honduran banks and cays
located north of the 15 parallel. Honduras formally objected to the new
45 46
inset in 1994, and again in 1995. The substance of Honduras'
objections was not countered by Nicaragua then, nor have they been
countered by Nicaragua in its Memorial.
IV. THE TRADITIONAL DELIMITATION LINE
OF THE 15™ PARALLEL
2.25. Finally with regard to geographical aspects, Honduras wishes to
clarify its position conceming the location of the traditional boundary
between Honduras and Nicaragua, a matter upon which Nicaragua makes a
47
wholly unfounded allegation of bad faith on the part ofHonduras. For the
reasons set out in this Counter-Memorial, Honduras submits that the correct
location of the traditional boundary starts at the point identified by the
Honduras/Nicaragua Mixed Commission and then proceeds along a line
111
lying just to the south of the 15 parallel, at 14°59.8' north latitude. As
will be demonstrated in the following chapters of this Counter-Memorial,
43
NM, p 132, paras 17 and 21.
44 See infra Chapter 7, para 7.4.
45
Diplomatie Note of7 April 1994, N.124-DSM: HCM, vo12, annex 51.
46
Note N.226-SAM-95 of 11 July 1995, affirming that the area concemed is part of the
territory of Honduras: HCM, vol 2, annex 54. Amongst other matters addressed in the
1995 Diplomatie Note, reference was made to Executive Decree No 68923 January
1930, approving the map of the Honduran geographer Dr. Jesus Aguilar Paz, that
includes within the Honduran territory ali the islands, banks and reefs lying just north
of the 15th parallel, without having any protest on the part of Nicaragua.
47
NM, p 42, para 11 et seq; and p 77, para 7 et seq. 26
that line reflects the application of the relevant principles and rules of
international law and longstanding practice. The exact location of the tine
in question, however, requires further comment.
2.26. Prior to 1962, when the Honduras/Nicaragua Mixed Commission
verified its location, Cape Gracias a Dios, which had always been taken as
1
the point of reference for the boundary, was believed to lie on the 15 h
parallel itself. lt was not, however, until the Honduras/Nicaragua Mixed
Commission was charged with verifying the point at which the land
boundary terminated that the exact co-ordinates of the Cape became
known. The Honduras/Nicaragua Mixed Commission had, of course, been
established following the 1960 Judgment of the International Court of
Justice. lts mandate was set in accordance with the Basis of Arrangement
accepted by the two Govemments, in March 1961. Among the powers
granted to the Mixed Commission was "to verify the starting point of the
natural boundary between the two countries at the mouth of the Coco
River". The Mixed Commission reached agreement on 15 December 1962,
at its twelfth meeting, and the verification resulted in a point situated at
14°59.8' north latitude and 83°08.9' west longitude, Greenwich Meridian.
That point is also referred to in the original Spanish version of the Report
ofthe Inter-American Peace Committee ofthe OAS of 16July 1963, which
endorsed the 1962 Report ofthe Mixed Commission.
2.27. The English translation of the Report, however, described the north
latitude co-ordinate of the point as 14 degrees 59'08", rather than 14
degrees, 59.8 minutes. This appears to have been the result of an error in
translation. It was this tine of latitude used in the English translation which
was, in practice, followed in relation t48the grant of oit and gas concessions
by both Honduras and Nicaragua, and which informed Honduras'
references in sorne of its diplomatie correspondence with Nicaragua. 49
48 See HCM, vol2, annexes 116 and 117.
49
See HCM, vol 2, annexes 38, 51, 53, 54, 55,56 and 59. 27
2.28. lt was also the line of latitude taken by the negotiators of the 1986
Honduras/Colombia Treaty. The result is a small misalignment between,
for example, the line agreed with Colombia in the 1986 treaty (14 degrees
59'08") and the line of the traditional frontier with Nicaragua (14 degrees
59.8'00"). However, Honduras does not seek to change or challenge the
delimitation tine agreed with Colombia. This line was agreed between the
two Parties, acting in good faith, and, unlike the boundary with Nicaragua,
there was no long history of conduct by both Parties evidencing their
common acceptance of a particular line. But, as regards Nicaragua, the
Honduran claim is that the traditional boundary lies at latitude 14 degrees
59.8'00". CHAPTER3
THE HISTORICAL AND POLITICAL BACKGROUND
TO THE PROCEEDINGS
I. INTRODUCTION
3.1. It has a1ready been demonstrated in Chapter 1 of this Counter
Memoria1that the account of the historical and geographical context of the
proceedings in the Nicaraguan Memorial is wholly unsatisfactory. The
purpose of the present Chapter is to set the record straight by analysing the
relevant historical, political and geographical material. A detailed study
the effectivités,however, is reserved to Chapter 6.
3.2. The material in this Chapter is organized as follows:-
Section II considers the history during the colonial period
and the nineteenth century;
Section III examines the significance of the turtle fishing
dispute between Nicaragua and the United Kingdom during
the nineteenth and early twentieth centuries;
Section IV discusses the period 1906-1960 (from the date of
the Arbitral Award of the King of Spain to the decision of
this Court upholding that award);
Section V comments on the practice of the Parties during the
period 1960-1979;
Section VI considers practice since 1979;
Section Vll addresses the cartographical evidence.
II. THE HISTORY DURING THE COLONIAL PERIOD
AND THE 19THCENTURY
3.3. During the Spanish colonial period the administrative boundary
between the Provinces of Honduras and Nicaragua followed the line of the
River Segovia (also known as the Coco or Wanks) to its mouth at Cape 30
Gracias a Dios. 1 This boundary divided the areas of jurisdiction of ali the
authorities, civil and military. While the division of responsibility was
obviously most important in relation to the main land mass (the islands
being either uninhabited or very sparsely populated at that time and the
extent of the territorial sea limited), it was also relevant to maritime
jurisdiction, since the two provinces had separate authorities responsible for
naval defence and such matters as policing maritime commerce and the
fight against pirates and corsairs. In effect, the location of the land
boundary also determined the division of maritime competence, with the
Province of Honduras exercising authority over the islands and waters to
the north of Cape Gracias a Dios, while the Province of Nicaragua
exercised authority to the south.
3.4. In accordance with the principle of uti possidetis juris (which is
considered in greater detail in Chapter 5 of this Counter-Memorial), the
boundary between the two colonial Provinces became the border between
the independent States of Honduras and Nicaragua following independence
and the dissolution of the Central American Federation. In accordance with
this principle, Cape Gracias a Dios continued to be recognised throughout
the nineteenth century as the terminal point of the land boundary between
the two Republics.
3.5. Although the exact coordinates given for Cape Gracias a Dios in the
maps and other documents of the early !9th century did not always
coïncide, ali the known references located it at or around the !5thparallel.
There is no evidence that the exact location of the border posed any
problems for the two Republics during the early years after independence.
Ali the evidence, however, shows that they continued to treat Cape Gracias
a Dios as marking the border between their respective territories and
between their authority over the adjacent islands and maritime areas. Much
of that evidence was provid2d by Nicaragua herself in the proceedings
before the Court in 1960.
Chapter 5 infra.
Cf C/J 1960, Mémoires, Plaidoiries et Documents, Affaire de la Sentence Arbitrale
rendue par le Roi d'Espagne le 23 décembre 1906 (Honduras c. Nicaragua), vol 1,
Annexes au Contre-Mémoire du Nicaragua nos. 52 ("Titre Royal du 23 août 1745
nommant Alonso de Heredia Gouverneur et Commandant General de la province de
Nicaragua et Commandant General des Armées depuis le Cap de Gracias a Dias
jusqu'a la rivière Chagres"), 53 ("Brevet Royal du 23 août 1745 nommant le Colonel
Juan de Vera Gouverneur et Commandant General de la province du Honduras et
Commandant General des Armées de ladite province du Honduras et de celles
comprises depuis 1'endroit où prend jin la juridiction du Gouverneur et Capitaine
General de la province de Yucatan jusqu 'au Cap de Gracias a Dias'), 54
("Instructions Royales du 23 août 1745 au Colonel Juan de Vera'), 55 (''Avis donné
par le Conseil d'Etat d'Espagne le 21 décembre1906 au sujet de la Sentence arbitrale 31
3.6. For example, a Note dated 23 November 1844 from the Minister
representing bath Honduras and Nicaragua to Her British Majesty
recognized the sovereign right ofNicaragua along the Atlantic coast "from
Cape Gracias a Dias in the North to the dividing 1ine which separates it
3
from Costa Rica". Similarly, in the "New Instructions given by arder of
the sovereign States of Honduras and Nicaragua to Mr. Joséde Marco/eta,
Minister Chargé d'Affaires before4the Government of the Republic of
France and others of Europe" of 14 October 1848, the Governments of
Honduras and Nicaragua refer to the English presence in what is described
as the Honduran territory of"Cape Gracias a Dias".
3.7. The legal literature on territorial conflicts m the region5
demonstrates that it was not until the period 1870-1875 that disputes
emerged between Honduras and Nicaragua regarding the location of the
border and that they were not restricted to Cape Gracias a Dias but
extended to other sectors of the common border. On 7 October 1894
Honduras and Nicaragua concluded a Treaty ("the Gamez-Bonilla Treaty"),
Articles 1and II of which read as follows:
"Article 1. The Governments of Honduras and Nicaragua shall
appoint representatives who, duly authorized, shall organize a
Mixed Boundary Commission, whose duty it shall be to settlein a
friendly manner ali pending doubts and differences, and to
demarcate on the spot the dividing line which is to constitute the
boundary between the two Republics.
Article II. The Mixed Commission, composed of an equal number
of members appointed by bath parties, shall meet at one of the
border towns which offers the greater conveniences for study, and
shall there begin its work, adhering to the following rules:
qui devait prononcer S.M. le Roi d'Espagne sur la question des limites entre le
Nicaragua et le Honduras"), et 57 (A "Instructions du 3 janvier 1747 au Maréchal
Francisco Cagigalde la Vega, Capitaine General du Guatemala, décidantque Don
Alonso de Heredia et Don Juan de Vera seraient placéssous ses ordres et lui seraient
subordonnés", et B '"BrevetRoyal du 3janvier 1747 surbordonnant le Colone/ Juan de
Vera au MaréchalFrancisco Cagigal de la Vega, Capitaine Généraldu Guatemala"),
p 379-432.
HCM, vol 2, annex 5.
4
HCM, vol 2, annex 6.
See Antonio R. Vallejo, Historia documentada de los limites entre la Repub/ica de
Honduras y las de Nicaragua, El Salvador y Guatemala, T. 1, New York, 1938, p 101
et seq, Document 3-01 deposited with the Registry; G. lreland, Boundaries, Possessions
and Conflicts in Central and North America and the Caribbean, Cambridge,
Massachussets, Harvard Universityess, 1941, p 130 et seq. 32
[000]
3. It is to be understood that each Republic is owner of the
territory which at the date of independence constituted,
respective/y, the provinces of Honduras and Nicaragua." 6
The explicit recognition of the principle of uti possidetis juris in this treaty
is relevant to the present case, because once it has been made clear that the
dividing line between the legitimate claims of the two States vis-à-vis one
another was located at Cape Gracias a Dios, it followed that Nicaragua
could have no claim to the adjacent islands and maritime spaces to the
north of the Cape, while Honduras could have no such claim over those to
the south.
3.8. That conclusion is confirmed by the Rapport de la Commission
d'examen:
"Le 15 novembre 1843, le Gouvernement du Honduras a édictéun
décret, autorisant la légation du Nicaragua à représenter le
Honduras, et à soutenir et faire respecter les droits découlant dudit
traité,conformément aux instructions, dans l'article 6 duquel il est
dit que le ministre doit déclarer que tout le territoire Mosquito et
ses îles adjacentes appartiennent à 1'Amérique centrale, et par
conséquent au Honduras et au Nicaragua (Réplique du7Honduras,
page 140) conformémentà leur lignefrontière."
It was clear that Honduras and Nicaragua considered their claims to the
adjacent islands and maritime spaces as following the line of the land
frontier between them.
6 ICJ Reports 1960, p 199, emphasis added.
Supra note 2, Annexes à la République du Honduras, No Il, p 689 (emphasis added).
English translation:'On 15 November 1843, the Government of Honduras issued a
decree authorizing the Legation of Nicaragua to represent Honduras, and to maintain
and compel respect for the rights derived from the said treaty,ordance with the
instructions, Article 6 of which states that the Minister must declare that ali the
Mosquito territory and ifs adjacent islands belong to Central America and consequently
to Honduras and to Nicaragua (Reply of Honduras page 140) in accordance with their
borderline. "(Unofficial translation, emphasis added). 33
III. THE TURTLE FISHING DISPUTE BETWEEN NICARAGUA
AND THE UNITED KINGDOM (1896-1905) 8
3.9. Also of relevance in this context is the dispute between Great
Britain and Nicaragua relating to turtle fishing around the islands and cays
off the Mosquito coast. A number of species of turtles migrate northwards
up the coasts of Nicaragua and Honduras. These species have been
identified in Nicaragua's Mosquito Cays, in the cays and islands north of
parallel 15, and in the B1y Islands of Roatan and Guanaja. Beginning in
the first half of the 19 h century fishermen from the Cayman Islands made
annual expeditions to the turtle grounds off the Mosquito9coast, including
the waters now claimed by Honduras and Nicaragua.
3.10. In 1896 Nicaragua began levying a duty on turtle fishing on the
basis of an 1869 ordinance. 10 This led to a dispute with the United
Kingdom asto the extent ofNicaragua's right to levy such a duty. In 1899
the Govemment of the United Kingdom, on behalf of the Cayman
Islanders, requested a turtle fishing lease, but this was rejected by
Nicaragua on the grounds that it would constitute a monopoly, which
would be unconstitutional according to Nicaraguan law. By a decree
adopted in 1903 the Nicaraguan Govemment imposed various conditions
on the turtle fisheries which would, in effect, have put an end to turtle
fishing by Cayman islanders. These conditions were challenged by the
11
United Kingdom. While negotiations were underway to modifYthe more
oppressive conditions of the Decree, in 1904 the dispute took a more
difficult tum, following the seizure by Nicaragua of severa! Cayman
12
schooners and their crews. During this time the United Kingdom
8
Documents regarding this dispute have been obtained from the Public Record Office,
London, and are deposited with the Registry.
9
There is a surfeit of both historical and contemporary literature on the traditional
fishing rights of Caymanian fishermen in the Western Caribbean. e.g. Thomas Young,
Narrative etc., Smith Eider & Co., London, writing at Cabo Gracias a Dios (1839),
states:'TheCape is often visited by small schooners from the Grand Cayman Islands to
fish for turtles [... ]". "The Sailing Directions for the West Indies" London, (1883), p
293 states:The range ofcays and reefs between the Mosquito and VivorillaCays. [... ]
This neighbourhood however, is weil known to the Cayman Fishermen who visit the
cays in the turtling season. [... ]"
10 The Ordinance stated that, 'The vessels that may arrive at the isles and cays of the
jurisdictional district to turtle fish [... ]" were to pay a levy. The decree, however, did
not specify the extent the said "jurisdictional district". See infra note 16.
Il See Document 3-02 deposited with the Registry. This is a memorandum of the British
Foreign Office of June 1905.
12 The Nicaraguan govemment maintained that the schooners were seized within
Nicaraguan territorial waters whilst Cayman islanders maintained that the seizures were
illegal. Ibid. 34
obtained evidence to support a claim that the Cayman Islanders had
historical rights to engage in turtle fishing activities in the waters around
13
the cays adjacent to the coast ofNicaragua. Historical research conducted
by the Govemor in Jamaica regarding the sovereignty of the islands in
question in that dispute, resulted in the Govemor being convinced that the
Cayman Islanders possessed equal rights with the Mosquito Indians, and
that Nicaragua derived her claim, if any, from the Indians and therefore
could have no greater rights than those possessed by the Cayman
Islanders. 14
3.11. Throughout the negotiations between Nicaragua and Great Britain,
and during the research carried out as a result of the negotiations, the
Nicaraguan govemment made no claims regarding any islands north of the
15 111parallel and which it now claims. 15 Furthermore, the Nicaraguan
decrees on the subject which were adopted at the time did not identify or
demarcate any of the cays and islands now claimed by Nicaragua. 16
Indeed, in 1904 the Nicaraguan govemment promised to provide an "exact
list of ali cays and islands over which jurisdiction was claimed" but failed
to do so. 17
13 In relation to this incident and to provide evidence of the long standing and
uninterrupted useofthese islands and cays by Caymanian fishermen, the Commissioner
of the Cayman Islands collected the testimonies of 6 of the oldest Caymanian
fisherrnen. who asserted that there were no marks of Nicaraguan sovereignty over the
cays around the 14 parallel, i.e. Sucra Cay (Oid Mahegan), let atone any cay north of
1
the 15hparallel. Ibid.
14 Ibid.
15
Pending negotiations, in 1904 the Nicaraguan Govemment appears to have negotiated a
concession for fisheries toMr. Gross and his Atlantic Coast Fisheries Co, who offered
this to the Cayman Islanders in 1906. Decree dated 17 January, 1906 approved the
contract between the Govemment and Gross, giving him a concession regarding fishing
"on the Atlantic coast and adjacent islands." See document 3-03 deposited with the
Registry. A letter of May 9. 1904 sets out the cays and is1ands over which the
concession was said to operate. The only cay northof the 15hparallel to be included is
False Cape Cay which is not being claimed by the Nicaraguan govemment in this case.
See document 3-04 deposited with the Registry.
16
The decrees refer to fishing in the "waters of the republic," in "Nicaraguan territorial
waters," "the turtle fisheries of the Caribbean Sea belonging to Nicaragua," " on the
Atlantic Coast and adjacent islands" or those "within 3 nautical miles of Nicaraguan
territorial waters and the cays, islands ornd": see document 3-03 deposited with the
Registry.
17
The British Foreign Office was convinced at that time that the Nicaraguan govemment
would be unable to provide such a list as the Nicaraguan authorities had no reliable
chart or information of the area and 'navigation of that coast was perforrned by the
Caribs (natives of the coast of Honduras) and Cayman Islanders". Other
correspondence of the Foreign Office from 1908 to 1912 also suggests that the
difficulties with arriving at an understanding stemmed from the Nicaraguan ignorance
of the local conditions. According to the Foreign Office it was evident that the 35
3.12. In 1905 Nicaragua and Great Britain agreed to establish a Mixed
Commission with the task of determining which cays were subject to
Nicaragua's jurisdiction. The instructions issued to the Mixed Commission
by the two Govemments were based on the premise that the claim by
Nicaragua extended only to the cays in and around the Miskitos Cays and
Morrison Cays, ali of which are south of the l5 parallel. 18 The Report of
the Commission, published in April 1905, identified Il cays and banks
constituting the group known as the Mosquito Cays and Morrison Cays
over which Nicaragua had jurisdiction, and provided references to the
latitudinal and longitudinal position of each cay and bank. None of the
cays or banks claimed by Nicaragua in its Memorial in the present
proceedings was claimed by it in its submissions to the Mixed Commission.
The Commission did not identity any of them as being under Nicaragua's
jurisdiction. Indeed1 the Report of the Commission does not identity any
cay north of the 15 parallel as being under the jurisdiction of Nicaragua;
the northemmost Nicaraguan island mentioned is Edinburgh Cay, at
19
14°48' N latitude. Following publication of the Report the Nicaraguan
Minister of Foreign Affairs supported its conclusions. He stated that the
question of territorial waters would have to be settled in the light of the
Report drawn up by the Mixed Commission, and after a careful
20
examination of the rights it conferred. This support for the finding of the
Commission was reiterated in 1912. Subsequent negotiations between the
govemments led to the adoption of a bilateral treaty in 1916, to address
turtle fishing rights of the Cayman Islanders. The treaty referred to "turtle
fishing in the territorial waters of Nicaragua" and "waters and cays in the
21
jurisdiction ofNicaragua", but did not purport to extend- and was not in
practice applied- to turtle fishing north of parallel 15. This treaty formed
the basis for turtle fishing by the Cayman Islanders in Nicaragua until the
1960s, when the Nicaraguan government decided not to renew the
islanders' fishing privileges.
concemed minister in Nicaragua "[... ] is obsessed with the idea that from the coast of
the mainland as far as the outermost cay there exists a chain of islets the territorial
waters of which overlap each other. For this alone could warrant their contention that
from the mainland to the outermost cay should be regarded as ali Nicaraguan waters,
since they have never claimed a right to more than three miles of territorial jurisdiction
around any island over which they exercise or maybe held to exerciseignty." See
document 3-05 deposited with the Registry.
18
The Governor of Jamaica was opposed to the setting up of the Commission as he was of
the opinion that it would give the Nicaraguans knowledge which they did not possess.
Supra note Il.
19 Document 3-06 deposited with the Registry.
20 Document 3-07 deposited with the Registry.
21
"Treaty for the Regulation of Turtle Fishing Industry in the Territorial Waters of
Nicaragua as Regards Fishing Vessels belonging to the Cayman lslanders", 1917. 36
3.13. The position as at 1905 is therefore clear: despite a clear and formai
opportunity to do so, Nicaragua did not claim- and was not deterrnined by
the Mixed Commission as being entitled to claim- jurisdiction over any of
the islands, reefs, cays and banks north of parallel 15 which it has c1aimed
for the first time in its Memorial of April 2000. The position articulated by
Nicaragua in 1905 continued to apply through the 1960s and right up to
1979, when the Sandinista Government came to power in Nicaragua.
IV. 1906-1960
3.14. On 23 December 1906, the King of Spain rendered his Arbitral
Award, the dispositive part ofwhich reads as follows:
"1 do hereby declare that the dividing line between the Republics
of Honduras and Nicaragua from the Atlantic to the Portillo de
Teotecacinte where the Joint Commission of Boundaries
abandoned it in 1901, owing to their inability to arrive at an
understanding as to its continuation at their subsequent meetings,
is now fixed in the following manner:
The extreme common boundary point of the coast of the Atlantic
will be the mouth of the River Coco, Segovia or Wanks, where it
flows out in the sea close to Cape Gracias a Dios, taking as the
mouth of the river that of its principal arrn between Hara and the
Island of San Pio where said Cape is situated, leaving to Honduras
the islets and shoals existing within said principal arrn before
reaching the harbour bar, and retaining for Nicaragua the southern
shore ofthe said principal arrn with the said Island of San Pio, and
also the bay and town of Cape Gracias a Dios and the arrn of
estuary called Gracias which flows to Gracias a Dios Bay,
between the mainland and said Island of San Pfo." 22
The Award thus recognized the existence of a border between the two
countries by virtue of the criterion established in Article 11.3of the Gamez
Bonilla Treaty of 1894, that is to say, in accordance with the pure principle
of the uti possidetis juris. This Award fixed the exact position of Cape
Gracias a Dios (the traditiona1 limit between the provinces of Honduras and
Nicaragua in the Spanish colonial period) in the mouth of the Wanks/Coco/
Segovia River.
22 JCJ Reports 1960, p 202 (emphasis added). 37
3.15. On 16 November 1928, on the occasion ofthe signature ofthe 1928
Treaty between Nicaragua and Colombia, the Minister of Foreign Affairs of
Honduras addressed diplomatie Notes to the Ministers of Foreign Affairs of
Nicaragua and of Colombia. In the first Note, Honduras referred to the
1906 Arbitral Award made by the King of Spain and to Cape Gracias a
Dias, whereas in the second Note, Honduras was vindicating its sovereign
23
rights on the cays Quitasuefio and Roncador. In these Notes, Honduras
stated the following: first, that it considered as applicable the reference of
the 1906 Award to Cape Gracias a Dias and to the exact limit there
established as a borderline; second, that the islands and adjacent cays
situated to the north of this line were implicitly considered as Honduran,
and not only with regard to her neighbour to the south, Nicaragua, but also
in relation to other non-Central American countries of the area.
3.16. ln its Judgment of 1960, the Court decided "that the Award made
by the King of Spain on 23 December 1906 is valid and binding and that
Nicaragua is under an obligation to give effect to it." 24In relation to this
case, itis necessary to emphasize that the Court stated that:
"In the judgment of the Court, Nicaragua, by express declaration
and by conduct, recognized the Award as valid and it is no longer
open to Nicaragua to go back upon that recognition and to
challenge the validity of the Award. Nicaragua's failure to raise
any question with regard to the validity of the Award for severa!
years after the full terms of the Award had become known to it
further confirms the conclusion at which the Court has arrived.
The attitude of the Nicaraguan authorities during that period was
in conformity with Article VII of the Gamez-Bonilla Treaty which
provided that the arbitral decision whatever it might be- and this,
in the view of the Court, includes the decision of the King of
Spain as arbitrator - 'shall be held as a perfect, binding and
perpetuai Treaty between the High Contracting Parties, and shall
not be subject to appeal'." 25
3.17. The Court in 1960 thus upheld the position adopted in the Award of
1906. What is more striking for the purposes of the present case is that,
while Nicaragua at times during the period 1906-1960 sought (ultimately
without success) to contest the land boundary determined in 1906, at no
stage did it assert a claim to the islands or maritime spaces to the north of
1
the 15 harallel, or reserve its right to make such a claim in the future. Nor
23 HCM, vol 2, annexes 15 and 16.
24
ICJ Reports 1960, p 217.
25 Ibid, p 213-214. 38
did it challenge the many assertions of sovereignty (which are detailed in
Chapter 6, below) by Honduras north of the 15 paraliel.
V. THE CONDUCT OF THE PARTIES
BETWEEN 1960 AND 1979
3.18. The same pattern persisted throughout the period between the
Court's decision in 1960 and the change of government in Nicaragua in
1979. Throughout this period Honduras continuously exercise1 sovereign
authority over the islands and waters north of the 15 paralhel. It did so
openly and without protest from Nicaragua. That practice is detai1ed in
Chapter 6, below. It took such forms as the grant of oil and gas
concessions, the regulation of fisheries and the exercise of criminal and
civil jurisdiction.
3.19. For example, by Note No. 686 of 11 April 1972, the Minister of
Foreign Affairs of Honduras informed the Ambassador of Nicaragua to
Tegucigalpa that:
"[ ... ] the Ministry of Natural Resources of my country has
decided to impose a closed season on the fishing of shrimp from
the tenth of April this year to the next tenth of May in the area of
the jurisdictional sea between the mouth of the Patuca river and
Cape Gracias a Dios, with the aim of preserving the conservation
and propagation of the marine fauna of the country. In order to
insure compliance with this measure, a Surveillance Committee
has been appointed to patrol the area in question for the purposes
ofpreventing the infringement of the aforementioned prohibition.
To this effect, 1allow myselfto request through Your Excellency
the valuable cooperation of the Nicaraguan authorities in
transmitting this resolution to the fishing vessels of your country
26
which operate near to the area in question" .
26
HCM, vol 2, annex 17. The text in Spanish reads as follows: "'[...] el Ministerio de
Recursos Naturales demi pais ha tenido a bien fijar veda para la pesca del camar6n del
diez de abri! en curso diez de mayo pr6ximo en la region del mar jurisdiccional que
se halla comprendida entre la desembocadura del rio Patuca y el Cabo de Gracias a
Dios, con el objeto de prcservar la conservaci6n y propagaci6n de la fauna marina del
pais. Para el cumplimiento de tai medida se ha nombrado un Comité Vigilancia que
realizarâ las actividades de patrullajezona vedada a efecto de evitar que se infrinja
la prohibici6n expresada. En tai virtud, por el alto intermedio de Vuestra Excelencia me
permito solicitar la valiosa colaboraci6n de las autoridades nicaragüenses en el sentido
de que quieran tener a bien transmitir esta resoluci6n a los barcos de pesca de vuestro
pais que operan cerca de la zona de referencia". 39
There was no adverse reaction from Nicaragua. 27
3.20. The bilateral negotiations which took place in the late 1970s and to
which the Nicaraguan Memorial (at pages 36-8) attaches so much
significance, are in no way inconsistent with the general pattern of the
practice of the two States and, contrary to what is suggested by Nicaragua,
do not point to any uncertainty on the part of Honduras regarding her
sovereignty over the islands and maritime areas north of the 15 h parallel.
The acceptance by Honduras of the proposai for negotiations and the
opening of bilateral consultations was motivated only by an entirely
understandable desire to achieve a written agreement formally and finally
delimiting the single maritime boundary along what was already a line
accepted and applied in practice, and fully respected by bath Parties until
that time.
3.21. The consistent practice of Honduras during this period shows that
the Nicaraguan assertion that the Honduran claim over the islands and
1
maritime spaces north o28the 15 phrallel was a29new position adopted by
Honduras" in the 1980s has no basis in fact.
VI. PRACTICE SINCE 1979
3.22. In contrast to the period before 1979, the years since then have seen
a sharp dispute between Nicaragua and Honduras regarding the waters
north of the 15 h parallel, as a result of Nicaraguan (or Nicaraguan
sponsored) incursions. Nevertheless, throughout this period, Honduras
continued its peaceful administration of the islands and maritime areas
1
extending down to the 15 harallel by enacting pertinent legislation. The
Honduran authorities always reacted vigorously and sought to put an end to
1
ali fishing in the waters north of the 15 paralhel which had not been
properly authorized by Honduras. Honduras continued to affinn that for
the two States, the starting point of the maritime boundary remained the
coordinates identified in 1962 by the Honduras-Nicaragua Mixed
Commission, 30 and the delimitation line the one that follows the 14°59.8'
parallel. Likewise, Honduras maintained its position that, in the absence of
27 HCM, vol 2, annex 18 (Note of 17 April 1972).
28
NM, pp 41-42, paras 7, 12, 13 and 14.
29
In 1977, Nicaragua called for "determining a definite marine and submarine
delimitation" in the Caribbean Sea, implying the existence of an historie maritime
boundary that should be updated and made definitivethe light of the evolution of the
Law of the Sea.
30
Chapter 2 supra. 40
an express agreement regarding delimitation, the two States had tacitly
consented to treat the 14°59.8' parallel as the maritime limit between the
two countries in the Caribbean Sea. The acceptance by Honduras offormal
meetings between the two States to discuss the possibility of formally
incorporating the maritime delimitation into a definitive and written
agreement was always premised on the assumption that they the tine of
delimitation that follows the 14°59.8' parallel would be fully respected.
Any other assumption would have been inconsistent, for example, with the 31
oil and gas concessions which both States had granted since the 1960s.
3.23. For her part, during the same period, Nicaragua ignored her own
practice for weil over a century and aggressively began to advance its
claims in the Caribbean Sea, with the aim of asserting, years later, a
maritime area with a maximum limit extending from the mouth of the Coco
River to the 1 i 11parallel. In an attempt to achieve such a result, Nicaragua
artificially created a controversy between the two countries by stopping,
inspecting and capturing by force Honduran fishing vessels. This
harassment effected by Nicaragua in the jurisdictional waters of Honduras
1
north of the l5 h parallel were immediately followed by the formulation of
"paper claims" in an attempt to create effectivités or pseudo-effectivités,
where they did not exist before 1979. Nicaragua opted for this conduct, not
only to hide its definite absence of will to negotiate a written agreement on
the delimitation of their maritime areas in the Caribbean Sea, but also to
place herseIf in a better procedural position for a future international claim.
Notwithstanding these efforts, even official maps produced by Nicaragua
1
did •ot tr32t the area north of the 15 h parallel as part of Nicaraguan
terntory.
3.24. For the present proceedings, Nicaragua has relied almost entirely on
the product of this campaign, while ignoring well-established and well
documented Honduran practice as weil as her own conduct during the much
longer period before 1979. Nicaragua has annexed to ber Memorial only
carefully selected diplomatie correspondence concemed almost entirely
1
with the capture of Honduran fishing vessels north of the 15 h parallel since
1982. These incidents, instigated by Nicaragua, were intended to provide
support to its "paper claims", which Honduras always rejected, as is
evidenced in the diplomatie correspondence submitted to the Court by the
Parties. Therefore, the Nicaraguan claims are both recent and fragile.
31 Chapter 6 infra.
32
Infra para 3.59. 41
A. THE LEGISLATION OF THE PARTIES ON MARITIME AREAS
3.25. The Sandinista Revolution that overthrew the Govemment of
Nicaragua on 19 July 1979 brought a radical change in Nicaraguan33olicy
towards Honduras and other Central American countries. It also resulted
in a dramatic change in Nicaragua's policy conceming the maritime areas
that traditionally appertained to Honduras and Nicaragua in the Caribbean
Sea.
3.26. It was in the context of its own domestic political revolution that
the Nicaraguan Govemment approved, on 19 December 1979, the
Continental Shelf and Adjacent Sea Act. 34 Nicaragua also sought to make a
tabula rasa of her relations with other countries, unilaterally declared nuli
and void the 1928 Treaty conceming Territorial Questions at issue between
35
Colombia and Nicaragua (a treaty long considered as in force and duly
registered at the League ofNations).
3.27. The preamble of the 1979 Act declared that "until July 19 of this
Year of Liberation foreign intervention did not permit the full exercise by
the People of Nicaragua of its rights over the Continental Shelf and
Adjacent Sea - rights which correspond to the Nicaraguan Nation by
36
history, geography and International Law". Nonetheless, there was
nothing to prevent Nicaragua as an independent State from asserting its
37
rights on the continental shelf in the 1948, 1950 and 1974 Constitutions,
or approving on 20 December 1960, the Fishing Exploitation Ace and an 8
Executive Decree on 5 April 1965, delimiting a "national fishing zone" of
33 For an explanation of the origins of the conflict in Central America after 1978 and the
position of Honduras on this regard, see Border and transborder armed actions
(Nicaragua v. Honduras) (Jurisdiction and admissibility) case, Memorial of Honduras,
voll, chapter 1, February 23, 1987.
34
Ley sobre Plataforma Continental y Mar Adyacente, Decree N.205 of 19 December
1979. Published in La Gaceta N.88 of 20 December 1979. Article 2 states that "the
sovereignty and jurisdiction of Nicaragua extends over the sea adjacent to its seacoasts
for 200 nautical miles".
35
Declaraci6n de la Junta de Gobierno de Reconstrucci6n Nacional de Nicaragua, of 4
February 1980. See the text of the 1928 Treaty between Colombia and Nicaragua,
HCM, vol 2, annex 9.
36
NM, p 40, para 4.
37 Article 2of the 1948 Constitution of Nicaragua; Article 5 of the 1950 Constitution and
Article 3 ofthe 1974 Constitution. See also NM, p 36, para 10.
38 Ley sobre explotaci6n de la Pesca, Decree 557 of 20 December 1960. Published in La
Gaceta of 7 February 1961. 42
200 nautical miles 39 as a specialized competence for the purposes of
conservation and exploitation of fishing and any other resources. Nor did
anything prevent Nicaragua participating actively in the discussions on the
40
continental shelf within the regional and international fora. Indeed, sorne
of these facts were recognized by Nicaragua herself in her Ap41ication
before the Court instituting the present proceedings.
3.28. The 1979 Nicaraguan Continental Shelf and Adjacent Sea Act,
asserted, in generic terms, that Nicaragua exercised territorial sovereignty
over islands, cays, banks and reefs located on its Continental Shelf, but did
42
not mention their names. This pattern of imprecision and Jack of
identification of the islands, cays, banks and reefs is characteristic of the
entire Nicaraguan legislation, from the simple mention of the terms
"adjacent islands" in the Constitutions of 1948 and 1950 to the mention in
the 1974 Constitution, for the very first time, of the generic terms "the cays,
the promontories [and] the adjacent banks". 43 The same imprecision is
44
evident in the amended text of Article 10 of the 1987 Constitution that
removed the "promontories" feature from the national maritime territory.
These dispositions provide no evidence whatsoever that "the cays, the
promontories and the adjacent banks" referred to by Nicaragua were
111
located north of the 15 paraliel. Even the Nicaraguan geographers
recognized this reality. 45
39
Executive Decree N.I-L of 5 April 1965 (Delimiting the national fishing zone), Article
1 states:ln conformity with article 5 of the Constitution, in order to promote the better
conservation and rational exploitation of Nicaragua's fishing and any other resources,
the waters lying between the coast and a line drawn parallel to it at a distance of 200
nautical miles seaward, both in the Atlantic and in the Pacifie Oceans, shall be
designated a "national fishing zone''.Published in La Gaceta N.82 of 8 April 1965.
40 Nicaragua participatedin and signed the Declaration of Montevideo of 8 May 1970, the
Declarationof Lima of 8 August 1970 and the Declaration of Santo Domingo of 9 June
1972 concerning the right of States to explore, exploit and preserve the natural
resourcesof the Continental Shelf and the sea adjacent to their coasts. Nicaragua also
participated in the sessions of the Third United Nations Conference on the Law of the
Sea.
41
Application of the Republic of Nicaragua of8 December 1999, para 2.
42
Articles 1 and 3 supra, note 34.
43
Article 3of the 1974 Constitution of Nicaragua.
44 Amended by Article 1 of the Law of Partial Reform of the Constitution of Nicaragua
(Ley de Reforma Parcial a la Constituci6nPolitica de la Republica de Nicaragua, Law
N.330 of 18 January 2000. published in La Gaceta N.l3 of 19 January 2000).
45 See the cartographie evidence infra at para 3.59 et seq. ln addition, Professor Francisco
Teran and Doctor Jaime Incer Barquero in their book "Geograjla de Nicaragua", (First
Edition, 1964, sponsored by the Banco Central de Nicaragua) describe and locate the
insular domain of Nicaragua far to the South of the 15'hparallel. The authors at page 37
state: 43
3.29. By contrast, the legislation of the Republic of Honduras expressly
identifies the islands, cays, banks, and reefs located within her maritime
46
areas. In 1950 Honduras declared a maritime area of 200 nautical miles
for the protection and exploitation of its natural resources, 47 a territorial sea
48
of 12 nautical miles in the 1965 Constitution and an Exclusive Economie
Zone of 200 nautical miles in the 1982 Constitution. 49 The decision to
become a party to the 1982 United Nations Convention on the Law of the
50
Sea was consistent with Honduras' desire to have its sovereignty and
jurisdiction over maritime areas outside the land territory clearly defined
and delimited, as weil as its natural resources duly protected and exploited
pursuant to international law. Legislation enacted by Honduras over the
"Opposite to the bar in whose meridional point The Bluff, the outer harbour of
Bluefields is located, at approximately 40 miles of the coast, there are situthed
Corn Islands, which are the on/y islands that Nicaragua possesses in the open
sea. The bigger Corn Island, with its beautiful bay surrounded by slender coconut
palms, is changing into an attractive center for tourism. Furthero the East, but
forrning the same geographical unit, there are the San Andres and Providencia
islands, which, despite their distance, correspondo Colombia, whose sovereignty
had to be recognized by Nicaragua through the Treaty Sarcenas Meneses
Esguerra, which ended its pretensions on the Nicaraguan Atlantic coast.
Islands and Cays.
Along the described littoral, numerous cays or coral islets emerge [... ] such as the
islets Jab6n, Paloma, lguana, Water Cay and the Misquitos Cays,in number of76,
opposite ta Puerto Cabezas, that constitute real geographical curiosities of the
tropical seas ofwarrn waters[ ..." (Emphasis added). HCM, vol2, annex 166.
46
Article 6 of the 1957 Constitution of Honduras stated that the foJiowing islands and
cays belong to Honduras: "5. The Bay Islands, the Swan Islands, SantaniJJa or
Santillana, Viciosas, Misteriosas and the cays: Garda, VivoriJios, Cajones, Becerro,
Cocorocuma, Caratasca, Falso, Gracias a Dios, Los Bajos, Pichones, Palo de Campeche
and aJI others Jocated in the Atlantic which historicaJJy and juridicaJJy belong to if'.
This text was reiterated in A11icle5 paragraph 5 of the 1965 Constitution of Honduras.
Article 10 of the 1982 Constitution of Honduras, states that, "lt belongs to Honduras
[... ) the Bay Islands, the Swan Islands, also caJied Santanilla o SantiJJana, Viciosas,
Misteriosas; and ZapotiJJos Cay, Cochinos, Vivorillos, Seal (Becerro), Caratasca,
Cajones o Hobbies, Mayores de Cabo Falso, Cocorocuma, Palo de Campeche, Los
Bajos, Pichones, Media Luna, Garda and the banks Salmedina, Providencia, De Coral,
Cabo Falso, Rosalinda and Serranilla and aJI others situated in the Atlantic that
historicaJiy, geographicaJJy andjuridicaJJy belong toit."
47
Legislative Decree N.25 of 17 January 1951, approving Decree N.96 of 28 January
1950.
48
Article 5 of the 1965 Constitution of the Republic of Honduras. This declaration has
been reiterated in Article Il ofthe 1982 Constitution and Article 2 ofthe 1999 Law on
Maritime Areas of Honduras.
49
Article Il of the 1982 Constitution of the Republic of Honduras. The exclusive
economie zone was also proclaimed in Article 6 of the Law on Maritime Areas of
Honduras of30 October 1999.
50
Honduras signed the Convention on the Law of the Sea on 10 December 1982, and
ratifiediton 5 October 1993. 44
last two decades, such as the Law on Exploitation of the Natural Resources
of the Sea, 51 the Hydrocarbons Law, 52 the Law on Mining 53 and the Law on
54
Maritime Areas of Honduras has provided an important legal framework
that confirms the consistency of the Honduran purposes in accordance with
the principles established in the 1982 UN Convention on the Law of the
51 Ley de Aprovechamiento de los Recursos Naturales del Mar, Decree N.921 of28 April
1980. Published in La Gaceta N.23127 of 13 June 1980; Article 1 ofwhich stated that
"Without prejudice to the provisions of the Constitution and of the laws of the Republic
conceming the territorial sea and the continental shelf, the StateHonduras shall have,
in the exclusive economie zone extending up to a distance of 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured; (a) Sovereign
rights for the purpose of exploiting, exploring, conserving and managing ali natural
resources, whether living or non-living, of the seabed and subsoil and the superjacent
waters, and over any economie exploration and exploitation of the zone, such as the
production of energy from the water, currents and winds; (b) Exclusive rights and
jurisdiction with regard to authorization and regulation of the construction, operation
and use of artificial islands and of installations and structures of any kind, including
jurisdiction with regard to customs, fiscal, health, safety and immigration regulations;
(c) Jurisdiction and control in ali matters relating to the regulation, authorization and
conduct of marine scientitic research, which shall be conducted only with the prior
consent of the State of Honduras and with the participation of a representative of its
Government whenever the latter deems it desirable; (ch) Jurisdiction and control for the
purpose ofpreserving the marine environment and preventing, reducing and controlling
pollution from any source; (d) Such other rights and obligations as derived from the
sovereign rights over the resources of the zone."
52 Ley de Hidrocarburos, Legislative Decree N.l94-84 of 25 October 1984. Published in
La Gaceta N.24557 of 28 February 1985; Article 2 of which reads as follows, 'The
fields of oil, natural gas and other hydrocarbons are directly and inalienably owned by
the State, regardJess of where they are located on the soi! or subsoil of the territory of
the Republic, including the territorial sea, its contiguous zone, the exclusive economie
zone and the continental shelf."
53 Ley General de Mineria, Legislative Decree 292-98 of 30 November 1998; Article 2 of
which reads as follows, "The State of Honduras exercises eminent, inalienable and
imprescriptible domain on ali the mines and quarries found in the national territory,
maritime continental shelf, exclusive .economie zone and contiguous zone.''
54
Ley de los Espacios Maritimos de Honduras, Legislative Decree N.l72-99 of 30
October 1999, Article 7 of which states: "1) ln its exclusive economie zone, Honduras
hold sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or not-living, of the water column, the
seabed and its subsoil, and with regard to other activities for the economie exploitation
of this zone; 2) Fishing and the extraction of any other resource from this marine
environment is strictly forbidden for any foreign ships, unless otherwise agreed in an
international treaty or if the State of Honduras has expressly consented thereon; and, 3)
ln addition, Honduras also has jurisdiction regarding: a) the creation and use of
artiticial islands, installations and structures for the exploration and exploitation of
resources from the seabed and its subsoil; b) the scientitic research of the marine
environment; c) the protection and preservation of the marine environment against
pollution; and, d) to punish any infringement of the Honduran regulations and laws on
any of the above matters, in particular regarding fishing and the extraction of any other
natural resources, marine seientitic research and the prevention and fight against
pollution." HCM, vo12, annex 65. 45
Sea. This legislation along with the Fishing Law and the Environmental
55
Law have codified an evident group of rights and duties that Honduras
has exercised and exerts on its maritime areas and insular domain in the
Caribbean Sea, limited only by the freedom of navigation.
3.30. Nicaragua never protested or opposed the aforementioned
1
Honduran legislation or the presence of Honduras north of the 15 h parallel.
The Nicaraguan legislation of the same period, without identifYing the
islands, only declared a territorial sea of 200 nautical miles in the 1979
Continental Shelf and Adjacent Sea Act and mentioned an Exclusive
Economie Zone in the Law of Partia56Reform of the Constitution of
Nicaragua of 18 January 2000. In addition, Nicaragua became a Party to
the 1982 United Nations Convention on the Law of the Sea on 3 May 2000,
57
after filing her Application in the present case. This was intended to
support her claims in the Caribbean Sea.
3.31. In 1982, Nicaragua, in an attempt to be consistent with its
expansive and new maritime policy, published an Official Map of the
Republic, which included an inset comprising islands, cays, banks, reefs
and areas in the Caribbean Sea that appertain to Honduras. As described
further below, this new practice was flatly inconsistent with the maps that
had been produced prior to this time. 58 Hence, on 27 June 1984, the
Foreign Minister of Honduras rejected the map inset as unacceptable and
requested its rectification, remarking in his Note of the same date, that "the
inset includes, without the pertinent clarifications, the banks and cays of
Rosalinda and Serranilla located in the Continental Shelf of Honduras and
• • " 59
appertammg to our country .
3.32. In its Memorial, Nicaragua reveals that "the Official Map of the
Continental Shelf of Nicaragua of 1980, and the Official Map of the
Republic of 1982, included a box comprising Rosalinda, Serranilla and
1
adjacent areas up to the l7 h parallel, areas claimed as Nicaraguan in the
diplomatie correspondence with Honduras". 60 Honduras rejected this map
inset on 27 June 1984, because it included the banks of Rosalinda and
55 Ley de Pesca, Decree N.t 54 of 19 May 1959, published in La Gaceta N.I6807 of 17
June 1959; Ley de Media Ambiente, Decree N.J04-93 of 27 May 1993, La Gaceta of 30
June 1993.
56 Supra note 44. See also a 1999 summary on the legal situation of the coastal areas of
Nicaragua in HCM, vol2, annex 165.
57
Chapter 4 infra.
58
Infra,paras 3.58 et seq.
59 HCM, vol2, annex 37.
60
NM, page 40, para 5. 46
Serranilla, but, at the time, an official claim "up to Parallel 17" was totally
unknown. 61 .
3.33. At a later stage, the Foreign Minister of Honduras, through the
diplomatie Note of 7 April 1994, presented a formai protest to the
Nicaraguan Government due to a new inset in the Official Map of
Nicaragua, which included under the generic name "Nicaraguan Rise"
(Promontorio Nicara62ense) various Honduran features located north of the
14°59.8' parallel. The Honduran Foreign Minister reiterated the rejection
ofthe map inset "Nicaraguan Rise", in his Note of Il July 1995, affirming
63
that the area concerned was part of the territory ofHonduras.
3.34. A new edition of the Official Map ofNicaragua published in 1998
included the same inset. This Map was annexed to the Memorial of
Nicaragua as Figure B, Volume III (maps) arguing that it contains the
following inscription: "The maritime frontiers in the Pacifie Ocean and the
Caribbean Sea have not been juridically delimited". 64 This inscription does
not appear on the annexed map.
3.35. Quite apart from Honduran protests at these insets in the Official
Maps of Nicaragua, it is relevant to note that the Court, in the Frontier
Dispute (Burkina Faso/Republic of Mali) case, made the following
comments regarding the use ofmaps as a basis for assertions oftitle:
"Whether in frontier delimitations or in international territorial
conflicts, maps merely constitute information which varies in
accuracy from case to case; of themselves, and by virtue solely of
their existence, they cannot constitute a territorial title, that is, a
document endowed by international law with intrinsic legal force
for the purpose of establishing territorial rights [... ]
[... ] maps cao still have no greater legal value than that of
corroborative evidence endorsing a conclusion at which a court
has arrived by other means unconnected with the maps[.... ] The
61 On 10 October 1984, the Honduran Foreign Minister addressed a Note to the Foreign
Ministerof Nicaragua protesting the plan for Search and Rescue operations for missing
persons and/or aircraft (SAR operations) presented by Nicaragua at the 35th meeting of
Directors for Civil Aeronautics of Central America. The Nicaraguan plan contained
coordinates or limits for its SAR operations that were drawn over maritime jurisdiction
of Honduras, that is to say, from Cape Gracias a Dios up to the coordinates
I5°18'North and 82°14' West, following an azimuth of21 degrees. See HCM, vol2,
annex 39.
62
HCM, vol 2, annex 51.
63 HCM, vol 2, annex 54.
64
NM, pp 19, para47. 47
only value they possess is as evidence of an auxiliary or
confirmatory kind, and this also means that they cannot be given
the character of a rebuttable orjuris tantum presumption such as to
effect a reversai of the onus of proof."65
3.36. Honduras' reliance on maps confirming its title is based on an
effective and undisputed occupation of the area which is the subject of
these proceedings, right up to 1979, and which is retlected in abundant
examples of effectivités.6 By contrast Nicaragua has not made available to
the Court any evidence asto its occupation or effectivités. Indeed, prior to
the Nicaraguan diplomatie Note of9 June 1995, concerning the publication
of an inset in the 1994 Official Map of Honduras, that included the
Honduran Insular Possessions in the Caribbean Sea, 67 Nicaragua never
protested the previous Official Maps of Honduras that depicted the same
insular domain as Honduran. Nicaragua did not protest the Honduran
Official Map published in 1933, that had an inset with a drawing line titled
"Jurisdictional maritime line of Honduras", re-edited in 1954 and 1978 with
the line titled "Continental Shelf of Honduras" 68 which comprised ali the
1
islands and banks lying just north of the 15 h parallel. In addition,
Nicaragua kept silent regarding the Map of Honduras published in 1933 by
the Pan-American Institute of Geography and History, that included the
Honduran islands and banks situated to the north of the 15 h parallel.9
B. THE POLICY OF HARASSMENT AND INCIDENTS
PROVOKED BY NICARAGUA
3.37. The enactment of the Nicaraguan Continental Shelf and Adjacent
Sea Act in 1979 was a follow-up to the first incident ever provoked by
Nicaraguan authorities in the area north of the 15 h parallel. On 18
September 1979, the Nicaraguan Navy captured a Honduran vesse) while
fishing near Alagarto Reef (also known as Alargate or Alargado Reet),
1
located about 8 miles north of the 15 h parallel in Honduran waters. The
vesse) and the Honduran crew were captured and taken to Nicaraguan
territory. This constituted the first expression ofNicaraguan force against
Honduras' peaceful administration and sovereign territories and adjacent
maritime spaces.
65
Frontier Dispute, Judgment, ICJ Reports 1986, pp 582-583, paras 54 et seq.
66 Chapter 6 infra.
67
NM, annex 79.
68 See HCM, vol 3, Plates 23 and 25.
69
HCM, vol 3, Plate 24. 48
3.38. On 21 September 1979, the Foreign Minister of Honduras,
surprised by the sudden and unexpected capture of the abovementioned
vesse!, addressed a Note to the Nicaraguan Foreign Minister requesting in
friendly terms an investigation of the incident, emphasizing that it occurred
"eight miles to the north of the fifteenth parallel that serves as the Iimit
70
between Honduras and Nicaragua." The response of the Acting
Nicaraguan Foreign Minister was to offer ''to consider this matter
according to the fra71mal relations that happily exist between our peoples
and Govemments" regardless of the Honduran reaffirmation of the !5th
parallel as the limit between the two States. This incident was followed by
others provoked by Nicaragua in the area north of the !5th parallel in
Honduran waters. Regrettably, these incidents, together with the adoption
of the new Nicaraguan maritime policy, began a process of deterioration in
the hitherto friendly relations between the two countries.
3.39. On 23 March 1982, the Acting Minister of Foreign Affairs of
Honduras presented to the Govemment of Nicaragua a formai protest over
violations of Honduran sovereignty committed by two coastguard vessels
of the Sandinista Navy which entered as far as Bobel and Savanna Cays,
lying 16 miles north of the !5th parallel.72 Besides reiterating that the !5th
parallel is the traditional line observed by both States, the Honduran Note
of protest remarked that the aforesaid action "adds to a series of hostile
actions which, with increasing frequency, shows an attitude on the part of
the Government of Nicaragua that does not correspond to its repeatedly
expressed desire to have frank and truly friendly relations with the
73
Govemment of Honduras."
3.40. On 14 April 1982, the Nicaraguan Foreign Minister responded to
the above-mentioned Honduran Note, categorizing the incidents as
"hypothetical" and denying the existence of a traditional line between the
two States, because "according to the established rules of international law,
territorial matters must be necessarily resolved in treaties validly celebrated
and in conformity with the internai dispositions of the contracting States,
74
not having effected to date, any agreement in this regard." As will be
explained in Chapter 7 of this Counter-Memorial, no rule of law requires
70
HCM. vol 2, annex 21 for the Honduran Note dated 21 September 1979
(Communication via TRT).
71 HCM, vol 2, annex 22 for the Nicaraguan Note dated 24 September 1979
(Communication via TRT).
72
Note of23 March 1982, HCM, vol2, annex 23.
73 Ibid.
74
NM, annex 9. 49
that States should embody their existing agreement of a line which had long
been respected in the practice of the two States into a formai treaty.
3.41. By Note of 3 May 1982 the Honduran Foreign Minister responded
to the Nicaraguan Foreign Minister: "1 agree with Your Excellency when
you affirm that the maritime border between Honduras and Nicaragua has
not been legally delimited". 75 The meaning of this comment, in view of the
reaffirmations of Honduras over the traditional line in previous Notes,
could not be other than to agree that the line was not defined in terms of a
formai and written bilateral treaty. lndeed, to dispel any doubts on the
existence of the traditional line, the Honduran Foreign Minister
immediately remarked in his Note that,
"Despite this, it cannot be denied that there exists, or at least that
there used to exist, a traditionally accepted line, which is that
which corresponds to the parallel which crosses through the Cape
Gracias a Dios. There is no other way of explaining why it is only
since a few months ago that there have occurred, with worrying
frequency, border incidents between our two countries". 76
3.42. The Honduran position in this regard has always been clear and
unequivocal. It was retlected in the initial conversations between Honduras
and Nicaragua held on January 1979 in order to establish definitive
maritime boundaries in the Caribbean Sea, during which the Honduran
1
delegation clearly stated that the 15 harallel had been respected always by
both States as the traditional boundary and consequently the object of such
conversations had to be the express recognition of the parallel through a
definitive agreement. 77 These negotiations were interrupted by the
Nicaraguan Revolution of July 1979, but the Honduran position over the
14°59.8' parallel remained unchanged.
3.43. In his Note of 14 April 1982, the Nicaraguan Foreign Minister
added a proposai in the following terms: "in the interest of avoiding
frictions we propose that discussions on these problems be postponed, in
78
order to wait the adequate moment to proceed with negotiations."
Consistent with the position taken by Honduras in 1979 that the
75
NM, annex 78.
76 Ibid.
77
This meeting took place after the acceptance by Honduras of Nicaragua's proposai of
1977 to initiate conversations leading to a determination of the definitive marine and
submarine delimitationn the Caribbean Sea by means of a treaty. See NM, annex 4 for
the Nicaraguan Note datedIl May 1977 and HCM, vol 2, annex 20 for the Honduran
Note dated 20 May 1977.
78
NM, annex 9. 50
negotiations should take place for bath delimitations in the Pacifie Ocean
and in the Caribbean Sea, the Honduran Foreign Minister agreed with this
proposai, adding in his Note of 3 May 1982, "I coïncide with Your
Excellency that this is not the appro79iate moment at which to open a
discussion on maritime borders."
3.44. It is clear that, given the sensitivity of the issue and the prevailing
political circumstances at the time, bath States manifested interest in the
maintenance of peace by way of abstaining from introducing new points of
controversy. To that end, "in arder to prevent incidents" the Honduran
Foreign Minister proposed in his Note of 3 May 1982 addressed to the
Nicaraguan Foreign Minister, the establishment of a temporary line or zone
which "without prejudice to the rights that the two States might claim in the
future" cou1d serve as temporary limit of their respective areas of
80
jurisdiction. At a later date, on 19 September 1982, t81 Ministry of
Foreign Affairs ofNicaragua rejected this proposal.
3.45. In arder to clarify any misunderstanding on his proposai, the
Honduran Foreign Minister in his Note of 20 September 1982 addressed to
111
the Nicaraguan Foreign Minister recalled the importance of the 15 parallel
as the traditional dividing line for the prevention of incidents between the
two States, as follows:
"The current Govemment of Nicaragua, making use of its
sovereign rights, has decided to ignore this tacit agreement that,
for many years, has prevented unfortunate incidents, such as that
which now concern us and which negatively affects the already
79
NM, annex 78.
80 Ibid.
81
NM, annexes 10 and 16. An early meeting between the representatives of the naval
forces of Honduras and Nicaragua took place in Puerto Corinto on 9 July 1982, aimed
to find among others, a solution to the problemsthe Atlantic Ocean, particularly, to
the capture offishing vessels of the two States. The confidential report of 12 July 1982,
addressed to the Minister of Foreign Affairs of Honduras by the Secretary of the
Honduran Delegation to this meeting, Ambassador Roberto Arita Quifionez, reads as
follows:"On the problems in the Atlantic Ocean. the two delegations recognized that
always respected the 14°59'08" parallel (known as the 15 parallel) as the traditional
line for the maritime boundary between the two Republics, and based on this line [... ]
the possibility to negotiate the creationzone of security and tolerance of five miles
to the north and five miles to the south of this parallel, aimed to reduce the possibilities
of armed incidents and to guarantee fishing and security to the tishermen of both
countries"See HCM, vol 2, annex 24 and annex 97 for the Deposition o5 June 2001,
signed by the members of the Honduran delegation to the same meeting. See also
Border and transborder armed actions (Nicaragua v. Honduras)(Jurisdiction and
admissibility)ase: annex 8 of the Memorial of Honduras and para 35 of the Counter
Memorial ofNicaragua. 51
fragile relations between our countries. It was precisely in order to
avoid reaching these extremes that this Ministry stated, 'the
temporary establishment of a line or zone might be considered
which, without pre-judging the rights that the two States might
claim in the future, coul82serve as a momentary indicator of their
respective territories'."
3.46. The statements made by the Honduran Foreign Minister in his Note
of 3 May 1982 do not raise any doubts as to the existence of a traditional
line between the two States; on the contrary, he reaffirmed it. Moreover,
his proposai of a temporary line or zone was made only in the interest of
preserving peaceful relations between the two States.
3.47. Unfortunately, new incidents provoked by Nicaragua continued in
the area north of the 15 h parallel. The Honduran Foreign Ministry
presented severa! formai protests for the violation of its territorial
sovereignty and the recurrent capture of Honduran fishing vessels and crew
by Nicaraguan patrols. Besides protesting the numerous and aggressive
incursions ofNicaragua in Honduran waters, the diplomatie Notes from the
Honduran Foreign Ministry consistently rejected any rights or claims of
Nicaragua over the area concerned and reaffirmed the existence of the
traditional line between the two States, and Honduran sovereignty over the
1 83
islands, cays and banks lyingjust north ofthe 15 parallel.
82 NM, annex 19.
83
See, e.g., the following Honduran Notes in Volume 2 of this Counter-Memorial: notes
of21 September 1979; N.0031-DSS of23 March 1982; N.2176 SD of 18 September
1982; N.060 of9 February 1983; N.202 DA of 11 May 1983; N.406 DA of 17 August
1983; N.456-DA of 13 September 1983; N.479 DA of 17 October 1983; N.517 of27
October 1983; N.546 DA of 7 November 1983; N.571 DA of 14 November 1983;
N.603-DA of 12 December 1983; N.609-DA of 16 December 1983; N.408-DA of27
June 1984;N.053-DA of29 January 1985;N.257-DA of 18June 1985;N.358-86-DSM
of 29 September 1986; N.005-ACAYM of 30 January 1987; N.084-CAYM of 30
October 1991; N.091-CAYM of 5 December 1991; N.336-DSM of 30 June 1993;
N.124-DSM of7 April 1994; N.0-216-DSM of 19 Apri11995; N.226-SAM-95 of 11
July 1995; N.465 DSM of 18 December 1995; N.363-SAM-95 of27 December 1995;
COSOF 081/97 of7 August 1997; N.180 DSM of 19June 1998; N.243-DSM of8 July
1998; N.393/DSM of 18 September 1998. HCM, vol 2, annexes 21, 23, 25-35, 37, 40-
43,46-7,49,51, 53-56, 58-61.
See also: Honduran diplomatie Notes N.235 DSM of 19 April 1982; N.254-DSM of 3
May 1982;N.1653 of 16July 1982;N. DSS-502 of20 September 1982;N.228-DSM of
15 April1983; N.243-DSM of 19Apri11983; N.245-DSM of21 April 1983;N.426 DA
of29 August 1983; N.552-DA of9 October 1984; N.I62-DA of 19April 1985; N.018-
CAYM-89 of 5 February 1989; N.205-DGCA of26 August 1992; N.218 of 27 August
1992; N.362-DSM of26 October 1992; N.363-DSM of27 October 1992; N.295 DSM
of 4 June 1993; EHN-N.564/94 of9 Novembcr 1994;N.487/DSS of9 November 1994;
EHN-N.573/94 of 16November 1994;N.197-SAM-95 of 13June 1995;N.001-DSM of
3 January 1996; N.I15-DSM of 19 March 1999; and EHN/301/99 of 30 November 52
C. THE RECENT AMPLIFICATION OF THE NICARAGUAN
MARITIME CLAIMS
3.48. In the 1990s, Honduras continued with its efforts to settle
differences with Nicaragua by setting up on 5 September 1990 a Mixed
Commission for Maritime Affairs to examine the border issues and
fisheries problems in the Atlantic Ocean. 84 The Mixed Commission met in
1991 and 1992, but a third meeting schedu1ed for 7 July 1993, was
cancelled at the request of Nicaragua. 85 Throughout ali these years,
Honduras maintained its position that 14°59.8' was the maritime limit
between the two States.
3.49. The diplomatie correspondence exchanged between the two States
in 1993 reveals that the Nicaraguan claims to the maritime areas north of
111
the 15 parallel continued to be presented in generic and uncertain terms.
The uncertainty of its claims can be observed in the diplomatie Notes of 4
January 1993 and of 25 June 25 1993, where the Nicaraguan Foreign
Minister stated, "the areas underNicaraguan sovereignty andjurisdiction in
the Caribbean Sea have always historically extended to the north beyond
86
said Parallel" without claiming any extension "up to Parallel 17''.
3.50. The unrealistic extension of the Nicaraguan claim was not officially
known until 12 December 1994, when the Nicaraguan Foreign Minister
addressed to the Honduran Foreign Minister the diplomatie Note stating
that "Nicaragua has always executed jurisdictional acts in those maritime
87
areas, up to parallel 17" (and it is to be noted that Nicaragua's claim now
extends beyond the 1 i 1parallel) and the Note stating that "the Republic of
Nicaragua, Mister Minister, has always extended its jurisdiction up to
parallel 17° latitude north." 88 The Honduran Foreign Minister firmly
111
rejected the Nicaraguan assertion of its claim north of the 15 parallel in
the following terms,
"This is inadmissible since this parallel has been a border
traditionally respected by both our States. This bilateral
1999. NM, vol II, annexes 101, 78, 20, 19, 21, 22, 23, 102,28, 30, 31, 32, 33, 34, 35,
80, 81, 36, 37, 83, 40, 44 and 45.
84 NM, annex 84, the Joint Declaration of 5 September 1990.
85
NM, annexes 85, 88 and 90.
86 NM, annexes 65, 66 and 73.
87
NM, annex 49.
88
NM, annex 50. The same claim has been reiterated in the Notes of 5 May 1995 and of9
June 1995 (annexes 53 and 79 of the Memorial ofNicaragua). 53
recognition is demonstrated beyond any doubt by documentary
proofs and effectivités.
For the above mentioned reasons, my Government rejects the
assertion expressed by Your Excellency, that the areas mentioned
to the north of the said parallel, have been under Nicaraguan
sovereignty and jurisdiction, since Honduras presen89y exercises
effective control within those maritime spaces."
3.51. On 24 March 1995, Nicaragua proposed to Honduras to study the
delimitation of maritime areas in the Caribbean Sea. 90 This resulted in the
setting up of a bi-national Commission of Honduras and Nicaragua, which
held its first meeting in Managua on 20 April 1995 and created a sub
commission in charge of delimitation issues in the Caribbean Sea. 91 On 5
May 1995, Nicaragua sent a diplomatie Note to Honduras reiterating its
claims "up to parallel 17 latitude north." 92This note was in response to the
Honduran Note of protest of 19 April 1995, presented after the capture of a
Honduran vesse) on 9 April while fishing at latitude 15°00', longitude
93
82°20'. Regrettably, this event along with the new claims by Nicaragua,
weighed heavily against the work of the second meeting of the bi-national
Commission at Tegucigalpa on 15-16 June 1995. Aside from the
installation of the sub-commission for delimitation issues in the Caribbean
Sea, nothing came out of this meeting.94 Contrary to the affirmations made
by Nicaragua in the sense that the negotiations "failed", such negotiations
in reality did not start at ali. Meanwhile, Honduras remained faithful to its
position that the 14°59.8' parallel constituted the boundary between the two
States.
3.52. The Honduran diploma95e Note of 11 July 1995, further illustrates
the position of Honduras. This Note, which Nicaragua ignores, deserves
close examination. First of ali, the Note recalls that the Republic of
Honduras by Executive Decree No. 689 of 23 January 1930, approved the
map of the Honduran geographer Dr. Jesus Aguilar Paz, that includes
within the Honduran territory ali the islands, banks and reefs lying just
north of the 14°59.8' parallel, without any protest on the part ofNicaragua.
89 See NM, annex 83 for the Honduran Note of June 13, 1995.
90 HCM, vo12, annex 52 (Nicaraguan Note of24 March 1995).
91
NM, annex 91.
92 NM, annex 53. (Nicaraguan Note N.950184 of5 May 1995).
93
HCM, vol2, annex 53.
94 NM, annex 92.
95
HCM, vol 2, annex 54 in reply to the Nicaraguan Note of9 June 1995 (NM, annex 79). 54
The Note also recalls that Nicaragua kept silent when the Constitutions of
Honduras mentioned ali the geographie features located in this area as part
of the Honduran territory. lt adds that Nicaragua never exercised any
jurisdiction or sovereignty in the area north of this parallel and rejects the
Nicaraguan claims up to the 1 ih parallel and over the "Nicaraguan Rise"
which is a new name given to a geographical accident. The Note affirms
that the name does not produce by itself any juridical title over the area,
which in fact was previously known under the name "Mosquitia
Hondurefia" and as a prolongation of the land and continental shelf of the
Honduran Department of Gracias a Dios. The Note also recalls that
petroleum exploration and exploitation concessions granted by Honduras
and Nicaragua in the Caribbean Sea, recognized and respected the limit of
the 14°59'08" parallel. The Note ends with an expression ofwillingness on
the part of Honduras to prove, if necessary, that there existed juridical,
historie, geographie, geological, political and administrative grounds as
weil as special circumstances that support the Honduran rights to include
within its territory, the geographie features lying north of the !5thparalie!.
3.53. There were other incidents. On 17 December 1995, Nicaraguan
coastguards captured five Honduran fishing vessels and crew in Honduran
territorial waters, northof the 15 paralie!. Honduras protested the incident
in Notes of 18 December 1995 and of 27 December 1995 addressed to the
96
Foreign Minister of Nicaragua. Following this incident, created by
Nicaragua in an attempt to reinforce its juridical position through the
97
expedient of a "paper claim", the Ad-Hoc Commission of Honduras and
Nicaragua held a special meeting in Managua on 22 January 1996 in which
both delegations agreed that the purpose of the meeting was to look for an
interim agreement, or provisional scheme, that would avoid the recurrence
of incidents by establishing "a common fishing zone" for the fishing
98
vessels of both countries. ln the second meeting of the Ad-Hoc
Commission held in Tegucigalpa on 31 January 1996, the Honduran
delegation, faithful to its traditional position that the !5th parallel
constituted the maritime boundary between the two countries, reiterated its
proposai for "a common fishing zone of three nautical miles to the north
and three nautical miles to the south of parallel 15°00'00" latitude north and
99
82°00'00" longitude west." This proposai was not accepted by Nicaragua
96 HCM, vol 2, annexes 55 and 56.
97
NM, p 56. para 51.
98 NM, annex 93. Minutes of the Special Meeting of the Ad-Hoc Commission of the
99 delegationsof the Republics of Honduras and Nicaragua held on 22 January 1996.
NM, annex 94. Minutes of the second meeting of the Ad-Hoc Commission of the
delegationsof the Republics of Honduras and Nicaragua held on 31 January 1996. 55
whose counter-proposal was to establish the entire common fishing zone
between the 151h and 1 ih parallels, that is to say, in Honduran waters.
Failing an agreement on the issue, Nicaragua continued with its policy of
harassment and incidents north of the same paraliel.
3.54. Following the signature in New York by the Foreign Mi100ters of a
Memorandum of Understanding on 24 September 1997, with a view to
exploring "possible solutions to the situations existing in the Gulf of
Fonseca, in the Pacifie Ocean and the Caribbean Sea", a new Mixed
Commission of Honduras and Nicaragua met in Guatemala from 1 to 2
101
October 1997. During the meeting, the Head of the Honduran delegation
made comprehensive and balanced proposais, for achieving an overall
solution to ali outstanding questions, in a comprehensive treaty. ln the
Caribbean Sea, Honduras proposed the definition of the maritime boundary
for the territorial sea and contiguous zone along parallel 14°59.8' north and
the submission of the delimitation of the Exc102ive Economie Zone to the
International Court of Justice or arbitration. The Nicaraguan Delegation
failed to address the maritime delimitations in the Caribbean Sea and in the
Pacifie Ocean. This was the last negotiation effort promoted by Honduras
to resolve pending maritime delimitation questions with Nicaragua.
1
However, incidents north of the 15 parallel continued to be instigated by
Nicaragua, notwithstanding its disposition expressed in the Joint
Memorandum ofUnderstanding to arrive at a solution of the disputes in the
103
Caribbean Sea. Meanwhile, Honduras remained faithful to its position
that the 15 parallel constituted the traditional maritime boundary between
the two States.
3.55. In conclusion, the diplomatie Notes exchanged between Honduras
and Nicaragua since 1979 confirm beyond doubt the continuous and
consistent Honduran position on the existence of a traditional maritime
boundary between the two States, which is parallel 14°59.8', as weil as the
repeated assertion of Honduran sovereignty and jurisdiction over the
maritime areas, islands and banks lying just north of this parallel. The
diplomatie correspondence also demonstrates the absence of peaceful
1
occupation and control by Nicaragua of the waters north of the l5 hparallel
despite its policy of harassment of Honduran fishing vessels and fishermen.
Finally, the diplomatie Notes reveal the lack of any foundation for the
Nicaraguan claims "up to Parallel 17".
100 NM, annex 95.
101
NM, annex 96.
102 HCM, vol 2, annex 98, Statement, with notarial certification, of Dr Carlos Roberto
103 Reina, former President of Honduras.
NM, annex 98. 56
3.56. None of the Honduran diplomatie Notes can serve as a basis for the
erroneous affirmation ofNicaragua that Honduras wished by its diplomatie
action during this period to change the terminal point of the land boundary
identified in 1962. The bilateral diplomatie correspondence confirms the
existence of a historie or traditional maritime delimitation tine on the
14°59.8' parallel, which Nicaragua has attempted in vain to move towards
111
the 17 parallel, progressively and in severai steps since 1979.
3.57. The conduct of Honduras conceming legislation on maritime areas
and its assertion of sovereignty over its natural resources during this period,
was consistent with evolving international law of the sea. By contrast, the
conduct of Nicaragua was designed to undermine the traditional tine of
maritime delimitation, creating a policy of"papers claims".
VII. CARTOGRAPHie EVIDENCE
3.58. Early maps of Honduras- both official and unofficial- show one
or more of the islands and cays in question as being part of Honduras. By
way of example, the "Mapa de la Republica de Honduras" by AT Byme
(Ingeniera Civil Del Gobiemo de Honduras, Cotton & Co), of 1886, 1888
and 1900 clearly shows, amongst others, Media Luna Cay and Bobet Cay
104
(which appears under the name of Babilonia) as being part of Honduras.
3.59. In contrast, official and unofficial maps ofNicaragua from the same
period do not show any of the islands which Nicaragua now claims as
falling within its territory. For example, none of the islands and cays
claimed by Nicaragua in its Memorial in these proceedings is to be found
on an Official Map of Nicaragua dated 1898, compiled by order of 105
President Zelaya (but not referred to in Nicaragua's Memorial).
Similarly, maps of 1965 106 and 1982, 107along with a set of official maps
108
showing political and hydrographie features of Nicaragua, dated 1993,
104 See Plate 8.
105
Document 3-08 deposited with the Registry. A photocopy of this map exists in the
Library ofCongress map collection.
106
HCM. vol 3. Plate 29. See also Repûblica de Nicaragua, Ministerio de Fomenta
Direcci6n General de Cartografia, Mapa Poliitico1966). Document 3-09 deposited
with the Registry.
107
HCM, vol 3, Plate 28.
108 See Repûblica de Nicaragua, Mapa escolar orogrâfico e hidrogrâfico, preparado y
publicado par el Instituta Nicaragüense de Estudios Territoriales con elfinanciamiento
del Banco Central de Nicaragua. Managua 1993 and Repûblica de Nicaragua, Mapa
escolar politico-administrativo, preparado y publicadoel!nstituto Nicaragüense de 57
do not include any of the islands and cays which Nicaragua now claims as
being located within Nicaraguan territory. The claim set forth in
Nicaragua's Memorial ignores its own cartography, both historical and
present day. The omissions become even clearer when it is noted that ali of
these maps do include the islands and cays which lie south of the 15 1h
parallel over which Nicaraguan sovereignty is claimed and recognized.
Indeed, it is noteworthy that the Nicaraguan Memorial includes not a single
historical map to confinn the Nicaraguan claim to the islands in question.
For the most part, the cartographical evidence upon which Nicaragua relies
is recent and self-serving and has been prepared by Nicaragua for the
purpose of these proceedings, and much of it post-dates the filing of
Nicaragua's Application. Nicaragua's treatment of its own cartographical
history is easily explained: its own maps do not support its claim to the
1
islands and the area north of the 15 parallel.
Estudios Territoriales con el jinanciamiento del Banco Central de Nicaragua.
Managua 1993: deposited with the Registry as document 3-10. CHAPTER4
THE APPLICABLE LAW
4.1. The question of what constitutes the law applicable to the
delimitation of the maritime boundary in the present case ought to be (and,
in the view of Honduras, is) straightforward. Unfortunately, the treatment
of this question in the Nicaraguan Memorial is confusing and intemally
inconsistent. Accordingly, it is necessary to reassess the whole issue in a
clear and systematic way.
4.2. Three points need to be clarified at the outset: first, the applicability
of the 1982 UN Convention on the Law of the Sea to the facts of the case
(which is dealt with in paragraphs 4.5 to 4.9, below); second, the
identification of the relevant legal principles applicable to the case
(paragraphs 4.10 to 4.17) and, third, the place and role of equity
(paragraphs 4.18 to 4.27).
4.3. It is then necessary to examine in greater detail two matters. First,
there is the legal definition of islands and the application of that definition
to the different islands, islets and cays which lie to the north of the 15h
parallel (paragraphs 4.28 to 4.32). The presence ofthese islands, which are
part of the territory of Honduras (see Chapters 2 and 6 of this Counter
Memorial), is of obvious importance in determining the location of the
maritime boundary, something which Nicaragua attempts to distort in its
Memorial. Second, there is the Nicaraguan argument regarding the alleged
significance ofthe geomorphological feature referred to as the "Nicaraguan
Rise", where again Nicaragua misstates the applicable law (paragraphs 4.33
to 4.35).
4.4. The application of these relevant legal principles to the facts of the
present case will then be addressed in Chapter 7.
1. THE APPLICABILITY OF THE 1982 UN CONVENTION
ON THE LAW OF THE SEA
4.5. Honduras, for its part, has no difficulty in applying this Convention,
to which it has been a party since 5ctober 1993. As for Nicaragua, it was
not a party to the 1982 Convention when it filed its Application to the
Court in the present case. Nicaragua only became a party on 3 May 2000,
before it filed its Memorial. This may mean, applying a formalistic view, 60
that the 1982 UNCLOS might not - per se - be applicable to the present
case.
4.6. Nicaragua is aware of this situation. ln order to demonstrate that
the Convention is nevertheless to be applied by the Court, Nicaragua
embarks upon a lengthy series of quotations from various cases. It begins
with sorne where the subject matter was the establishment of the
jurisdiction of the Court on the basis of a certain convention, (e.g., the
Mavromatis Palestine Concessions Case 1), a situation which, clearly,
differs from the present one, in which there is no problem of jurisdiction.
Whatever the situation may be, the rather tortuous line of argument
followed in the Nicaraguan Memorial ends up with the conclusion that the
very point of the applicability of the 1982 Convention "is of limited
importance, since [... ] the principles laid down by the 1982 Convention in
cases of maritime delimitation between States with opposite or adjacent
coastlines have now acquired customary value and form part of general
international law"?
4.7. This was already, for Honduras, an obvious point, since as the
Court said in the Case concerning the Continental Shelj (Libyan Arab
Jamahiriya/Malta):
"many of the relevant elements of customary law are incorporated
in the provisions of the Convention". 3
This is, in particular, the case for Article 15, dealing with the delimitation
of the territorial sea between States, as weil as for Articles 74, 76 and 83,
referring to the delimitation of the Exclusive Economie Zone, the definition
of the Continental Shelf and its delimitation between States. lt is also true
of Article 121, dealing with the legal regime of islands, a subject which
Nicaragua carefully avoids.
4.8. Nevertheless, the fact is that 1982 Convention has now entered into
force between the two Parties. The law applicable to the case is, therefore,
the positive customary international law of the sea, as reflected by the
practice of States, the relevant articles of the 1982 Convention, and the
international case law, beginning with the judgments of the International
Court of Justice.
NM, p 66, para 8.
2
NM, p 68, para 14.
JCJ Reports 1985, p 30, § 27, quoted in NM, p 69, para 16. 61
4.9. What is clear beyond any doubt is that the 1958 Geneva
Conventions on the Law of the Sea, including the Convention on the
Continental Shelf, are not applicable to the present case. Neither Nicaragua
nor Honduras were parties to this last Convention, the content of which
does not reflect the contemporary customary law of the sea. Nicaragua
itself appears to accept, in principle, that the 1958 Convention is not
applicable.4 Nevertheless, having accepted that it is not applicable to the
case, Nicaragua then attempts to make a theoretical argument on
geomorphology, based on the existence of a feature referred to as the
"Nicaraguan Rise" in which it attempts to resurrect concepts contained in
that Convention but no longer applicable in customary international law
and having no place in the 1982 UNCLOS. That argument is considered
and rejected in paragraphs 4.33 to 4.35 below.
II. THE LEGAL PRINCIPLES APPLICABLE TO THE CASE
A. THE ARGUMENTS OF NICARAGUA
4.1O. Chapter VI, Section B of the Nicaraguan Memorial deals with "the
applicable principles of general international law". Unfortunately, the
exposéis confused and inconsistent. It would have been logical to start by
recalling that the fundamental norm of customary international law is that
the "delimitation is to be effected by the application of equitable criteria
and by the use of practical methods capable of ensuring, with regard to the
geographie configuration of the area and other relevant circumstances, an
5
equitable result". Instead, the Nicaraguan Memorial begins by quoting in
full Article 15 of the 1982 UN Convention on the Law of the Sea on the
"delimitation of the territorial sea between States with opposite or adjacent
coasts". That provision lays down, in particular, the purely methodological
rule according to which "neither of the two States is entitled [... ] to extend
its territorial sea beyond the median line every point ofwhich is equidistant
from the nearest points on the baselines from which the breadth of the
territorial seasf each of the two States is measured".
4.11. Sorne paragraphs later, the Nicaraguan Memorial again briefly
alludes to "the equidistance-special circumstances rules embodied in
Article 15 of the 1982 Law of the Sea Convention" before returning to the
4
NM, p 64, para 4.
Case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area,
ICJ Reports 1984, pp 299-300, para 112, cited in the NM, p 72. para 20. This rule is
recognised later in the course ofits argument, at para 23 of the same chapter. 62
"fundamental norm" governing maritime delimitation. ln other words, at
this stage of its reasoning, the Memorial jumps, without transition, from the
method of delimitation, with which it starts, to the result to be achieved by
that delimitation (something which, self-evidently, ought to come first). In
this way, Nicaragua seems to suggest that the right way to achieve an
equitable result is to use the equidistance-special circumstances rule, taken
from Article 15. Although that provision is concemed only with the
delimitation of the territorial sea, the way in which it is presented in the
Nicaraguan Memorial suggests that its use is to be extended to the areas
situated further or beneath, namely the Exclusive Economie Zone and the
Continental Shelf. 6 In fact, however, Articles 74 and 83, which deal with
delimitation of the exclusive economie zone and the continental shelf
respectively, make no reference to any "equidistance/special
circumstances" principle.
4.12. Further confusion is then caused, immediately after this argument,
when Nicaragua abruptly recognizes that the objective of the delimitation
prevails over any other consideration, may it be the method or even the
equitable principles. Nicaragua quotes the Court in the Tunisia/Libya case
stating that:
"lt is [... ] the result wh7ch is predominant; the principles are
subordinate to the goal".
Then, in the course of its compilation of quotations from the jurisprudence,
the Nicaraguan Memorial quotes the observation made by the Court in the
Gulf of Maine Case:
"each specifie case is, in the final analysis, different from ali the
8
others".
4.13. It is, therefore somewhat difficult to follow the trajectory or logic of
Nicaragua's argument. Starting with an homage to the equidistance method
before enunciating the golden rule of the equitable result, then suggesting
that the first satisfy the second, Nicaragua further recognizes that principles
and methods are to be chosen in consideration of the specificities of each
6 One could point, at this stage, to this surprising extension of the use to be made,
according to Nicaragua,f the concept "special circumstances", where it is weil known
that the present general international law of the sea delimitation, including international
jurisprudence, most evidently favours the notion of "relevant circumstances", which is
both more larger in scope and more flexible.
Case concerning the Delimitation of the Continental Shelf (Tunisia!Libyan Arab
Jamahiriya), ICJ Reports 1982, p 59, paraquoted in the NM, p 73, para 24.
8
Case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area,
ICJ Reports 1984, p 290, para 81, quoted in the NM, p 72, para 25. 63
situation. Finally, in presenting the method which she considers to be the
appropriate method, Nicaragua concludes that "because of the particular
characteristics of the area in which the land boundary intersects with the
coast, and9for other reasons, the technical method of equidistance is not
feasible". Apparently favoured at one point, the equidistance method is,
then, finally banished. But this apparently clear eut final assertion is made
10
to support the application of "the Bisector Method", which, it transpires,
is nothing more than a variation of the same equidistance method!
B. THE POSITION OF HONDURAS
4.14. Honduras, by contrast, has no such difficulties in identifying the
legal principles applicable to the case. This Court said, in the Case
concerning Maritime Delimitation in the Area Between Green/and and Jan
Mayen, when commenting on Articles 74, paragraph 1 and Article 83,
paragraph 1 ofthe 1982 UN Convention on the Law of the Sea:
"that statement of an 'equitable solution' as the aim of any
delimitation process reflects the requirements of customary law as
regards the delimitation both for the continental shelf and of the
exclusive economie zone". 11
4.15. There is, indeed, an obvious hierarchy between the objective and
the method. The objective is to achieve an equitable result in the
delimitation of every maritime area to be delimited (whether it is the
Exclusive Economie Zone or the continental shelf).
4.16. As to the methods of delimitation, they are to be chosen in
consideration of the equitable principles appropriate to the case and the
"relevant circumstances" characterizing the situation and, notably, the
geography of the area in dispute. To recall what the Court said in 1969,
"there is no 1egallimit to the considerations which States may take account
of for the purpose ofmaking sure that they apply equitable procedures". 12
4.17. That being said, in its 1969 Judgment already referred to, the Court
expressed very clearly what was to be meant by recourse to equity and
equitable principles. In comparison with the Nicaraguan conception, the
meaning and scope of equity must then be briefly recalled.
9 NM, p 121, para 82.
10
NM, p 122, para 83.
11
ICJ Reports 1993, p 59, para 48.
12 North Sea Continental ShelfCases, ICJ Reports 1969, p 50, para 93. 64
III.THE PLACE AND ROLE OF EQUITY
4.18. As stated by the Court in 1969 in the North Sea Continental Shelf
Cases:
"[... ] it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires
13
the application of equitable principles[.... ]"
In the same decision, this Court insisted that:
"[... ] when mention is made of a court dispensing justice or
declaring the law, what is meant is that the decision finds its
objective justification in considerations Iying not outside but
within the rules, and in this field it is precisely a rule of law that
calls for the application of equitable principles. There is
consequently no question in this case of any decision ex aequo et
bono, such as would only be possible under the considerations 14
prescribed by Article 38, paragraph 2, of the Court's Statute."
4.19. This clearly means that reference to equity in maritime delimitation
cannot override those relevant circumstances of a legal nature which also
characterize the concrete case to be settled. Moreover, the Court has
always made clear that ali of these circumstances must be taken into
account. As the Court stated in the Libya/Malta case:
"Judicial decisions are at one [... ] in holding that the delimitation
of a continental shelf boundary must be effected by the application
of equitable principles in ali the relevant circumstances in order to
achieve an equitable result." 15
4.20. In the present case, there are severa] circumstances which are
plainly relevant (although they are ignored or played down by Nicaragua):-
(1) the historie root of title in the principle uti possidetis juris
(which is developed in Chapter 5 of this Counter-Memorial).
That root of title is particularly important in relation to the
islands and their adjacent maritime spaces;
(2) the effectivités,extending over severa) decades and more, on
the part of Honduras in the islands and waters north of the
151h parallel (which are set out in detail in Chapter 6 of this
13
ICJ Reports 1969, p 47, para 85.
14 Ibid, p 48. para 88.
15
Libya!Malta case. ICJ Reports 1985, p 38, para 45 (emphasis added). 65
Counter-Memorial) and which include the regulation of
1
fisheries north of the 15 h parallel and the grant of oil and gas
concessions there;
(3) Honduran sovereignty and exercise of jurisdiction over the
1
islands and surrounding waters north of the 15 parallhl (the
status ofwhich is considered below);
(4) the acquiescence on the part of Nicaragua in the exercise of
sovereignty and jurisdiction by Honduras in the islands and
maritime spaces north of the l5 harallel; 16 and
(5) the treaties resolving territorial questions and maritime
17
delimitations in the region.
18
4.21. The last relevant circumstance was addressed in Chapter 2 and is
further considered in Chapter 7. 19 It is, however, necessary to say
something at this stage regarding the importance of one ofthese treaties.
4.22. It is striking that Nicaragua carefully avoids dealing in any detail
with the 1928 Nicaragua!Colombia Treaty. This agreement established the
82"d meridian as the limit of sovereignty between Nicaraguan and
20
Colombian possessions. Since the entry into force of this treaty, the 82"d
meridian has been regarded by Colombia as a maritime boundary. 21 lt is
Nicaragua which, acting unilaterally, denounced the treaty in 1980. This
treaty, of a territorial nature, cannot be ignored by Honduras. It features as
one of the most relevant circumstances in the present case. It has a direct
impact on the drawing ofthe maritime delimitation established in the 1986
Honduras/Colombia Treaty. The delimitation line agreed in the 1986
Honduras/Colombia Treaty uses the 82"d meridian as a starting point,
drawing a line east of that point. It could, then, scarcely be argued that this
agreement is purely res inter alios acta, and of no concern for the
settlement of the present dispute.
16
Norwegian Fisheries Case, ICJ Reports 1951, p 116 et seq.
17
See Chapter 2, supra.
18 Paras 2.13-2.20 supra.
19
Paras 7.29 -7.37 infra.
20
Thus confirming Colombian sovereignty over the group of islands, the lntendencia de
San Andrésand Providencia.
21 The treaty came into force on 5 May 1930 with the exchange of ratifications. 1t was
registered by the Leagueof Nations on 16 August 1930 under Registration number
2426. HCM, vol 2, annex9. 66
4.23. A case dealing with the law of maritime delimitation cannot be
envisaged exclusively within this specifie branch of public international
law. Quite evidently, it is also to be settled in conformity with any other
pertinent rule of international law.
4.24. Under the applicable international law of treaties, there are very
strict conditions for a State to unilaterally denounce a treaty. They are, in
particular, set out in Articles 56, 59, 60, 61 and 62 of the 1969 Vienna
Convention on the Law of Treaties which essentially are articles codifying
general international law rules.
4.25. The recent jurisprudence of this Court has confirmed how strict and
exceptional are the situations enabling a State to denounce unilaterally a
treaty. But, at )east, in the Gabcikovo-Nagymaros Project Case (Hungary/
Slovakia), Hungary tried systematically to legally justify its unilateral
suspension and, then, termination of the 1977 Treaty
(Hungary/Czechoslovakia) at stake in that case; it presented five22rguments
in support of the lawfulness of its termination of this Treaty. Nicaragua
does nothing of this kind. It simply behaves and argues as if the 1928
Treaty by which the 82"d meridian has been established as a maritime
boundary did not exist. It is, nevertheless, evident that Nicaragua in the
present proceedings must explain and try to justify in law why it denounced
unilaterally a treaty which is one of the most relevant circumstances to be
taken into account in the present case. But there are also three other treaties
of maritime delimitation directly affecting the region, which are ignored by
the Nicaraguan Memorial, namely the 1972 United States/Colombia Treaty
(Vasquez-Saccio ), the 1986 Honduras/Colombia Treaty and the 1993
Colombia/Jamaica Treaty.
4.26. From a more general point of view, as will be further seen in
Chapter 7 of this Counter-Memorial, when considering the relevant
circumstances in this case, the achievement of an equitable result in the
maritime delimitation cannot be reached by picking and choosing
arbitrarily sorne circumstances and leaving out without motivation sorne
others. The Nicaraguan approach hardly meets this legal requirement. In
particular, the conduct of the Parties, a circumstance considered by the
Court in the Tunisia/Libya Case, which present striking similarities with
23
the present one, "to be highly relevant", has been completely ignored.
22 These were the existence of astate ofnecessity; the impossibility of performance ofthe
Treaty; the occurrence of a fundamental change of circumstances; the material breach
of the Treaty by Czechoslovakia; and, finally, the development of new norms of
international law. See ICJ Reports 1997, para 92 et seq.
23 ICJ Reports 1982, pp 83-4. paras 117-118. 67
Nicaragua itself shows that, prior to 1980, it readily accepted the traditional
1
maritime boundary along the 15 h parallel. No mention is made by
Nicaragua, for example, of the oil and gas concessions which provide
compelling evidence of a de facto boundary respected by both States until
the present day. In the same vein, nothing about the fishing practice or the
naval and aerial patrols is written. lt is for Nicaragua to demonstrate that
ignoring such self-evidently relevant circumstances is reconcilable with the
achievement of an equitable result.
4.27. Last but not )east, an equitable result may only be reached, either by
countries entering into negotiations for delimitation, or by any court or
tribunal, on the basis of each State taking a reasonable position. For its
part, Honduras maintains a reasonable position, as it does not primarily ask
for the line which would give to each and every island under its sovereignty
24
the full maritime zones to which it is legally entitled. Rather, Honduras
seeks the traditional line of delimitation, consolidated by a long standing
1
state practice, situated along the l5 harallel.
IV. THE LEGAL DEFINITION AND TREATMENT OF ISLANDS
4.28. The Nicaraguan Memorial, in the title of one of the sections of its
Chapter IX, declares: "The Method Treats the Islets and Rocks off the
25
Mainland Coasts on Their Merits".
4.29. In reality, when speaking of "islets and rocks", Nicaragua tries to
establish a calculated legal disqualification of true islands, in the sense
given to this expression in Article 121 of the 1982 Law of the Sea
Convention. The intention is to suggest to the Court that it should simply
ignore the presence of inhabited islands belonging to Honduras lying to the
north of the 15 parallel. As stated by the Court in its recent j udgment in
the case concerning Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, of 16 March 2001:
"[... ] the legal definition of an island is "a naturally formed area
of land, surrounded by water, which is above water at high tide"
(1958 Convention on the Territorial Sea and Contiguous Zone,
Art. 10, para. 1; 1982 Convention on the Law of the Sea, Art. 121,
para. 1)."
24
Supra para 2.3. A claim which would produce a dividing line much more inclined
towards the South East.
25 NM, p 138, para 31 et seq. 68
4.30. Ali relevant islands situated north of parallel 15, ali of them placed
under Honduran sovereignty, meet this definition of islands. ln particular,
it should be noted, from the point ofview of the law applicable to the case,
that severa! are inhabited by fisher folk. 26 Furthermore, under a 1976
Agreement between the USA and Honduras, triangulation points were
placed on Bobel Cay, Savanna Cay, and South Cay, to aid accurate
mappmg. 27
4.31. Now, if it is the intention of Nicaragua to depart from the definition
of islands given by Article 121 of the 1982 UN Convention on the Law of
the Sea and applied by international jurisprudence, it is for her to explain
why.
4.32. ln reality, the way in which Nicaragua considers the Bisector
Method as treating the islands "on their merits" is extraordinary. While
simply ignoring the Honduran islands, which are treated as "islets or
rocks", Nicaragua claims, at the same time, sovereignty over ali "islets and
rocks" situated to the south of its bisector line. Thus, by surreptitiously
attempting to transform a delimitation case into a litigation on the
attribution of sovereignty over insular territories, the Nicaraguan Memorial
goes even as far as listing ali those "islets and rocks" which it claims in the
28
same area.
V. THE NICARAGUAN GEOMORPHOLOGICAL ARGUMENT 29
4.33. ln its Memorial, Nicaragua makes much of the alleged significance
of the geographical feature which it refers to as "the Nicaraguan Rise".
Here again, the Nicaraguan argument seems contrived. It recognizes that
"this Court has rejected the view that geological or geomorphological
discontinuities of the seabed can be used to establish the location of
maritime boundaries within the 200 nautical mile limit". 30 Nicaragua then
tries to argue that her point is to rely on the fact that there is "one single
feature shared by Nicaragua and Honduras, which is characterized by the
26
Infra paras 6.52 and 6.54.
27
infra paras 6.65 and 6.70.
28 NM, page 166, "Islets and Rocks Claimed by Nicaragua". It is to be noted that this
section has the appearance of an afierthought, placed as it is ailer Nicaragua has
presented its main arguments, and in a form without paragraph numbering.
29 Supra paras 2.21-2.24.
30
NM, p 132, para 17. 69
31
absence of any natural dividing line". Nicaragua even illustrates that
argument in Figure II annexed toits Memorial. 32
4.34. But, in essence, this argument remains a purely geomorphological
one; precisely one of the type which has become unacceptable since the
new definition of the Continental Shelf in Article 76 of the 1982
Convention on the Law of the Sea. The change in the concept and legal
definition of the Continental Shelf was reflected in the Court's
jurisprudence as early as 1985. In its decision on the Continental Shelf
Case between the Libyan Arab Jamahiriya and Malta, the Court said:
"[... ] where the continental margin does not extend as far as 200
miles from the shore, natural prolongation, which in spite of its
physical origins has throughout its history become more and more
a complex and juridical concept, is in part defined by distance
from the shore, irrespective of the physical nature of the
intervening sea-bed and subsoil." 33
In so saying, the Court was commenting on Article 76 of the 1982
Convention of the Law of the Sea which actually reflected the new
consensus among States on the definition of the Continental Shelf, a
definition which has since been consolidated by State practice.
4.35. Quite apart from the fact that the Nicaraguan argument is
geographically unsound, the attempt to build an argument on the
geomorphology of the "Nicaraguan Rise" has no legal foundation. The
Court has been quite clear, as Nicaragua is obliged to recognize, that
arguments of this kind have no basis in the law since the 1982 Law of the
Sea Convention. In advancing this argument, Nicaragua is harking back to
the language ofthe 1958 Convention on the Continental Shelf, even while
it rec34nizes the inapplicability of the same Convention to the present
Case. The argumentcannot succeed.
31
Ibid.
32
This figure shows in particular that the continental shelf does not extend as far as 200
nautical miles.
33 ICJ Reports 1985, p 33, para 34.
34
The fact that neither Honduras nor Nicaragua is party to the 1958 Convention
distinguishes this case from theMayen case, in which both Denmark and Norway
were bound by the 1958 Convention. CHAPTERS
THE UT/ POSSIDETIS JURIS
I. THE SIGNIFICANCE OF UT/ POSSIDETIS JURIS
FOR THE PRESENT PROCEEDINGS
5.1. One of the most established principles of international law is that
the boundaries between the South and Central American States which
achieved independence in the early nineteenth century are to be determined
by applicationof the principle of utipossidetis juris. This provides that the
international boundaries of these States are to follow the line of the
administrative boundaries between the divisions of the Spanish Empire
which were their predecessors.
5.2. The application of the principle cannot be in doubt between
Honduras and Nicaragua. It was the basis of the Gâmez-Bonilla Treaty of
1894 between the two States, of the Arbitral Award of the King of Spain of
1906 (and its confirmation by this Court in the 1960 proceedings), and of
the 1992 decision of the Chamber of the Court in the Gulf ofF onseca case.
5.3. This Chapter explains the significance of the principle of uti
possidetis juris for the present proceedings, applying as it does to land and
maritime areas and establishing Honduran title to the territorial sea and its
sea-bed and the islands north of the 15 1h parallel. In its Memorial
Nicaragua has not invoked the principle to support its claim.
II. THE APPLICATION OF THE UT/ POSSIDETIS JURIS IN THE
REGION CONCERNED: THE EXISTENCE OF AN EFFECTIVE
BOUNDARY INHERITED FROM THE COLONIZATION
5.4. The records of the colonial period show that Cape Gracias a Dios
was accepted by the end of the eighteenth century as the dividing point
between the provinces ofN icaragua and Honduras.
5.5. The most authoritative proof of this fact is to be found in the
Arbitral Award of 1906, which is based on the application of the Spanish
uti possidetis. Such proofis also evident in the "Rapport de la Commission 72
d'examen de la question des limites entre les Républiquesdu Honduras et 1
du Nicaragua, soumis à S.M Alphonse XIII, Arbitre, le 22 juillet 1906".
This Report, which served as the basis for the King of Spain's decision,
confirms that (a) during the 16th century, Nicaragua had no access to the
Caribbean Sea and no ports there, 2 and (b) the traditional limit of the
Republic of Honduras in the Caribbean Sea3was Cape Gracias a Dios from
the 16th century until independence. The Report's conclusions were
founded on an abundant source of legislative and other documents from the
Spanish colonial age.
5.6. Nicaragua now persists in ignoring the mant1me and insular
consequences of the 1906 Arbitral Award. The written proceedings in the
Honduras v. Nicaragua case provide an abundant source of legislative and
other materials confirming the uti possidetis juris of 1821. These materials
establish that during the colonial period Honduras' southern limit on the
Atlantic coast of the Caribbean Sea was at Cape Gracias a Dios. This is
further confirmed by inter alia Annexes 49 to 55, 57 to 61 and 65 attached
to the Counter-Memorial submitted by the Government of the Republic of
Nicaragua in those earlier proceedings. 4
5.7. The limits stipulated by the Spanish Crown during the period of
colonial domination related to the mainland and to the adjacent maritime
and insular areas. For these latter areas the limits defined the respective
areas of jurisdictional competence of the military authorities, including
naval authorities engaged in defence and the control oftrade and smuggling
by sea.
5.8. Two aspects of the Arbitral Award of 1906 are to be emphasized.
First, when the dividing line was drawn at the mouth of the
Wanks/Coco/Segovia river, the arbitrator carefully attributed the islands
situated to the north of the delimited point as part of Honduras, whereas the
islands situated to the south ofthat point were part of Nicaragua:
"The extreme common boundary on the coast of the Atlantic will
be the mouth of the River Coco, Segovia or Wanks, where itjlows
out in the sea close to Cape Gracias a Dios, taking as the mouth of
the river its principal arm between Hara and the Island on San Plo
See the complete text in CIJ Mémoires, Plaidoiries et Documents. Affaire de la
Sentence Arbitrale rendue le 23 décembre 1906 (Honduras c. Nicaragua). Vol 1,
Réplique soumise par le Gouvernement de la République du Honduras, Annexe XI,
p 621 et seq.
2
Ibid, pp 654, 655, 656, 660 and 674.
Ibid, pp 655, 674, 676, 679, 680, 681, 682, 683, 686 and 687.
4
Ibid, note 1, pp 354 to 425, 429 to 450 and 458 to 461. 73
where said Cape is situated, leaving to Honduras the islets and
shoals existing within said principal arm before reaching the
harbour bar, and retaining for Nicaragua the southern shore ofthe
said principal mouth with the said Island of San Pia, and also the
bay and town of Cape Gracias a Dios and the arm of estuary called
Gracias which flows to Gracias a Dias Bay, between the mainland
5
and said Island of San Pio."
5.9. Second, many of the texts on which the Award is based include
references to the territories situated to the north and to the south of Cape
Gracias a Dios. The former are treated as part of Ho6duras, the latter form
part of the territorial sovereignty of Nicaragua. This necessarily implies
that taking Cape Gracias a Dias as the basis for a west-east projection
places ail areas to the north within Honduras and ali areas to the south to
Nicaragua. Although concemed with the territorial limits, the King of
Spain could not ignore the islands adjacent to the coast, which were well
known in the cartography of the eighteenth and nineteenth centuries. 7 The
Award on the limits of the continental territory necessarily had to have
effects on the Spanish islands adjacent to the continent, which were
attributed before independence to one or another provincial administration.
5.10. The Arbitral Award of 1906 rejected Nicaragua's claim to delimit
the territory by "the meridian which passes by Cape Camar6n and
following this meridian up to the coast". 8 Faced with a choice between a
1
meridian (the meridian that passes by Cape Camar6n) and a parallel (15 h
parallel, that passes by Cape Gracias a Dias), and giving full effect to the
overwhelming evidence, the King of Spain chose the latter. Indeed, the use
of meridians and parallels coïncident with well-known geographical
accidents for the delimitation of the administrative limits of the Spanish
9
Crown was a technique used frequently during the colonial period.
Ibid, emphasis added.
6 See Case concerning the Arbitral Award made by the King of Spain on 23 December
1906, vo11,p 18etseq(Preambu1arparas4, 10, 14, 15, 17,18,21 and26).
7 See, e.g., Plates 3, 4 and 7. See also paras 2.9 and 2.11 supra.
8
As expressly mentioned in the same Award and in the cited "Rapport de la Comisi6n
d'examen".
9
Likewise, it should not be forgotten that Cape Gracias a Dios was accidentally named
during the course of Christopher Columbus' fourth voyage, during which he discovered
the Central American region. "Gracias a Dias que dejamos estas honduras" ('Thank
God that we have left these depths"), the discoverer is said to have exclaimed when he
crossed theCape towards the south and felt relief at the abatement of a severe storm
after severa! days. The mention byColumbus of the word "honduras" subsequent1y
gave rise to the nameof the State, and the invocation of God gave the name to Cape
Gracias a Dios. 74
5.11. lt is obvious that the Nicaraguan claim before the King of Spain,
based as it was on meridian 85, implied a claim ofNicaraguan sovereignty
over the islands situated to the north and to the East of said meridian,
including (expressly) the Swan Islands10nd (impliedly) the Honduran
islands which Nicaragua now claims. This claim was not accepted by the
King of Spain. This is significant in relation to the principle of res
judicata. It means that Nicaragua cannat now aspire to sovereignty and
jurisdiction over maritime spaces and islands situated to the north of Cape
Gracias a Dias which formed part of its earlier- rejected- claim.
5.12. The Arbitral Award of 1906 attributes islands to the north of the
boundary to Honduras, and islands to the south to Nicaragua. Had the
ruling accepted the Nicaraguan meridian claim, ali the islands lying
eastward of it would have been presumed res judicata, that same principle
being applicable against a re-opening of any claim by Honduras.
5.13. In assessing the legacy of the colonial era, it is also relevant to note
that the Captaincies-General constituted the backbone of the military and
naval system. Cape Gracias a Dias was traditionally used as the limit
separating the jurisdiction of the Captaincy-General of Guatemala from
other Spanish Captaincies-General during the colonial period. The Rapport
de la Commission d'examen, mentioned above, includes many references to
documents issued by colonial military authorities and the Captain-General
of Guatemala, in which it is stated that Cape Gracias a Dios constituted the
limit of Honduras on the Atlantic Ocean and therefore, of the Captaincy
11
General of Guatemala. From this Rapport it is appropriate to point out
the following:
"Le Roi -principalement pour des raisons de surveillance et de
défense des côtes comprises dans le territoire appelé par les
Anglais «Spanish Main», c'est-à-dire les plages de l'Atlantique à
partir du Yucatanjusqu 'à1'isthmede Panama- ajugéde bon de
créer, par ce brevet royal [de 23 août 1745}, deux juridictions
militaires: l'une du Yucatan au cap de Gracias a Dias, et 1'autre
du cap de Gracias a Dias jusqu 'auRio Chagres, cette rivière non
comprise.
Dans la première juridiction étaient par conséquent comprises les
côtes de Guatemala, de la province du Honduras ou Comayagua à
partir du Rio Motaguajusqu'à Trujillo ou un peu plus à l'Est, et de
la Mairie supérieure de Tegucigalpa, quelle que fût l'étendue de
10
Para 2.3 supra.
Il Supra note 1pp 679 to 682. 75
ces côtes (qu'elle abati, d'après les déclarationsde Diez Navarro
lui-même),la limite Est de cettejuridiction militaire étantfixéeau
cap de Gracias a Dias.
Dans la seconde juridiction étaient comprises les côtes du
Nicaragua sur l'Atlantique, à partir du cap Gracias a Dias vers le
Sud, quelle que fût leur étendue, les côtes de Costa Rica et de
Veraguajusqu'au Rio Chagres.
Le colonel d'infanterie Juan de Vera fut nommépour la première
juridiction militaire; pour la seconde, on nomma le généralde
brigade Alonso de Heredia. Vera étaitnommégouverneur de la
province du Honduras. Heredia, gouverneur de la province du
Nicaragua.
Vera fut nommé commandant généraldes Armées royales de la
province du Honduras et celles de l'évêché de Comayagua, du
canton et du district de la Mairie supérieurede Tegucigalpa, ainsi
que de tous les territoires compris depuis l'endroit où prend fin la
juridiction du gouverneur et du capitaine généralde la province
de Yucatan,jusqu 'aucap de Gracias a Di os.
Heredia fut nommécommandant généraldes Armées royales du
Nicaragua, de laprovince de Costa Rica, du district du Realejo, et
des Mairies supérieures de Subtiara, Nicoya et de tous les autres
territoires compris entre le cap d12Gracias a Dios et de la rivière
Chagres, celle-ci non comprise."
ln other words, Cape Gracias a Dios also expressly constituted a limit
separating the areas of jurisdiction of the military authorities for the
exercise of their competences in the land and maritime areas for guarding
the coasts. This constitutes an important expression of the maritime uti
possidetis juris in the colonial period under Spain.
5.14. In even more specifie terms, the Royal Order of 23 August 1745
contains an express mandate of the Spanish monarch for the "préventionet
la répression du commerce illicite" (smuggling) which was carried out by
13
the English from sea to land. Moreover, the Royal Order of 23 August
1745 referred specifically to the "forces de terre et de mer" of the English
12 Ibid,pp 681-682, emphasis added.
13
Supra note 1,Annexe 53, p 382 to 384,Brevet Royal du 23 août 1745 nommant le
Colonel Juan de Vera Gouverneur et Commandant Généralde la Province du
Honduras et Commandant Généraldes Arméesde ladite Province du Honduras et de
celles comprises depuis 1"endroit au prend fin la jurisdiction du Gouverneur et
Capitaine Généralde la Province de Yucatanjusqu 'auCap de Gracias a Dias. 76
14
within his jurisdiction and the need to avoid illegal trade. The military
and smuggling activities of the English ships in the area- except in the
territories under direct domination - were invariably carried out using
warships, and it was the English navy which endangered the interests of the
Spanish crown in the Caribbean Sea. As a result, the Kings of Spain sought
to take steps in the maritime areas in which the enemy tleets were operating
when it came to setting the limits of the military jurisdictions. These steps
aimed to be effective not only on land but also at sea.
5.15. The exerèise ofSpanish authority in the maritime areas off the coast
is confirmed by other important, contemporaneous documents issued by the
King of Spain. Examples include the Royal Instructions of 3 January 17415
which refers expressly to the "guerre et au commerce illicite", and the
Royal Order of 3 January 1747, which refers to "la surveillance et la
suppression de commerce illicite", which had its greatest scenario in the
maritime sphere. 16
5.16. Against this background, the choice of Cape Gracias a Dios as the
limit between two civil and military jurisdictions indicates a point of
separation between maritime areas as weil as continental territories. It is
notable that Cape Gracias a Dios, like ali capes, projects towards the sea.
As stated in 1906: "le Monarque a choisi comme limite commune des
juridictions de Vera et de Heredia le cap de Gracias a Dios. Il s'agissait et
il s'agit encore d'un point trèssaillant, et qui se17le êtreplacépar la nature
elle-mêmepour servir de limite géographique."
5.17. The Royal Order of 20 November 1803, issued by the King of
Spain, provides further confirmation asto the role of Cape Gracias a Dios
as the limit - both maritime and continental - separating Nicaragua and
Honduras. The Royal Order was sent to the Viceroy of Santa Féand the
President of Guatemala just eighteen years before the declaration of
independence by the new Republics of Central America. lt states:
"Your Excellency: The King has resolved that the Islands of San
Andrés and the part of the Mosquito coast from Cape Gracias a
14 Supra note 1.Annexe 54, p 385 to 391, at p 386 and 388 (''éviterle commerce illicite'').
15
Supra note 1,Annexe 57.A, p 429 to 431, at 430, Instructions Royales du 3janvier 1747
au Maréchal Francisco Cagigal de la Vega, Capitaine Généraldu Guatemala,
décidant que Don Alonso de Heredia et Don Juan de Vera seraient placés sous ses
ordres et lui seraient subordonnés.
16
Supra note 1, Annexe 57.8, p 431 and 432, Brevet Royal du 3 janvier 1747
subordonnant le Colonel Juan de Vera au Maréchal Francisco Cagigal de la Vega,
Capitaine Généralde Guatemala.
17
Loc cilin note 46, p 683. 77
Dios inclusive to the Chagres river, shall be segregated from the
Captaincy-General of Guatemala and become dependent on the
Viceroyalty of Santa Fé,and it has pleased H.M. to grant the
Govemor of the said islands Mr. Tomas O'Neille a salary of two
thousand pieces of eight per annum, instead of the one thousand
two hundred he enjoys currently. 1 hereby inform Your
Excellency of the same by Royal Order so that the corresponding
orders from your office may be issued to comply with this
sovereign resolution. May the Lord save You18Excellency for
many years. San Lorenzo, 30 November 1803."
This Royal Order clearly expresses the will of the Spanish Crown to treat
Cape Gracias a Dios, in the early ]9th century and before independence, as
the limit between the Captaincies-General of Guatemala (including
Honduras) and that of Santa Fé(including Nicaragua) in the south.
5.18. The Royal Order of 20 November 1803 has other juridical
consequences. By this Order the King of Spain transferred jurisdiction
over the Archipelago of San Andrésand the Mosquito Coast (from Cape
Gracias a Dios to Chagres River) away from the Captaincy-General of
Guatemala and to the Viceroyalty of Santa Fe or Nueva Granada. This is
why Nicaragua and Colombia agreed in 1928, in application of the uti
possidetis juris, to put an end to reciprocal claims in the Barcenas Meneses
Esguerra Treaty.19 In accordance with its provisions, Colombia
relinquished its rights on the Mosquito Coast in exchange for Nicaraguan
recognition of its sovereignty on the Archipelago of San Andrés and
Providencia. Accordingly, Nicaragua's sovereign title on the Atlantic coast
was obtained through a cession from Colombia. Nicaragua thereby
succeeded Colombia in her sovereign rights on the Mosquito Coast, without
receiving more rights than those Colombia had in accordance with the uti
possidetis juris. Moreover, in 1930, and by a decision of the Nicaraguan
Congress, the limit of the meridian 82° between the sovereignties of both
States in the Caribbean Sea, was included in the Protocol of Exchange of
18
HCM, vol 2, annex 4. The text in Spanish reads as follows: "Excelentîsimo Sefior: El
Rey ha resuelto que las islas de San Andrésy la parte de la Costa de Mosquitos, desde
el Cabo de Gracias a Dios inclusive hacia Rîo Chagres, queden segregados de la
Capitanîa General de Guatemala y dependientes del Virreynato de Santa Fé,y se ha
servido S.M. concederal Gobernador de las expresadas islas don Tomas O'Neille el
sueldo de dos mil pesos fuertes anuales, en lugar de los mil y doscientos que
actualmente disfruta. Lo aviso a V.E. de real orden a fin de que por el Ministerio de su
cargo se expidan las que corresponden al cumplimiento de esta soberana resoluci6n, la
que traslado a. De orden de Su Majestad para su debido cumplimiento. Dios guarde a
V. muchos afios. San Lorenzo, 30 de noviembre de 1803."
19 Supra,para2.15;infra,paras 7.32-7.34. 78
Ratifications of the 1928 Treaty. On the basis of this app0oach Colombia
delimited its maritime areas with Honduras in 1986? It follows that
Nicaragua cannot have any right to claim a greater continental or insular
territory or maritime spaces than that granted by the treaty with Colombia,
since at the time of the colonial succession Nicaragua possessed no coast
on the Caribbean Sea, and hence could have no sovereignty over the
adjacent islands.
III. THE FUNCTION OF THE UT/ POSSIDETIS JURJS IN THE
PRESENT CASE: ESTABLISHMENT OF AN INITIAL LEGAL
TITLE
5.19. The uti possidetis juris is a legal title. As this Court has said, "the
concept of title may also, and more generally, comprehend both any
evidence which may establish the existence of a right, and the actual source
21
of that right". The first date of legal relevance in this dispute is 1821,
when both Parties achieved independence from their colonial status under
the Spanish Crown. On this date they succeeded Spain in the sovereignty
and jurisdiction over the islands and maritime areas it had previously
controlled. It follows that the original legal title of both Parties necessarily
dates back to this time. Honduras submits that the original and initial legal
title of both Parties is to be found in the uti possidetis juris, and that ali of
the events following 1821 confirm or continue the initial title in area north
ofparallel 15.
5.20. That title is particularly important in respect of the islands north of
the 15 h parallel. The application of the principle of uti possidetis juris to
islands adjacent to a coast was emphasised by the Chamber of the Court in
the Land, Island and Maritime Frontier Dispute Case (El
Salvador/Honduras: Nicaragua intervening), with regard to the disputed
islands in the Gulf of Fonseca. Four aspects of the decision require
comment.
5.21. First, the Chamber said that:
"The Chamber has no doubt that the starting-point for the
determination of sovereignty over the islands must be the uti
possidetis juris of 1821. The islands of the Golf of Fonseca were
discovered in 1522 by Spain, and remained under the sovereignty
20 Supra. paras 2.16-2.18; infra, paras 7.35-7.36.
21
Case concerning the Frontier Dispute (Burkina Faso!Republic of Mali), Judgment, ICJ
Reports 1986, p 564, para 18. 79
of the Spanish Crown for three centuries. When the Central
American States became independent in 1821, none of the islands
were terra nullius; sovereignty over the islands could not therefore
be acquired by occupation ofterritory. The matter was one of the
succession of the newly-independent States to ali former Spanish
islands in the Gulf. The Chamber will therefore consider whether
it is possible to establish the appurtenance in 1821 of each
disputed island to one or the other of the various administrative
units of the Spanish colonial structure in Central America. For
this purpose, it may have regard not only to legislative and
administrative texts of the colonial period, but also to 'colonial
effectivités' as defined by the Chamber in the Frontier Dispute
case (see paragraph 45 above)[.... ] It should be recalled that when
the principle of the uti possidetis juris is involved, thejus referred
to is not international law but the constitutional or administrative
law of the pre-independence sovereign, in this case Spanish
colonial law; and it is perfectly possible that that law itself gave no
clear and definite answer to the appurtenance of marginal areas, or
sparsely populated areas of minimal economie significance. For
this reason, it is particularly appropriate to examine the conduct of
the new States in relation to the islands during the period
immediately after independence. Claims then made, and the
reaction - or lack of reaction - to them may throw light on the
contemporary appreciation of what the situation in 1821 had been,
22
or should be taken to have been."
This passage perfectly expresses the position of Honduras in the present
case. As set out below, the legislative texts, administrative documents and
de facto colonial events, as weil as the conduct of the Parties during the
Republican period (i.e., immediately after the achievement of
independence) confirm the applicability of the uti possidetis juris to the
insular area now in dispute.
5.22. Second, with regard to the conduct of the parties after achieving
independence, the 1992 Judgment re-affirmed that:
"The Chamber must therefore proceed, as indicated in paragraph
333 above, to consider the conduct of the Parties in the period
following independence, as indicative of the then view of what
must have been the 1821 position. This may further be
supplemented by considerations independent of the uti possidetis
juris principle, in particular the possible significance of the same
22 Judgment of 11September 1992, ICJ Reports 1992, pp 558-559, para 333. 80
conduct, or the conduct of the Parties in more recent years, as
23
possibly constituting acquiescence."
5.23. Third, and with particular regard to the Central American context,
the Court recalled in its 1992 Judgment that:
"Shortly after independence in 1821, the newly independent
Central American States were united by the Constitution of 1824
in the Federal Republic of Central America, successor of Spain in
the sovereignty over, inter alia, the islands. Uninhabited or
sparsely inhabited, the islands were left dormant for sorne years,
since the economie value of their exploitation was little. The
problem oftheir appurtenance to one or other of the riparian States
thus did not raise any interest or inspire any dispute until the
break-up of the Federal Republic and the years nearing the mid
24
I9th century."
5.24. Finally, in order to underline the importance of the post-colonial
conduct of the Parties with regard to the island situation, in the case of a
Jack of decisive colonial documents, the Chamber of the Court concluded
that:
"Thus it was not until a number ofyears after the independence of
the two States that the question of the appurtenance of the islands
of the Gulf to the one or the other became significant import.
What then occurred appears to the Chamber to be highly material.
The islands were n9t terra nullius, and in legal theory each island
already appertained to one of the three States surrounding the Gulf
as heir to the appropriate part of the Spanish colonial possessions,
so that acquisition ofterritory by occupation was not possible; but
the effective possession by one of the Gulf States of any island of
the Gulf could constitute an effectivité,though a post-colonial one,
throwing light on the contemporary appreciation of the legal
situation. Possession backed by the exercise of sovereignty may
be taken as evidence confirming the uti possidetis juris title. The
Chamber does not find it necessary to decide whether such
possession could be recognized even in contradiction of such a
title, but in the case of the islands, where the historical material of
colonial times is confused and contradictory, and the accession to
independence was not immediately followed by unambiguous acts
of sovereignty, this is practically the only way in which the uti
23
Judgment of 11 September 1992, ICJ Reports 1992, p 563, para 341.
24 Ibid, p 565, para 346. 81
possidetis juriscould find formai expression so asto be judicially
recognized and determined." 25
In other words, the uti possidetis jurisimplies a legal title of sovereignty
over the islands that can be confirmed or corroborated by the reciprocal
conduct of the Parties after 1821. Such confirmation and corroboration is
amply demonstrated by the materia1presented in Chapter 6.
5.25. The relationship between the original tit1e derived from uti
possidetis and the subsequent practice of the parties is demonstrated by
another passage from the decision of the Chamber in 1992 concerning title
to islands in the Gulf of Fonseca. The Chamber held that:
"Thus the conclusion of the Chamber concerning Meanguera is
that, while the uti possidetis juris position in 1821 cannat be
satisfactorily ascertained on the basis of colonial titles and
effectivitésthe fact that El Salvador asserted a claim to the island
of Meanguera in 1854, and was thereafter in effective possession
and control of the island, justifies the conclusion that El Salvador
may be regarded as sovereign over the island. If there remained
any doubt, its position in respect of Meanguera is made definitive
by the acquiescence of Honduras in its exercise of sovereignty in
the island since the later years of the last century. As regards
Meanguerita the Chamber does not consider it possible, in the
absence of evidence on the point, that the legal position of that
island could have been other than identical with that of
Meanguera." 26
5.26. On the other hand, and ofparticular relevance for present purposes,
the Chamber of the Court concluded that:
"Under the final sentence of Article 26, the Chamber is however
entitled to consider bath the effective interpretation of the uti
possidetis juris by the Parties, in the years following
independence, as throwing light on the application of the principle
and the evidence of effective possession and control of an island
by one Party without protest by the other, as painting to
acquiescence. The evidence as to possession and control, and the
display and exercise of sovereignty, by Honduras over El Tigre
and by El Salvador over Meanguera (to which Meanguerita is an
appendage), coupled in each case with the attitude of the other
Party, clear1y shows however, in the view of the Chamber, that
25 Ibid, p 566, para 347.
26
Ibid, p 579, para 367. 82
Honduras was treated as having succeeded to Spanish sovereignty
over El Tigre, and El Salvador t27Spanish sovereignty over
Meanguera and Meanguerita."
5.27. The Chamber's 1992 Judgment is perfectly clear and definitive with
regard to the uti possidetis juris of the islands between two Central
American countries which have succeeded to the rights of the Spanish
Crown. The principle set forth in the Judgment encompasses islands which
are not terra nullius (or no man's land) and that are not located in an
isolated manner at great distances from the coast, but close or moderately
close to the coastline. The relevance of the Judgment for the present
proceedings is underscored by the fact that it applied to Meanguerita, which
was uninhabited and sustained no economie activity. In contrast, Savanna
Cay and South Cay are inhabited, Bobel Cay was previously inhabited, and
the islands collectively sustain - and have long sustained - important
fisheries activities regulated by Honduras. 28
5.28. The 1992 Judgment of the Chamber is of great significance to these
proceedings, by reason of the following points:
• the islands in the Gulf of Fonseca and north of parallel 15
belonged to the Spanish Crown immediately prior to the
emancipation of the colonies which took place in Central
America in 1821;
• these islands were not terra nullius, i.e. susceptible to
occupation;
• Spain's sovereignty over these islands was initially assumed
by the new independent republics (Honduras and El Salvador
in the 1992 case, and Honduras and Nicaragua in the present
case) and, from 1824, the Federal Republic of Central
America;
• the islands in question were not necessarily populated or
endowed with great economie activity or interest;
• the islands were not "isolated", i.e. located at a great distance
from any inhabited land but were close or moderately close
to the mainland coasts;
• there were no concurrent claims for sovereignty by third
parties over the same islands.
27
Ibid. p 579, para 368.
28 Infra, paras 6.52-6.54. 83
5.29. In the present case, as Chapter 6 demonstrates, there is no
discrepancy between the legal titles supporting the application of the
princip le of theutipossidetis and subsequent effectivités.In effect, there is
a legal title favourable to Honduras over the mainland and island coasts
located to the north of the 15 harallel based on the uti possidetis jurisof
1821, and another benefiting Nicaragua over the mainland and island coasts
located to the south of it. The post-colonial effectivitéscoïncide perfectly
with this original title, and merely confirm it.
5.30. It is also clear that there has never been and there is not now any
evidence of Nicaraguan effectivitésto the north of parallel 15, whether on
the mainland coasts or islands, or over the adjacent maritime areas.
Consequently, if the legal title and theeffectivitéscoïncide for the benefit of
Honduras, the present claims by Nicaragua to the north of Cape Gracias a
Dios cannot be legallyjustified. There is nothing in the law which supports
Nicaragua's claim regarding the coasts or maritime areas located north of
parallel 15.
5.31. Indeed, it is pertinent to note that in the present case Nicaragua
makes no claim based on uti possidetis jurisin respect of the islands or
maritime areas to the north of the 15th parallel. By contrast, in her
Application of 6 December 2001 before the Court, instituting proceedings
against Colombia, Nicaragua makes much of the principle of uti possidetis
(even though the Application is historically misrepresentative by omitting
any reference to the Royal Order of 1803 and its consequences for the
colonial succession). The Application in that case states that:
"The remedies sought by Nicaragua relate, in the first place, to the
questions oftitle to certain islands in the western Caribbean.
In 1821, date of Independence from Spain, the Provinces that
formed the Captaincy General of Guatemala became the
Federation of Central American States and sovereignty over ali
islands appurtenant to this territory devolved on the newly
independent States by virtue of an original title in the Colonial era,
confirmed by the principle of uti possidetis juris. The group of
islands and keys of San Andres and Providencia pertain to those
groups of islands and keys that in 1821 became part of the newly
formed Federation of Central American States and, after the
dissolution of the Federation in 1838, these islands and keys came
to be part of the sovereign territory of Nicaragua. In connection
with the issue of title [... ]".
5.32. For present purposes this passage is significant for severa] reasons.
First, Nicaragua accepts the application of the uti possidetis juris in its
insular and maritime dimension. Second, the Spanish islands and cays in 84
the Caribbean Sea were transferred after 1821 to the Federation of Central
American States orto Colombia, which implies, for our purposes, that they
were Honduran, Nicaraguan or Colombian after the dissolution of the
mentioned Federation. Third, the Spanish General-Captaincies had precise
limits, for their insular and maritime competences. And fourth, the cited
principle had a projection from the continental mass in a West-East
direction (towards San Andrés and Providencia), the same indicated by
Cape Gracias a Dias and the traditional !5thparallel.
5.33. Consequently, Honduras maintains that it hasan original title to the
islands north of the !5thparallel on the basis of uti possidetis juris.
5.34. With regard to the maritime spaces themselves, in 1821 the Spanish
Crown held territorial waters along ali its coasts, whether metropolitan or
colonial, and these measured 6 nautical miles since 1768. Therefore, the
new Republics of the Americas succeeded not only to Spain's sovereignty
over the territory but also to that over the territorial waters, with a breadth
that they were free to maintain or vary, as they wished. The subsequent
evolution of the law of the sea, however, explains the emergence of new
maritime areas of differing breadth, where the coastal countries also held
different competences. These areas were already partially considered in the
1948 Constitution ofNicaragua and in the 1957 Constitution ofHonduras. 29
5.35. As a result of the then unforeseeable expansions of national
maritime areas, the uti possidetis juris of 1821 takes on the character of an
initial title that is in itself insufficient to explain its application in extenso to
areas such as the continental shelf or the exclusive economie zone, ali the
more so when the 1982 UN Convention on the Law of the Sea generally
allows these areas to extend to 200 nautical miles measured from the
baseline. Hence on this point, it becomes a necessity, due to the
insufficiency of the application of the uti possidetis juris, to confirm the
initial legal title, its continuity and its subsequent space extension over the
maritime areas on the foundation of postcolonial or republican Honduran
effectivités. Therefore, the maritime effectivités here are significant in
explaining how the original title, initially applicable to land, islands and
their territorial waters, extended in the course of the middle of the 20th
century towards these new emerging areas, by means of the practice and
reciprocal conduct of bath countries, mainly by their respective
constitutional and domestic legislations. 30
29
NM, p 28. paras 22 and 23.
30 As we are reininded in the NM. p 28, paras 21, 22 and 23. 85
5.36. Chapter 6 provides a detailed analysi1 of the Honduran effectivités
over the maritime areas north of the 15 para1hel. lt demonstrates the
effective control that Honduras has traditionally exercised over these
waters, and shows also the absence of any concurrent claim or activity by
Nicaragua for more than a century and a half, until 1979/1980. Indeed,
from 1821 to 1979/1980 there has never been any maritime dispute
between these countries, much less an insular dispute. Nor was there ever
any problem with third party countries, as indicated by the 1986 treaty
delimiting the borders between Honduras and Colombia. lt only remains to
be asked what are the legal consequences of such conduct with regard to
the maritime areas now the subject ofthese proceedings.
5.37. The delimitation of the exclusive economie zone and the
continental shelf between States with adjacent coasts "will be effected by
agreement between the Parties on the basis of international law, as referred
to in Article 38 of the Statute ofthe International Court of Justice, in order
to reach an equitable solution", pursuant to Articles 74 and 83, respectively,
of the 1982 U.N. Convention on the Law of the Sea. For present purposes
two points must be highlighted. First, the aforementioned rules of the law
of the sea require "agreement" and not a treaty. Such agreement may be
manifested in the form of reciprocal conduct which may show the existence
of acquiescence or sorne other form of tacit consent, capable of generating
and/or modifying rights and obligations between the parties. Second, it
must be reca11edthat a Chamber of this Court has stated that the uti
possidetis juris is "a firmly established principle of international law where
decolonisation is concerned" 31and "a principle of customary international
32
law" or "a rule of general scope", and that it is 33mong the most
important legal princip les" and "classic principles" . Therefore, this
principle is the basis of the agreement referred to in Articles 74 and 83 of
the 1982 Convention on the Law of the Sea.
31
ICJ Reports 1986, p 565, para 20.
32
33 Ibid, p 565, para 21.
Ibid, p 567, para 26. 86
IV. CONCLUSION
5.38. ln summary, the principle uti possidetis juris is legally significant
for these proceedings because:
(1) it applies to both land and maritime areas;
(2) it is the basis of Honduran title to the territorial sea and the
seabed thereofnorth ofthe 15th parallel;
(3) it establishes the basisof initial title to the islands, which, in
their turn, are entitled to their own territorial sea and seabed
thereof, continental shelf and Exclusive Economie Zone; and
(4) it gives rise to a presumption of Honduran title to the
continental shelf and EEZ north of the !5th parallel.
Nicaragua has not invoked the application of the principle to support its
claim against Honduras. The historical material available provides no
support for any such claim by Nicaragua. Honduras' initial legal title is
fully consistent with it subsequent peaceful and effective control over the
areas north of the 15thparallel. These effectivités confirm Honduras' title,
and Honduras' sovereign rights and jurisdiction north of the )5th parallel
and Nicaragua's sovereign rights and jurisdiction south of the 15thparallel.
These effectivitésare addressed in Chapter 6. CHAPTER6
EFFECTIVITÉS AND THE EXERCISE OF HONDURAN
SOVEREIGNTY AND JURISDICTION OVER THE ISLANDS
AND SURROUNDING WATERS NORTH OF THE 15™
PARALLEL
I. INTRODUCTION
6.1. In its Memorial Nicaragua makes a claim to the waters and "ali
1 1
islets and rocks" in the disputed area north of the 15 parallel (14°59.8').
The claim is significant in a number of respects (not Jeast for the way in
which it appears almost as an afterthought in the Memorial, being presented
in an unnumbered paragraph on the final page of the Memorial,
immediately before the Submissions). First, the Memorial constitutes the
only time that Nicaragua has ever made a formai claim to ali ofthese "islets
and rocks", which have not figured on official maps of Nicaragua,
notwithstanding the fact that1Nicaragua must have known oftheir existence
since the middle of the 19 h century. Second, Nicaragua provides no
evidence whatsoever in its Memorial to support its claim or any part of it.
Third, the claim fails to recognise that the "islets and rocks" in question
include a number of islands which sustain human habitation (by Honduran
nationals and nationals of third States duly authorised by Honduras to live
on the islands) and which provide the focal point for well-established
fisheries activities which have been long-regulated by Honduras. And
fourth, the Nicaraguan claim makes no effort whatsoever to address the fact
that Honduras has long exercised full and effective sovereignty over the
islands and jurisdiction over surrounding waters, which sovereignty has
been recognised by third States.
The islets, rocks, reefs and cays claimed by Nicaragua are stated to include, but not be
limited to: Hall Rock, South Cay, Arrecife Alargado, Bobel Cay, Port Royal Cay,
Porpoise Cay, Savanna Cay, Savanna Reefs, Cayo Media Luna, Burn Cay, Logwood
Cay, Cock Rock, Arrecifese la Media Luna, and Cayo Serranilla: see NM, p 166
(paragraph not numbered), and p 9, para 15. Note that "Cayo Serraniiia" is actually a
bank.
2 The only argument madeby Nicaragua- unsupported by evidence - is that "[t]hese
reefs and cays have traditionally been used as resting and fishing places by the 1ndian
Communities in the area, in particular by the Sambo Miskito 1ndians of the Miskito
Coast ofNicaragua": NM, p 9, para 88
6.2. In this Chapter Honduras demonstrates its historical, uninterrupted
and unchallenged exercise of sovereignty and jurisdiction over the islands
and waters which lie north of the 15thparallel. There can be no doubt that
Honduras now displays - and has always displayed - power and authority
over the islands through the exercise of jurisdiction and state functions.
This is not a case, such as the situation described by the Arbitral Tribunal in
the dispute between Eritrea and Yemen, of a "chequered and frequently
changing situation in which the fortunes and interests of the Parties
3
constantly ebb and flow with the passage of the years". Honduras'
exercise of jurisdiction and state functions has been continuous and
uninterrupted and, until the change of Government in Nicaragua in 1979,
peaceful.
6.3. ln its Memorial Nicaragua has provided no evidence of the exercise
by it of jurisdiction or State functions in respect of any of the areas,
including the islands, which it now claims. Nicaragua is asking the Court
to delimit a maritime boundary in disregard of the facts. The evidence of
Honduran sovereignty and jurisdiction, including its recognition by third
States (including Nicaragua), is substantial, as the material set out in this
Counter-Memorial indicates. Nicaragua has provided no material to
challenge that evidence.
6.4. The object of this Chapter is not to prove Honduran title to the
islands, but rather to demonstrate that the maritime boundary proposed by
Nicaragua is inconsistent with Honduras' continuous and peaceful exercise
of sovereignty and jurisdiction over the islands, cays, reefs, banks and
maritime areas north of the !5thparallel. That exercise of sovereignty and
jurisdiction constitutes a relevant factor of prime importance for the
purposes of delimiting the boundary - if not the most important relevant
factor.4 The evidence tendered by Honduras confinns what has previously
been recognised by both Parties to these proceedings (in the case of
Nicaragua until 1980) as weil as by third States, international organisations
and corporations and other private actors, namely that the !5th parallel
Award of the Arbitration Tribunal 9 October 1998 in the Eritrea-Yemen Arbitration,
para 456. With regard to the standard to be applied the Arbitration Tribunal stated:
""Themodem international law of the acquisition (or attribution) of territory generally
requires that there be: an intentional display of power and authority over the territory,
by the exercise of jurisdiction and state funetions, on a continuo us and peaceful basis"
(Award, para 239). http://www.pca-cpa.org/RPC/ch7ER-4E.htm and http://www.pca
cpa.org/RPC/CH 1OER-4E.htm.
4
Infra para 7.15, et seq. 89
constitutes, and has long constituted, the maritime boundary between
5
Honduras and Nicaragua.
6.5. The geographical and historical context of the present case was
described in Chapters 2 and 3 of this Counter-Memorial. The present
Chapter describes the evidence which confirms Honduran sovereignty and
jurisdiction over the islands and waters north of the 15 1h parallel in more
recent times, in particular by reference to fisheries and oil and gas activities
authorised by Honduras, às weil as other indicators of State and State
supported activity which is typically associated with the exercise of
sovereignty and j urisdiction. Honduras considers that each element of this
evidence, taken atone would be sufficient to establish sovereignty; taken
together the cumulative evidence presents an overwhelming expression of
Jong-established Honduran sovereignty and jurisdiction which Nicaragua
cannot- and has not sought to - displace.
II. THE INDICIA OF HONDURAN EXERCISE OF SOVEREIGNTY
6.6. As set out above in Chapters 3 and 5 Honduras submits that there
exists a continuum between its acquisition of initial title in 1821 and the
subsequent exercise by it of sovereignty over the areas now claimed by
Nicaragua. Honduras' effective administration of the area (including the
islands and cays) is additional to the uti possidetis juris, and accordingly
the role of effectivités serves to confirm the exercise of the right derived
6
from its legal title. But even if this is a case in which legal title is not
capable of showing exactly the territorial expanse to which it relates, the
International Court has recognised that "effectivités can then play an
7
essential role in showing how the title is interpreted in practice".
6.7. In this case the evidence of the exercise by Honduras of sovereignty
111
over the islands and the surrounding waters north of the 15 parallel is
compelling, and it is longstanding. By contrast Nicaragua has never
exercised effective control over the area it now claims or any part of it.
The factual situation confirming Honduran effectivités is succinctly
summarized in the deposition of a Honduran fisherman who has been
fishing around the cays for more than forty years:
"Ali my !ife 1have been at sea, steering a fishing vessel. l have
been coming to this area (Savanna Cay) during approximately 40
See infra paras 6.68 to 6.75.
6
Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986, p 554 at 587.
7 Ibid. 90
years. 1have 40 years persona! experience in this area. The first
island that 1 visited here was Bobet Cay, followed by the other
islands, such as Savanna Cay, Port Royal Cay, South Cay. When 1
first came here 40 years ago, 1leamt that north of Parallel 15 was
Honduras. The Nicaraguan waters commence south ofParallel15.
That is what Christopher Columbus left us - parallel 15 as the
divisional border between Honduras and Nicaragua. Thus
everything that is found north of Parallel 15, including ali the
islands, belongs to Honduras, as the whole fishing community
knows. The eiders in the fishing community have always told us
that this is Honduras. EveryboC:ythat 1know have always told me
that these islands belong to Honduras, and nobody knows any
other different sovereignty. Likewise, my parents, who also
formed part of the fishing community, knew that these islands
belong to·Honduras. 1 have never had any contact with the
Nicaraguan fishermen or Nicaraguan authorities. The only
occasions that 1went south of Parallel 15 was to fish lobster, and 1
rapidly retumed north. 1 have never seen a Nicaraguan patrol
vesse! in this area, except once, about 15 or 16 years ago when 1
saw one along the length of the beach in Raya." 8
111
6.8. Honduras' effective administration of the area north of the 15
parallel is reflected in the long-standing application and enforcement of its
laws and regulations and the regulation of economie activities in the area
(principally oil and gas exploitation and fisheries activities). Specifically
within the area Honduras:
• exercises administrative control over, and applies Honduran
public and administrative legislation and laws (Section A)
(paras 6.9 to 6.17);
• applies and enforces its criminal and civil laws in the area
(Section B) (paras 6.18 to 6.23);
• regulates the exploration and exploitation of oit and gas
activities (SectionC) (paras 6.24 to 6.28);
• regulates fisheries activities (Section D) (paras 6.29 to 6.50);
• regulates immigration (Section E) (paras 6.51 to 6.59);
• carries out military and naval patrols and search and rescue
operations (Section F) (paras 6.60 to 6.63); and
8 Statement of Selvin McKenlly Johnson, HCM, vol 2, annex 68. 91
• engages in public works and scientific surveys in the area
(Section G) (paras 6.64 to 6.67).
Moreover, States and other third parties (including Nicaragua) have long
recognised or not objected to Honduran sovereignty and jurisdiction over
the area north ofparallel 15((Section H), paras 6.68 to 6.75), and Honduras
has consistently objected to any claims which have been recently asserted
by Nicaragua to the area north of parallel 15((Section 1),para 6.76).
A. HONDURAS EXERCISES ADMINISTRATIVE CONTROL ÜVER,
AND APPLIES HONDURAN PUBLIC AND ADMINISTRATIVE
LEGISLATION AND LA WS TO THE AREA
6.9. The islands and maritime area now claimed by Nicaragua have long
been treated by Honduras as falling within its territory and being subject to
its legislative, regulatory and other administrative control. As described in
1
Chapter 3, above, official maps of Honduras dating back to the later l9 h
and early 20 century show inter alia Bobel Cay, Savanna Cay and South
Cay as part of the territory of Honduras. 9 The area falls within the
Department of Gracias a Dios, one ofthe departments into which Honduras
is divided for administrative purposes (see Plate 10). The administrative
laws and provisions of the Department of Gracias a Dios apply to aHof the
islands and cays and to a<:tivitiescarried out in and around them, in all
areas claimed by Nicaragua. The Honduran Constitution (Article 340) and
the General Law on Administration are applicable and have been and are
applied to the islands and cays and the surrounding waters, including the
10
fishing banks.
6.1O. As described in further detail below, economie activities on and
around the islands have long been regulated by Honduras, particularly in
relation to fisheries and the exploration for and exploitation of oil and gas. 11
Article 5 of the Law of 1927 on the Use ofNational Waters confirrned the
State's ownership of "islands and cays already forrned and that are formed
12
in the maritime zone", and that provision has long been recognised as
encompassing Bobel Cay, South Cay, Port Royal Cay, and Savanna Cay.
In relation to exploitation of oil and gas, Articles 619 and 621 of the Civil
Code (as amended in 1950) is applicable to the area, and recognises the
9
Supra, paras 3.58 to 3.59.
10
See infra para 6.15.
Il See infra paras 6.24 to 6.28 and 6.29 to 6.50.
12
Decree No. 137 of9 April 1927, Gazette No. 7375 of 3 August 1927. 92
ownership by the State of "ali natural wealth that exists or can exist in its
submarine continental shelf and insular zones" over which Honduras has
sovereignty. 13 Also applicable to activities in the area are the Petroleum
14 15 16
Law of 1962, the Mining Code of 1968, the Hydrocarbon Law of 1984
and the General Law of Mining of 1998. 17 Fisheries activities in the area
18
are govemed by the Fishing Law of 1959, which provides inter alia for
the grant of licences, including in and around the area now claimed by
Nicaragua. In 1980 Honduras adopted a Law on the Exploitation of the
Natural Resources of the Sea. 19 This proclaimed an Exclusive Economie
Zone in addition to rights claimed in relation to the territorial sea and the
continental shelf, and confirmed Honduran legislative, regulatory and
administrative jurisdiction over that zone. Moreover, as described in detail
in the following sections, Honduran immigration laws are also applied to
the area (see below at paras 6.51 to 6.58), as are Honduran fisheries laws
(see below at paras 6.29 to 6.SO). Honduran administrative laws have also
long been applied, including in respect of matters pertaining to customs and
maritime requirements. And, pursuant to Honduran employment laws,
work permits have been granted to Honduran and foreign nationals,
including Nicaraguan nationals, to fish around the islands north of the !5th
20
parallel, including Savanna Cay.
6.11. Honduran customs laws are being- and have long been- applied to
the islands and waters north of the !5th parallel. The current Customs
Supervisor for the Department of Gracias a Dias describes the manner in
which his office issues permits allowing Honduran and Jamaican citizens to
export (to Jamaica and elsewhere outside Honduras) fish which have been
caught in the fisheries grounds around inter alia South Cay, Babel Cay and
21
Savanna Cay. He confirms from his own knowledge that "this type of
exports have been made since 1970". 22 The Customs Supervisor further
13 Arts. 619 and 621 of the Civil Code were amended by Decree No. 104 of 7 March
1950, Gazette No. 145055 of 16 March 1950.
14 Decree No. 4, 25 October 1962, Gazette No. 17836, 17837 and 17838 of 27, 28 and 29
November 1962.
15 Decree No. 143, 26 October 1968, Gazette No. 20118, 20119, and 20120 of 8, 9 and 10
July 1970.
16
Decree No. 194-84, 25 October 1984, Gazette No. 24557 of28 February 1985.
17
Decree 292-98, 30 Novernber 1998, Gazette No. 28785 of 6 February 1999.
18 Dccree No. 154 of 19 May 1959, Gazette No. 16807 of 17 June 1959.
19
Decree No. 921,28 April 1980, Gazette No. 23127 of 13 June 1980.
20
Sec infra, paras 6.53 and 6.54.
21 Sec Statement ofMr Eugenio Chirinos Mejia, HCM, vol 2, annex 69.
22
Ibid. 93
confirms that Honduran fisheries "exports have been taking place since
1940". 23
6.12. In his deposition the Port Supervisor of Puerto Lempira explains the
system for the registration of motor boats which are used for fishing in and
around the islands:
"concerning the motorboats of the persons who operate in the
Cays, sorne of them have come in person to the Port in order to
register them but in other occasions they have had to go to the
cays to register them; most of these traditional fishing vessels are
registered at the Port's Authority; the registration of these vessels
is just for one year and then is subject to renewal; in order to
register those motorboats in question an import Iicense is required
when they are manufac:tured abroad; he also represents that in the
visits made to the Cays he has not found any occupants with
permits or documents from Nicaragua as they have always
acknowledged the jurisdiction of Honduras; these fishermen from
the Cays carry out their activity in the nearby fishing banks of the
24
Cays known as Savanna, Bobel, Gorda Cay and South Cay".
6.13. Individuals resident on Savanna Cay (and the other islands) are aIso
required to register their motor boats. The annexes to this Counter
Memorial include examples ofmotor boat registration documents requested
by and granted to residents of Savanna Cay, including confirmation of
payment of registration fees and taxes (in relation to imports). These are
directed to or originate from the Direcci6n General de la Marina Mercante
of the Republic of Honduras and apply to boats brought in by Jamaicans
who are living on Savanna Cay? 5
6.14. Similarly, the Mayor of the Municipality of Ramon Villeda
Morales, who is responsible for the collection of municipal taxes, confirms
that taxes are payable in respect of economie activities carried out on the
islands and cays north of the l5 1h paraIlel (even if they are not always
26
paid!). Relatedly, the Municipality of Puerto Lempira has taken steps to
23
Ibid.
24 See Statement ofFabüin Flores Ramirez, HCM, vol2, annex 73
25
See e.g. Application for Renewal ofRegistration of a Small Vesse! N.V-244, Submitted
on 21 Ju1y1997 to the Gem:ra1Directorate ofthe Merchant Marine of Honduras by Mr.
Donald Moxan, a Resident of Savanna Cay, HCM, vol 2, annex 128; Application for
Registrationof a Small Vesse! N.V-310, Submitted on 26 March 1997 to the General
Directorateof the Merchant Marine of Honduras by Mr. Victor V. Vasell, a Resident of
Savanna Cay, HCM, vol 2, annex 127.
26
Statement of Santos Calderon Morales, HCM, vol 2, annex 78. 94
ensure that the buildings which have been constructed on Savanna Cay are
"ali numbered and registered with the municipality at Puerto Lempira". 27
According to an official report of the Directorate General on Population, by
1999 a total of 38 buildings had been identified in Savanna Cay, South Cay,
Gorda Cay and Port Royal Cay. 28
6.15. Honduran fisheries conservation laws apply to the waters
immediately north of the 15 parallel. For example, a Resolution adopted
in 2000 by the Ministry of Agriculture and Livestock and the Directorate
General on Fisheries, provides that "ali fishing boats that fish north of the
111
15 parallel up to the limit of Honduras' maritime jurisdicti29 shall be
decommissioned and their fishing licences suspended". The Resolution
includes a map which clearly shows that the Resolution shall apply to the
waters around the cays, as weil as the fishing banks in the area. The
Resolution extends an earlier resolution dating back to 1999, and is based
on Article 340 of the Honduran Constitution, Article 116 of the General
Law on Administration, and Article 43 ofthe Law ofFisheries.
6.16. By contrast, Nicaragua has provided no evidence to the
International Court of Justice which indicates that before 1980 it treated the
area it now daims as being subject to its sovereignty and jurisdiction. And
even after 1980 the claim comprises nothing more than a general assertion
of entitlement which is unsupported by any evidence. Nicaragua considers
it unnecessary to provide any maps - whether historical or otherwise -
showing the islands and maritime space as falling within its territorial
sovereignty, or any laws- whether criminal, civil, administrative or other
which purport to be applicable to persons on, or activities Iocated in, those
islands or areas. No evidence is before the Court to show that any
Nicaraguan laws - customs, immigration, fisheries, municipal or other
have ever been applied to the islands and maritime spaces. Moreover,
Nicaragua has provided no evidence to indicate that, prior to the mid-
1990's, it ever objected to the publication of official Honduran maps
showing the islands and the maritime area as being a part of Honduras. Nor
has it provided any evidence that it has ever objected to the prescription and
27
See Statement of Maurice Gowe, HCM, vol 2, annex 67. He goes on to explain:
'"Ali these houses are enumerated and registered in the municipality of Puerto
Lempira. The municipality enumerated them approximately two years ago, given
that the fishing official wanted to know how many people live in the cay."
See also Statement ofEverton Anthony, HCM, vol2. annex 66.
28
Note DG Addressed by the Director of Population And Migratory Policy of Honduras
to the Vice-Minister of Foreign Af1àirson 30 November 1999, HCM, vol 2, annex 148.
29
Annex "E" Resolution N.06-2000 to Operations Order N.21-2000, HCM, vol2, annex
142. 95
application by Honduras of its fisheries, immigration, customs, municipal
or other laws, whether civil or criminallaws, to the area in question.
6.17. To the contrary, as described below Nicaragua's practice confirms
1
that the area north of the 15 parallel is properly to be treated as part of
Honduras. Examples of sw;h practice may be found in Nicaraguan ail and
1
gas concessions (which treat the 15 pa30llel as the boundary and northem
limit of Nicaraguan contin shelt) natnda lhe policing by Nicaragua of
fisheries activities in its waters (see, for example, the practice of
Nicaraguan coastguards of escorting Honduran ships alleged to be fishing
illegally up to the 15 parallel where they are theo released). 31 Nicaraguan
environmental and conservation laws applicable to maritime areas (for
example establishing biological reserves) apply to the areas south of the
1 32
15 parallel; there is no evidence before the Court than any such laws
have been applied north of the l5 1h parallel. Similarly, a 1999 report
prepared by the Ministry of Environment and Natural Resources of
Nicaragua relating to the management of coastal areas in Nicaragua
includes a Govemment-prepared map (dated 1997) showing the
delimitation and zoning of coastal zones in Nicaragua's Atlantic coast: the
map shows that the northemmost limit of Nicaraguan insular and coastal
1
interests lies south of the 15 h parallel, and does not include any of the
islands and cays now claimed by Nicaragua. 33
8. HONDURAS APPLIES AND ENFORCES ITS CRIMINAL AND CIVIL
LA WS IN THE AREA NORTH OF PARALLEL 15
6.18. The civil and criminal laws of Honduras have been applied to- and
enforced in - the area, including the islands, in a continuous and
uninterrupted manner for many decades.
30
See infra para 6.24 et seq.
31
See Statement of Bob Ward McNab Bodden, HCM, vol2, annex 86:
"[... ] he remembers an incident last year when he had a problem with a fishing
boatof Mr. Henry Jackson registered in Nicaragua which he brought to Honduras
in arder to have it repaired in French Harbor; the boat was being tugged together
with a recreationalboalt with an Honduran flag and he was escorted by a
Nicaraguan patrol from Puerto Cabezas until the reachedallel 15° when the
patrol retumed."
32 See e.g. Nicaraguan Declaration of the Marine Biological Reserve "Cayos Miskitos y
Franja Castera Inmediata". Decree N.43-91of 31 October 1991, Published in the
Official Gazette Nicaragua N.207 of 4 November 1991, HCM, vol 2, annex 164.
33 Project for Improving the Capacity to Organize the Natural Resources of the Caribbean
Coast CEPNET/BID. Ministry of Environment and Natural Resources of Nicaragua
(MARENA) and UNEP- CEP/RCU, 1999, HCM, vol2, annex 165. 96
6.19. Beyond the application of laws and regulations relating to fisheries,
oil and gas activities and the environment, there is also extensive evidence
of the applications of general civil and criminallaws to the area, including
34
for example South Cay. Accidents in the area have long been - and
continue to be - systematically reported to authorities in Puerto Lempira
35
and elsewhere in Honduras, not in Nicaragua.
(1) Criminal Law
6.20. Generally, Honduran criminal law has been applied to criminal acts
occurring on the islands and cays. For example, a 1996 case involved the
theft of diving tanks on South Cay. The Honduran Court of First Instance
(Juzgado de Letras Departamental) in Puerto Lempira tookjurisdiction over
the case and initiated and carried out a formai investigation, including the
calling of witnesses. 36 Other cases have involved the theft of an abandoned
7
boat which was found on Savanna Cal and assault and theft in relation to
a dispute over ownership of a boat around Savanna and Bobel cays. 38
6.21. More specifically, Honduras has long prescribed and applied its
drug laws in the area, in collaboration with other States, in particular the
United States. For example, a 1993 Project by the Honduran authorities
(involving the Public Security Force, the Air Force and the Navy) targeted
narco-production and trafficking activity in the territory of Honduras. The
Project, known as Plan de Operaciones "Satélite", was carried out jointly
with the United States Drug Enforcement Administration. The Project
document refers expressly to inter alia South Cay, Bobe1Cay and Savanna
Cay as falling within the scope of the activity. 39
34 See Statement of Fabian Flores Ramirez, Port Supervisor, on enforcement of fisheries
laws and of criminallaw, HCM, vol 2, annex 73.
35 Statementof Edgar Henry Haylock Arrechevala, HCM, vol2. annex 74.
36
Criminal Complaint (File no. 245-96): Order lssued by the Lower Court of Puerto
Lempira, Department of Gracias a Dios on 1 April 1996. (Complaint Brought against
Mr. Silvano Teleth Lucan and Mr. Antonio Pita), HCM, vol2, annex 104.
37
Application Concerning the Finding of a Motor Vesse! (File no. 2302-97);
Communication lssued by the Lower Court of Puerto Lempira, Department of Gracias a
Dios on 7 April 1997. (Application brought byr. Pleny Gibson Hyde), HCM, vol 2,
annex 105.
38 See witness statements taken by the judge in Puerto Lempira on 17 August 1998. and 8
and 16 October 1998, HCM, vol2, annex 106.
39
"Satellite Operations Plan", 1993, HCM, vol 2, annex 156. 97
(2) Civil Law
6.22. Where accidents have occurred on and around the cays and banks,
usually involving divers, Honduran tort laws arising out of labour contracts
has applied. There are numerous decisions of local Honduran courts which
make awards of compensation. In these cases accidents taking place in and
around the cays are treated as occurring in Honduras. For example, in June
1990 Arnulfo Briones Martinez Sambola was diving for marine snails in
Middle Bank when he got divers "bends" and permanently !ost the use of
his legs. He claimed and obtained from the local court an order freezing
the assets of the ship-owner who had employed him, and subsequently was
40
awarded compensation under the Honduran Labour Code. Other cases
have involved similar accidents at Middle Bank, 41 Rosalind Bank 42and at
43
fishing bank "Tres-Nueve'", both treated by Honduran courts as being
located within Honduran territory.
6.23. By contrast, Nicaragua has provided no evidence to the
International Court of Justice which indicates that Nicaraguan civil or
criminal laws are intended to apply in the area, or that they have been
enforced in the area.
40
HCM, vol2, annex 101.
41 Labour Complaint (File no. 4-91) before the Lower Court of Labour of Puerto Lempira,
Department of Gracias a Dios (Submitted by Mr. Bertin Williams G6mez), regarding
accidentin Middle Bank, HCM, vol 2, annex 100.
42 See e.g. Labour Complaint (File no. 13): Attestation by the Lower Court of Labour of
Puerto Lempira, Department of Gracias a Dios issued on 13 February 1992 (Case of
Mr. Medina Websta Andares), HCM, vol 2, annex 102. See also Labour Complaint
(File no. 238) before the Lower Court of Labour of Roatan, Bay Islands (Submitted by
Rubio Maly G6mez on 13 December 1993), Document 6-01 deposited with the
Registry.
43
See e.g. Excerpt from a Labour Complaint (File no. 16.295) before the Lower Court
Labour of Puerto Lempira, Department of Gracias a Dios (Submitted by Moisés
Leonardo Tomson), Document 6-02 deposited with the Registry; Excerpt from a
Labour Complaint (File no. 16.297) before the Lower Court of Labour of Puerto
Lempira, Department of Gracias a Dios (Submitted by Erasmo Granuel Diaz),
Document 6-03 deposited with the Registry; Excerpt from a Labour Complaint (File no.
14) before the Lower Court of Labour of Puerto Lempira, Department of Gracias a Dios
(Submitted by Marvin Trapp), Document 6-04 deposited with the Registry; Excerpt
from a Labour Complaint (File no. Il) before the Lower Court of Labour of Puerto
Lempira, Department of Gracias a Dios (Submitted by Delio Reyes Deveth), Document
6-05 deposited with the Registry; Excerpt from a Labour Complaint (File no. 266-94)
before the Lower Court of Labour of Roatan, Bay Islands (Submitted by Eliseo Sierra
Alvarez, on 3 February 1994), Document 6-06 deposited with the Registry; Excerpt
from a Labour Complaint (File no. 2351-97) before the Lower Court of Labour of
Puerto Lempira, Department of Gracias a Dios (Submitted by Walterio MéndezGreen),
Document 6-07 deposited with the Registry. 98
C. HONDURAS REGULA TES THE EXPLORATION AND EXPLOIT ATION OF
ÜIL AND GAS ACTIVITIES IN THE AREA
6.24. Honduras and Nicaragua have long treated the 15th parallel
(14°59.8') as, respectively, the southern and northern boundaries of their
national territory for the purpose of licensing activities related to the
exploration for, and the exploitation of, oil and gas. This limit has also
been systematically recognised by professionals in the field, most
particularly by specialised journals and handbooks. Examples of the
1
numerous diagrams and maps clearly identifying the 15 parallel ah the
limit for Honduran and Nicaraguan oil development concessions are set out
44
in the Annexes to the Counter-Memorial.
6.25. The evidence comprises three sets of practices. First, concessions
1
granted by Honduras which treat the 15 parallel as the southern boundary
of Honduras. Secondly, concessions granted by Nicaragua which treat the
111
15 parallel as the northernmost boundary of Nicaragua. Thirdly,
concessions granted jointly by Honduras and Nicaragua, in relation to
111
potentially straddling oil and gas fields, which treat the 15 parallel as the
boundary between the two States.
6.26. Honduras granted a series of oil concessions for the exploration
and/or exploitation of oil and gas within the territory of Honduras, in the
1 45
area north of the 15 harallel (Plate 11). Each of these concessions (and
their extensions) treats the 15 parallel as the southernmost line of the
territory of Honduras. Many of the concessions were granted to third State
companies. The details of each ofthese concessions was published in 'La
Gaceta', the Official Journal of the Republic of Honduras. The first
concession was granted in 1955. 46 Other concessions have been granted
44
See e.g. L Sass and C.H. Neff. 1962. Deveiopments in South America and Caribbean
Area, Bulletinof the American Association of Petroieum Geologists 46 (Il): 1125 (map
of Honduras): Neff. C.H. 1962. Developments in South America and Caribbean Area,
Bulletin of the American Association of Petroleum Geologists 54/7:1380. 1383;
Petroleum Concession Handbook. Supplement 6, Barrows 1972 (map of Nicaragua); P.
Jacobsen, Jr. and C.H. Neff. 1972. Developments in South America and Caribbean
Area, Bulletin of the American Association of Petroleum Geologists 56/9:1653-54
(maps of Honduras and ofNicaragua); Hatfield, L.E, B.A. Tator and C.H. Neff. 1975.
Developments in South America and Caribbean Area, Bulletin of the American
Association of Petroleum Geologists 59 (10):1806, 1808 (maps of Honduras and of
Nicaragua). Ali diagrams in HCM, vol 2, annex 118.
45
And HCM, vol 3, Plate 21.
46 Resolution Conceming an Oil Concession, Published in the Official Gazette of
llonduras N.IS.SIO of 3 February 1955, Document 6-08 deposited with the Registry. 99
47
more recently. Applications by oil companies for concessions north of
1 48
the 15 hparallel have always been submitted to Honduran authorities. At
least 21 concessions have been granted. 49 Nicaragua has never objected to
any ofthese concessions.
47
Pennit for surface recogmtton of hydrocarbons granted to "Aracca Petroleum
Corporation", Published in the Official Gazette of Honduras No. 23.958 of Il March
1983, Document 6-09 deposited with the Registry.
48
See Resolution Conceming an Application for an Oil Concession Submitted by
"Republic Oil and Gas, S.A. de C.V.", Official Gazette of Honduras N.20.330 of 19
March 1971, HCM, vol 2, annex 113. See also Application for an Oil Concession
submitted by "Petrolera Hondlurei\aS.A", Published in the Official Gazette of Honduras
No. 17.566 of 2 January 1962, Document 6-10 deposited with the Registry; Application
for an Oil Concession submitted by "Signal Exploration (Honduras) Company",
Published in the Official Gazette of Honduras No. 19.175 of 29 May 1967, Document
6-11 deposited with the Registry; Application for an Oil Concession submitted by
"Signal Exploration (Honduras) Company", Published in the Official Gazette of
Honduras No. 19.184 of 8 June 1967, Document 6-12 deposited with the Registry;
Application for an Oil Concession submitted by "Phillips Petroleum Company of the
Americas", Published in the Official Gazette of Honduras No. 21.380 of 6 September
1974, Document 6-13 deposited with the Registry; Application foran Oil Concession
submitted by "Cambridge Resources Corporation", Published in the Official Gazette of
Honduras No. 23.992 of25 April1983, Document 6-14 deposited with the Registry.
49
See e.g. oil Concession, granted to "Pure Oil Company of Honduras, lnc.", Official
Gazette of Honduras No. 18.673 of 22 September 1965, HCM, vol 2, annex 107; Oil
concession Granted to "Signal Exploration (Honduras) Company", Published in the
Official Gazettef Honduras N.l9.111 of 9 March 1967, HCM, vol 2, annex 108. See
also Resolution Conceming an Oil Concession Granted to "Central American Mining
and Oil Inc", Published in the Official Gazette of Honduras No. 18.000 of 15 June
1963, Document 6-15 deposited with the Registry; Resolution Concerning an Oil
Concession Granted to "Pacifie Inland Oil Corporation", Published in the Official
Gazetteof Honduras No. 19.022 of23 November 1966, Document 6-16 deposited with
the Registry; Resolution Conceming an Oil Concession Granted to "International
Geophysical Explorations, lnc.", Published in the Official Gazette of Honduras No.
19.045 of 20 December 1966, Document 6-17 deposited with the Registry; Resolution
Conceming an Oil Concession Granted to '"Pure Oil Company of Honduras, Inc.",
Published in the Official Gazette of Honduras No. 19.140 of 17 April 1967, Document
6-18 deposited with the Registry; Resolution Conceming an Oil Concession Granted to
"Compaiiia Petrolera Chevron Honduras", Published in the Official Gazette of
Honduras No. 19.320 of 118November 1967, Document 6-19 deposited with the
Registry; Resolution Concerningan Oil Concession Granted to "Lloyd Honduras, Inc,",
Published in the Official Gazette of Honduras No. 19.668 of Il January 1969,
Document 6-20 deposited with the Registry; Resolution Conceming an Oil Concession
Granted to "LLE Honduras, Jnc.", Published in the Official Gazette of Honduras No
19.912 of 1 November 1969, Document 6-21 deposited with the Registry; Resolution
Conceming an Oil Concession Granted to "Mobil Exploration Honduras, lnc.",
Published in the Official Gazette of Honduras No. 19.913 of 3 November 1969,
Document 6-22 deposited with the Registry; Resolution Conceming an Oil Concession
Granted to"Compafiia Petrolera Chevron Honduras", Published in the Official Gazette
of Honduras No. 19.999 of 13 February 1970, Document 6-23 deposited with the
Registry; Resolution Concerning the extensionf an Oil Concession Granted to "Union
OilCompany of Honduras, lnc.", Published in the Official Gazette of Honduras No. 100
6.27. Similarly, Nicaragua has granted a series of oil concessions for the
exploration and/or exploitation of oil and gas within the territory of
1 50
Nicaragua, in the area south ofthe 15 parallhl (Plate 12). Each ofthese
concessions (and their extensions) treats the 15 h paraliel as the
northemmost limit of the territory of Nicaragua, in the sense that none of
the concessions reaches north of that parallel. Taken together, the
Honduran and Nicaraguan concessions show graphically the treatment by
both States ofthe 15 parallel as their maritime boundary (Plate 13). Many
of the concessions were granted to third State companies. Ali requests for
concessions south of the 15 1h parallel were always submitted to the
Nicaraguan authorities, at times by companies "sister" to those carrying out
oil development activities north of the 15 h parallel, ali of them belonging to
the same foreign corporate group. Severa! oil concessions granted by
Nicaragua explicit1y established parallel 14°59'08" as the northemmost
51
boundary of the concession. On one occasion such limit was corrected at
the request of the company concerned in order to modifYthe original limit
20.960 of 23 April 1973, Document 6-24 deposited with the Registry; Resolution
Concerning an Oïl Concession Granted to ''Searidge Petroleum, Ltd.", Published in the
Official Gazette of Honduras No. 21.444 of 22 November 1974, Document 6-25
deposited with the Registry; Resolution Concerning an Oïl Concession Granted to
"Phillips Petroleum Company Honduras", Published in the Oflicial Gazette of
Honduras No 21.444 of 22 November 1974, Document 6-26 deposited with the
Registry; Resolution Concerning the extension of an Oil Concession Granted to "Union
OïlCompany of Honduras··, Published in the Official Gazette of Honduras No. 21.610
of 12 June 1975, Document 6-27 deposited with the Registry; Resolution Concerning a
Permit for Surface Recognition of Hydrocarbons Granted to "Texaco Caribbean, !ne.",
Published in the Oflicial Gazette of Honduras No. 22.313 of 4 October 1977, Document
6-28 deposited with the Registry; Resolution Concerning a Permit for Surface
Recognition of Hydrocarbons Granted to "Texaco Caribbean. !ne.", Published in the
Official Gazettef Honduras No. 22.315 of 6 October 1977, Document 6-29 deposited
with the Registry; Resolution Concerning a Permit for Surface Recognition of
Hydrocarbons Granted to ''TexacoCaribbean Inc", Published in the Official Gazette of
Honduras No. 22.324 of 18 October 1977, Document 6-30 deposited with the Registry.
50
And HCM, vol 3, Plate 22.
51
See e.g. Certificationf Decree Concerning an Oïl Concession granted to ''Western
Caribbean Petroleum Company" and ··occidental of Nicaragua, !ne.", Official Gazette
of Nicaragua No. 272 of 28 November 1974 ("Biock No. 1), HCM, vol 2, annex 117.
See also Resolution Concerning an Oïl Concession Granted to "Mobil Exploration
Corporation", Decree 38 DRN of 3 May 1966, Published in the Official Gazette of
Nicaragua No. 202 of 4 September 1968, Document 6-31 deposited with the Registry;
Resolution Concerning an Oil Concession Granted to "Western Caribbean Petroleum
Company", Decree N.46-DRN, Published in the Official Gazette of Nicaragua No. 117
of 29 May 1967, Document 6-32 deposited with the Registry; Resolution Concerning
Renewal ofpetroleum concession to "Western Caribbean Petroleum Company", Decree
N.I29-DRN, Published in the Official Gazette of Nicaragua No. 72 of 4 April 1970,
Document 6-33 deposited with the Registry; Resolution Concerning Renewal of
petroleum concession to "Western Caribbean Petroleum Company" and to "Occidental
of Nicaragua, !ne.", Decree No. 132-DRN, Published in the Official Gazette of
Nicaragua No. 140 of 23 June 1976. Document 6-34 deposited with the Registry. lOI
of 14°59', established in the first concession, to the limit of 14°59'08" by
means of a new Decree of the President of the Republic. 52 The details of
each of these concessions was published in 'La Gaceta', the Official
Journal of the Republic ofNicaragua. The first concession was granted in
53
1968. The most recent concession appears to have been granted in
1975. 54
6.28. One oit field which straddles the l5 h parallel was explored jointly
by Nicaraguan and Honduran concems ("Operaci6n Conjunta Coco
Marina"). Two oit concessions were granted, one in Honduras (Black 8),
granted to Union Oit Company of Honduras, and one in Nicaragua (Union
III), granted to its sister corporation Union Oit Company of Central
52
Certification of Decree Concerning an Oil Concession granted to "Western Caribbean
Petroleum Company", Official Gazette of Nicaragua N.161 of 18 July 1968 ("Block
No. 1), HCM, vol 2, annex 115; Certification of Decree Concerning an Oil Concession
granted to "Western Caribbt:an Petroleum Company" and "Occidental of Nicaragua,
!ne." (Clarification ofDecree 86-DRN [and others]), Official Gazette ofNicaragua No.
206 of9 September 1970, HCM, vol2, annex 116.
53
Resolution Concerning an Oil Concession Granted to "Pure Oil of Central America
!ne", Published in the Official Gazette of Nicaragua No. 204 of 6 September 1968,
Document 6-35 deposited with the Registry.
54
Resolution Concerning an Oil Concession Granted to "Western Caribbean Petroleum
Company" and to ·'Occidental of Nicaragua lnc.", Published in the Official Gazette of
Nicaragua No. 259 of 14 November 1975, Document 6-36 deposited with the Registry.
Other concessions granted hy Nicaragua: "Pure Oil of Central America !ne", Gazette
No. 204, 6 September 1968 (Request for such concession in Published in the Official
Gazette ofNicaragua No. 200, 2 September 1963), Document 6-37 deposited with the
Registry; Resolution Concerning an Oil Concession Granted to "Union Oil Company of
Central America", Publishecl in the Official Gazette of Nicaragua No. 137 of 20 June
1972, Document 6-38 deposited with the Registry; Resolution Concerning extension
oil concession to "Union Oil Company of Central America", Published in the Official
Gazette of Nicaragua No. 190 of 22 August 1975, Document 6-39 deposited with the
Registry; Resolution Conceming an Oil Concession Granted to "Union Oil Company of
Central America", Decree 25-DRN, Published in the Official Gazette of Nicaragua No.
130 of 12 June 1974, Document 6-40 deposited with the Registry; Resolution
Concerning an Oil Concession Granted to "Union Oil Company of Central America",
Decree N.73-DRN, Published in the Official Gazette of Nicaragua No. 22 of27 January
1975, Document 6-41 deposited with the Registry; Resolution Concerning an Oil
Concession Granted to "Texaco Caribbean lnc", Published in the Official Gazette of
Nicaragua No. 154 of 10 July 1975, Document 6-42 deposited with the Registry;
Resolution Concerning an Extension of Oil Concession Granted to "Union Oil
Company of Central America", Decree no 170-DRN, Published in the Official Gazette
of Nicaragua No. 108 of 18 May 1977, Document 6-43 deposited with the Registry;
Resolution Concerning an Extension of Oil Concession Granted to "Union Oil
Company of Central America", Decree No. 190-DRN, Published in the Official Gazette
of Nicaragua No. 291 of 22 December 1977, Document 6-44 deposited with the
Registry; Resolution Concerning an Oil Concession Granted to "Union Oil Company of
Central America", Decree no 206-DRN, Published in the Official Gazette ofNicaragua
No. 172 of 3 August 1978, Document 6-45 deposited with the Registry. 102
America. The joint initiative was agreed privately by both corporations but
approved by the Governments of Honduras and Nicaragua. Operation
expenses were shared equally between partners. The actual weil was dug in
1969 at a point located at l5°00'00"N 82°43'30"W, but covered areas of
both concessions. As reported by Union·Oil Company of Honduras to the
Honduran Ministry of Natural Resources, the precise location of the weil
was conditioned by the seismic studies. 55 A legal opinion issued by the
Honduran government on the matter stated that the maritime boundary with
Nicaragua was at 14°59'08", that ali concessions granted by Hondurans
reached this limit, and that ali information concerning activities north of
this boundary56 had to be reported exclusively to the Honduran
Government.
D. HONDURAS REGULA TES FISHERIES ACTIVITIES IN THE AREA
6.29. The area north of the IS'hparallel over which Honduras exercises
sovereignty and jurisdiction and which is now claimed by Nicaragua
includes a number of prod1ctive, significant and well-established fisheries 57
grounds. During the 19 century the area was an important turtle fishery.
More recently and today the fisheries resources inelude lobster, grouper and
red snapper. As described in the previous section, the Honduran islands
claimed by Nicaragua have long served- and continue to serve today- as
bases used by the fishing community to carry out their activities.
6.30. The area claimed by Nicaragua has been subject to Honduran
regulated fisheries activity and jurisdiction for many decades, in an arc
linking the area north of the IS'hparallel with the islands of Roatan and
Guanaja (Plate 14). There is no evidence that Nicaragua has ever
regulated, or even sought to regulate, fisheries activity in this area. At !east
since the 1930s Honduran-registered fishing boats from Roatan and
Guanaja (the Bay Islands of Honduras) were active around Savanna Cay,
Babel Cay and Rosalinda Bank. As described below, throughout the period
55
Report from "Union Oil Company of Honduras" to the Ministry of Natural Resources
of Honduras of 20 February 1969 on Joint Drilling Operations "Coco Marina". ("The
Union Oil Company of Honduras allows itsclfto clarify that the point picked out for the
drillingof the weil was set at that place to explore the common structure that was
defined with the seismic survey and covers concession areas in Honduras and
Nicaragua[ ... ]", HCM, vo12, annex 110.
56
Opinion of the Interstate Study Commission [undated], HCM. vol 2, annex 109;
Preliminary Report on the Drilling Operations of "Coco Marina N.1" oil weil,
submitted to the General Director of Mines and Hydrocarbons of the Ministry of
Natural Resources of Honduras on 26 May 1969, HCM, vol 2, annex 111.
57
See supra paras 3.9-3.13. 103
it is apparent that the area has been treated as part of Honduras, and that the
area has not been used by Nicaraguan fishing vessels.
6.31. Such recognition is reflected also in the activities of third States,
dating back more than 50 years. In 1943 the Fish and Wildlife Service of
the US Department of the Interior and the US Office of the Coordinator of
Inter-American Affairs prepared a Report on "The Fisheries and Fishery
Resources of Honduras". 58 The Report describes the potential fishing area
in Honduras offshore from Cape Gracias a Dios as
"a great expanse of shallow water with many cays, reefs and
shoals. The 100-fathom line is about 90 miles off Cape Gracias a
Dios and about 15 mil~ o~fsPoint Patuca. A number of important
banks occur in this section. They include Gorda "59k, Rosalind
Bank, Serranilla Bank, Thunder Knoll and others.
6.32. This area, which is precisely that now claimed by Nicaragua, has
also been the subject of various studies funded by the United Nations and
the FAO Regional Central America Fishery Development Project, which
treat the area as falling within the territory Honduras. In 1971 the UN
and FAO published a biological study aimed at research on spiny lobster
and coastal shrimp in the Western Caribbean. To conduct such research,
the scientific team undertook in 1970 severa! cruises in the area, three in
Honduras and one in Nicaragua. As reported in the study, two of the
cruises in Honduras were completed between 16°00'N and
80°50'/82°10'W, and between l5°00'N and 16°00'N, respective1y.
Research in Nicaragua was performed in the area between 13°50'N and
1 60
14°15'N, i.e. southofthe 15 h parallel.
6.33. In the 1980s the FAO, in collaboration with the United Nations
Development Programme and the Inter-American Development Bank
supported further fisheries studiesin Honduras, including in the area now
claimed by Nicaragua. The studies were initiated by a proposai from the
Honduran Govemment's Corporaci6n Nacional de lnversiones (National
lnvestment Corporation) to the Inter-American Development Bank,
requesting financial assistance to examine the potential for fisheries in the
northem area of Honduras, including specifically around the fisheries banks
58
HCM, vol 2, annex 162.
59 Ibid, p 2. Each ofthese banks falls within the area now claimed by Nicaragua.
60
"Exp1oratory and Simulatecl Commercial Fishing Operations in the Western Caribbean
Sea. RIV "CANOPUS", May to November 1970" by Marcel Giudicelli, CCDO-FAO
UNDP, San Salvador 1971, HCM, vol2, annex 163. 104
of Rosalinda and Thunder Knoll, as weil as the Media Luna reefs. 61 In
1985 the FAO published a Report establishing a Programme on
"Investigation and Commercial Evaluation of the Main Mariti62 Fishing
Capacities of Honduras in the Northern Zone", including research
activities north of parallel 15°05' and including Media Luna reef and the
fisheries banks of Thunderknoll, Del Medio, Rosalinda and Serranilla.
Later reports published by the FAO pursuant to this Programme also refer63
to this area, treating it as falling within the territory of Honduras.
6.34. Pursuant to its legislation, Honduras has long granted fisheries
licences to its nationals and to nationals of third States (inc1uding 64
Nicaraguan nationals) to fish in the area north of the 15 parallhl. In his
deposition the Director of the Regional Department of Fisheries in Gracias
a Dios states:
"As fishing officiais they verify that ali persons involved in
fishing activities hold the required documentation, that is, that they
hold a permit or licence; during his office as Inspector, that is as
from February 1999, he has visited the Cays once, and in that visit
he determined that the Cays are mostly occupied by Jamaicans and
two or three Nicaraguans who have received traditional fishing
permits; the families of the Jamaicans and Nicaraguans live in the
61
HCM, vol2, annex 161.
62 HCM, vol 2, annex 158.
63
See Project HON/82/0 10. Results of the Fishing Program Effected by the 8/1
"LAMATRA'" in the Honduran Atlantic (May 1985-April 1986), June 1986, HCM, vol
2, annex 159; Investigation and Commercial Evaluation of the Main Maritime Fishing
Capacity of Honduras in the Northem Zone. Results and Recommendations of the
Project. United Nations Development Program. FAO, Rome 1987, HCM, vol 2, annex
160.
64
Statement of Edgar Henry Haylock Arrechavala, HCM, vol 2, annex 74 (''duringali the
time he has been in charge of fishing boats [30 years], Honduras has regulated the
fishing activities [. ] he represents that the fishing permits were obtained in
Tegucigalpa"; Statement of Mario Dominguez, HCM, vol 2, annex 80 ("to his
knowledge since he occupied Cayo Sur, the Jamaicans have been fishing in Cayo
Savana with permits issued by the Honduran authorities and they only capture fish'");
Statement of Angela Green de Johnson, vol 2, annex 77 ("as far as she is aware the
Jamaicans have been in those cays since the year one thousand nine hundred and
seventy two and have been granted work permits by the Honduran authorities");
Statement of Robert Richard Gough, vol 2, annex 84 ("the fishing permits were issued
by the Natural Resources Ministry and it was the Honduran authorities who provided
documents to the seamen"). Similarly, sea captains from the Bay Islands report that
Honduran authorities have granted fishing Iicenses since the 1960s: Arturo Parchmont
Wood, vol 2, annex 92; Austin Larrabee Ebanks Wood, vol 2, annex 93; Bryd Adalid
Rosa Chavez, vol 2, annex 91; Eri Melvin Hyde More, vol 2, annex 90; Audley
Desmond Phillips Woods, vol 2, annex 89; John True Osgood Moore, vol 2. annex 88;
Charlie Edward Ebanks Woods, vol2, annex 87. 105
mainland, in Honduras; the fishing permits are granted for one
year and expire in December and are theo subsequently renewed;
[... ] these permits are for fishing with traditional procedures; the
Jamaicans have their own motorboats and that most of the product
is exported to Jamaka; they are charged a certain amount
according to the type of fishing permit depending on whether it is
for traditional fishing, industrial fishing or for purchase and sale,
and each of these permits is subject to a specifie tax; [... ]
industrial permits are granted to fishing boats; and that they verify
whether these persons have the required permits when the Naval
Force conducts its patrolling routines as their budget does not
allow them to carry out these inspections frequently; [... ]
considering the distan<;e from the cays to the mainland and in
order to save costs, applications for permits are made collectively
entrusting one person with the proceedings[.]" 65
6.35. One fishennan who is a Jamaican national and who has been
fishing off Savanna Cay for more than thirty years explains:
"1 fish here because 1 have been provided with a licence by the
Honduran fishing authorities. 1 always go to Puerto Lempira to
renewal my licence. 1 fish red snapper and grouper, many
different types of fish that 1 export to Jamaica. 1 do not sell in
Honduras what 1 fish, given that there exists a better market in
Jamaica. The exporting of fish to Jamaica is allowed through a
licence issued by the Honduran Govemment." 66
6.36. Another Jamaican fisherman who has been fishing around Savanna
Cay for more than 15years states:
"1 live on the island during the fishing season. We fish every day
but we retum to the Key at night, where we sleep. 1 am authorised
to fish here by the Honduran fishing authorities, which have
provided me with a licence to fish here. We obtain a new licence
every year. We pay the Honduran Govemment so asto obtain the
licence. 1 have never tumed to the Nicaraguan authorities so asto
obtain a licence. 1hav1enever seen a Nicaraguan public official on
the island. No Nicaraguan public official has told me to obtain the
67
fishing licence in Nicaragua."
65 Statement of Ramon Antonio Nell Manister, HCM, vol2, annex 72.
66
Statement of Maurice Gowe,,HCM, vol2, annex 67.
67 Statement of Everton Anthony HCM, vol 2, annex 66. 106
6.37. In another deposition a Honduran fishennan states that over the
course of his thirty years experience fishing around the islands:
"the seamen operating Honduran fishing boats [... ] always
acknowledged Parallel 15 as the 1imit and then changed course
veering 90° to the East and then continued to the north; during the
time he worked as Master in Honduran fishing vessels, the
Nicaraguans never conducted any fishing activities north of
Parallel 15 and at that time there were no patrolling ships either
from Honduras or Nicaragua[ ... ] Parallel 15 has always been the
line considered as the maritime border between both countries; in
the course of this fishing activities as Master he never found any
Nicaraguan fishing boats operating north of the above-mentioned
parallel, and only fishing boats belonging to Honduran nationals
were found." 68
6.38. Other Honduran fishermen whose depositions form part of this
pleading have provided statements confinning unambiguously that for the
fishing community the !5th parallel has always been recognised as the
69
boundary between Honduras and Nicaragua. As one fisherman states in
his deposition, for more than sixty years:
68 Statement of Edgar Henry Haylock Arrechavala, vol 2, annex 74.
69
See Statement of Gabriel Echeverria Arrechavala, HCM vol 2, annex 75 ("[I] never
encountered any Nicaraguan fishing boats in the arca north of Parallel 15°; it is only
now that problems have arisen with the Sandinists because the Nicaraguan patrols
invade the area north of Parallel 15°;[... ] the Nicaraguan authorities have never granted
fishing perrnits northf Paralle1 15°'');Statement of Santos Calderon Morales, HCM,
vol 2, annex 78 ("since the Award issued by the International Court of Justice the
border line between the two countries has always been respected; such border line has
not only been observed by the fishing boats but also by the Honduran and Nicaraguan
authorities, ands also known as Parallel 15°"); Statement of Mario Dominguez, HCM,
vol 2, annex 80 ("in his experience ali fishermen admit and acknowledge that parallel
fifteen (15°) acts as the maritime border between Honduras and Nicaragua"), Statement
of Daniel Bordas. vol 2, annex 70 ("he represents that after the Award of the
International Court of Justice the Parallel Fifteen (15°) was always acknowledged as the
border between Nicaragua and Honduras"); Statement of Edgar Henry Haylock
Arrechavala, vol 2, annex 74 (''Parallel 15° has always been the line considered as the
maritime border between both countries [Honduras and Nicaragua)"); Statement of
Daniel Solabarrieta Armayo, HCM vol 2, annex 82 ("parallei fifteen acted as the
maritime border between Honduras and Nicaragua for their fishing activities and at that
time [1950s and 1960s] no problems arose with the Nicaraguan government");
Statement of Herbert Balder Hyde Carter, vol 2, annex 83 (''ali Honduran fisherman
and authorities have always acknowledged that the maritime border between Honduras
and Nicaragua is Parallel 15."); Statement of Robert Richard Gough, HCM vol 2, annex
84 ("when they fished in Honduras they operated (... ] up to the North ofParallel 15°as
this was the maritime border at that time [1960s] and because the maps used had been
acquired in the United States and such limit appeared in them"); Statement of Bob
Ward McNab Bodden, HCM vol 2, annex 86 ("at present he is fishing in Nicaragua 107
"as far as [1 am] aware and since [I] was born the border line
between Honduras and Nicaragua has always been Parallel fifteen
(15)".70
6.39. The significance of the 151h paraliel has also been recognised by
1
merchant seamen, who explain that the 15h parallel was the boundary
marked in the nautical charts produced in the United States that they would
use for navigation. Charles Lindbergh Dixon states in his deposition that
he:
"[w]as employed as an officer and Master of large vessels from
[1958] until [2000] sailing north of Parallel 15 commanding
merchant ships boundl for Puerto Limon in Costa Rica and
Panama; that the sailing directions contemplated Parallel 15 as the
maritime border betwc!en Honduras and Nicaragua because as
such it was recorded in the navigation charts which were acquired
in the United States; ht is aware that there are British navigation
charts which show the border line between Honduras and
Nicaragua to be Parallel 15; he used both of these charts; he
further deposes that he never encountered any Nicaraguan fishing
71
vessels north of Parallel15."
6.40. In his deposition Daniel Solabarrieta Armayo explains how he has
fished in the area since 1958, using Guanaja as a base for fishing around the
islands. He says that:
"he started his fishing activities following a fishing concession
granted by the Govemment of Julio Lozano Dfaz and then he
acquired other fishing boats in Spain with ali their tackle which
considerably improved the Honduran fishing industry, specially in
Guanaja; there were ten fishing boats in total and ali the
complement was from Honduras, including a Honduran Master
called Baldor Hyde who went to Spain to bring the fishing vessels;
with this fleet he extended his scope of action to ali the coast of
the Caribbean Sea and the Antilles including ali the fishing boats
south of Parallel 15 and 82° West [... ] ships continue fishing south of Parallel 15°
which has been the traditional limit respected by ali). See also statements by Arturo
Parchmont Wood, vol 2. annex 92; Austin Larrabee Ebanks Wood, vol 2, annex 93;
Bryd Adalid Rosa Chavez, vol 2, annex 91; Eri Melvin Hyde More, 2, annex 90;
Audley Desmond Phillips Woods, vol 2, annex 89; John True Osgood Moore, vol 2,
annex 88; Charlie Edward Ebanks Woods, vol 2, annex 87.
70 See Statement of Francisco G6mez Colomer, HCM, vol2, annex 79.
71
Statement of Charles Lindbc!rghDixon, HCM, vol 2, annex 85. See also statements by
ArturoParchmont Wood, vol 2, annex 92, and Austin Larrabee Ebanks Wood, vol 2,
annex 93. 108
located in that Area up to the Cape Gracias a Dios in parallel 15,
Serranilla and Rosalinda; the product obtained from those areas
was sold or exported to Tampa, United States;
[... ] paralle1 fifteen acted as the maritime border between
Honduras and Nicaragua for their fishing activities and at that time
no problems arose with the Nicaraguan govemment; in the event
of rough weather or hurricanes they took shelter in the Cays of
Caratasca and sometimes south of the Cape Gracias a Dios; from
[1958) until [1974] when he quit his fishing activities they never
found any [Nicaraguan] fishing vessels north ofparallel 15;
[... ] he provided monthly reports on the amount of product fished
with a breakdown of what was exported and for domestic
consumption to the Ministry of Natural Resources; [...]
maintenance of ali the fishing fleet was carried out here in
Guanaja by persons trained to that purpose;" 72
6.41. Another fisherman states that from the time he started fishing in the
area (in 1958) until he retired he
"never encountered any Nicaraguan boats north of Parallel 15and
he never had any problems with the Nicaraguan authorities nor
were their boats boarded by the Nicaraguan authorities requesting
them to show their documents." 73
6.42. Another fisherman, Mario Dominguez, maintained a fishing base at
South Cay for nine years until it was ransacked by Nicaraguans in
December 2000. As set out in his deposition:
"he owns a motorboat which is registered in Puerto Lempira and
for these activities he makes use of the installations located in
South Cay as from [1992); the installations in question include a
wooden house where he stores fishing equipment, such as fishing
nets, diving equipment, a freezer and an electricity plant; his
captures are mainly fish, snails and lobster; he also states that in
order to conduct his fishing equipment [sic] he applies for a
fishing permit each year from the Fishing Inspector of Puerto
Lempira and satisfies the appropriate tax thereon; in order to carry
his fishing activities he hires individuals, that is assistants apart
from his two sons; he further declares that he operates in the
fishing banks close to South Cay; the product obtained is exported
to Jamaica through a Jamaican boat that sails to that zone; the
72
Statement of Daniel Solabarrieta Arrnayo, HCM, vol 2, annex 82.
73 Statement of Herbert Balder Hyde Carter, HCM, vol 2, annex 83. 109
Jamaican boat which acquires their product obtains its export
permit from the Customs Authorities in Puerto Lempira where
they pay their taxes; he as a fisherman pays his taxes in Puerto
Lempira; with respect to his fishing activity he files a tax
statement before the Govemment of Honduras and further
represents that in his experience ali fishermen admit and
acknowledge that parallel fifteen (15°) acts as the maritime border
between Honduras and Nicaragua; he further deposes that on the
twentieth of December of last year his belongings in South Cay
were sacked and as a consequence of that robbery he lost ali his
fishing and diving equipment and damages [sic] the freezer and
the installations; he be Heves on the basis of the account provided
by the two persons that were in charge of the installations that the
offenders were Nicaraguan because they arrived in a speedboat in
company ofarmed men and fired shots with an AK-47; fortunately
74
this is a single incident which has not been repeated;"
6.43. These fisheries activities are duly regulated by the Honduran
authorities. Fisheries concessions (to companies) and licences (to
individuals) have been granted by the national authorities of Honduras for
severa! decades, upon request of the company or individual and payment of
the appropriate fee. The: requests by companies for concessions are
published in La Gaceta (the Official Journal of Honduras), and typically
5
they indicate the area for which the concession was sought/ the type of
fish to be harvested, and the proposed duration ofthe concession. Volume
74
Statement of Mario Dominguez, vol 2, annex 80. Austin Larrabee Ebanks Wood also
states that he had a house in South Cay, made of cement, which was used "as a home
for the Honduranfisherman", vol 2, annex 93.
75
See e.g. area described in Notification Conceming an Application for Fishing
concession Submitted by "Honduref\a de Pesca, S. de R.L.", Published in the Official
Gazette of Honduras N.l7.6111of23 February 1962:
"The area destined for fishing will include the area from the Bay of Puerto Cortés
up to the mouthof the River Wans Coco or Segovia, in a North bound direction,
up to where the territorial seaonduras extend to, in the bed and subsoil of the
submarine shlef, continental shelf and other zones that correspond to Honduran
sovereignty, in accordance with the provisions of the Constitution of the
Republic" (HCM. vol2, annex 119).
Also area described in Notification Conceming an Application for Fishing permit,
Submitted by "Alimentas Marinas Honduref\os, S. A.", Published in the Official
Gazette of Honduras No. 22.551 of 17 July 1978:
"[... ] from the Bay of Puerto Cortés,in the Department of Cortésup to the mouth
of the River Wans Coco o Segovia, in the territorial sea, in the bed and subsoil of
the submarine shelf and other adjacent submarine zones in its territory, and up to
where the depth ofthose waters allow for the exploitation of the marine resources,
in accordance with the Law and International Treaties [... )" (HCM, vol 2, annex
120). 110
2 of this Counter-Memorial includes examples of such requests from the
company "Hondurefia de Pesca" for fishing shrimp, lobster and other
species off the Mosquito coast, dating back to February 1962, and from the
company "Alimentas Marinas Hondurefios" in 1978. The fishing activities
of Alimentas Marinas Hondurefios in this area are corroborated in witness
statements. 76 Fisheries concessions were granted by Congressional Decree
77
and published in La Gaceta.
6.44. Together with the fisheries licence, the Honduran authorities
provide the fishermen with a bitacora, a document which indicates the area
in which fishing is permitted and which is to be returned to the Honduran
authorities with an indication of the quantity and type of the fish which
have been caught as weil as the location. With regard to the location, the
area in question is divided into grids. The bitacora issued for the area now
1
claimed by Nicaragua uses the 15 h parallel as the southernmost limit ofthe
fishing area authorised by Honduras. Bitacoras for this area have been
issued since at least the 1970s. At Plate 31 in Volume 3 there are
reproduced copies of two bitacoras dating to 1978, showing the 15 1h
paraIlel as the southern limit of Honduran fisheries jurisdiction.
76
Statement of Edgar Henry Haylock Arrechavala:
"[.. ] they fished in the area from Patuca to the Parallel 15°and from there out to
sea until they reached the Rosalind Fishing Bank [... ] the company that hired
them was called Alimentas Marinas; in the first year of operation the company
employed North American captains but after the second year there were only
Honduran Masters; he also states that Alimentas Marinas was located in the reef
of Caratasca but the company went under due to the hurricane Greta; he further
deposes that within the fishing areas we find South Cay, Savanna Cay and Bobel
Cay because there are fishing banks next to these Cays; the fishing boats sold
their captures in Guanaja except those boats hired by Alimentas Marinas (Marine
Foods) that unloaded their production in Puerto Lempira; he started out as a
Master with Alimentas Marinas and later continued working for local fishing
boats of the islands; the owners of the tishing boats paid their taxes in Guanaja
and those of Alimentas Marinas in Puerto Lempira" (HCM, vol2, annex 74).
Also Statement of Porfirio Echevarria Haylock:
"[... ]he worked as a fishing boat captain for Alimentas Marinas and then moved
to Guanaja in 1969 [... ]the fishing area was Tela and Ceiba up to parallel fifteen
which included the banks close to the cays" (HCM, vol 2, annex 76).
77 See e.g. Resolution Conceming a Fishing Concession Granted to "Mariscos de
Centroamérica", with base in Cayos Vivorillos, Decree No 109, Published in the
Official Gazette of Honduras No. 20.302 of 15 February 1971, Document 6-46
deposited with the Registry. lll
6.45. Finally, where th<::fisheries licences or concessions are not
complied with, or where they have expired, enforcement measures are
78
taken by the Honduran authorities.
6.46. There is overwhelming evidence that Honduran regulation of
fishing in the area is well-established and uninterrupted, and that it has not
been previously challenged by Nicaragua. Honduras has granted fishing
concessions and permits for the area at )east as early as 1962 79 and
80
uninterruptedly ever since. The evidence includes:
• ali fishing boats operating in the area are Honduran
registered or, if registered by third countries, are authorized
to carry out their activities in the area by Honduras; 81
• the 15 1h parallel is now and has always been recognised by
fishermen as the southem limit of Honduras' fishing
jurisdiction and the northem limit of Nicaragua's fishing
jurisdiction, and these islands and cays treated as
82
Honduran;
78
See Statement of Fabian Flores Ramirez, HCM, vol 2, annex 73; Statement of Ramon
Antonio Nell Manister, HCM, vol 2, annex 72. See also infra paras 6.60 to 6.63 on
naval patrols.
79
Resolution conceming a fiishing concession published in the Official Gazette of
Honduras No. 17.61, 23 February 1962, HCM, vol2, annex 119.
80
See supra paragraphs 6.34-6.36 above.
81
Statement of Harley Seision Paulisto, HCM, vol 2, annex 71 ("the Jamaican residents
own motorboats registered in Honduras"); Statement of Maurice Gowe, HCM, vol 2,
annex 67 ("1 fish here because 1 have been provided with a licence by the Honduran
fishing authorities"); Statement of Everton Anthony, HCM, vol 2, annex 66 ("'[ am
authorised to fish here by the Honduran fishing authorities, which have provided me
with a licence to fish here. We obtain a new licence every year. We pay the Honduran
Govemment so as to obtain the licence."); Statement of Selvin McKenlly Johnson,
HCM, vol 2, annex 68 ("Here 1need a licence to fish, and 1obtain the licence from the
Honduran authorities in Puerto Lempira. I would never go to Nicaragua to obtain a
licence."). Also Statement of Edgar Henry Hay1ock Arrechevala, HCM, vol 2, annex
74; Statement of Gabriel Echeverria Arrechavala, HCM vol 2, annex 75; Statement of
Porfirio Echeverria Haylock, HCM vol 2, annex 76; Statement of Angela Green de
Johnson, HCM, vol 2, annex 77; Statement of Francisco G6mez Colomer, HCM, vol 2,
annex 79; Statement ofMario Dominguez, vol2, annex 80.
82 See supra paras 6.37-6.42. See also Statement of Daniel Bordas HCM, vol2, annex 70
("it bas always been admitted that Cayo Bobel belongs to Honduras"); Statement 1f
Selvin McKenlly Johnson, HCM, vol 2, annex 68 ("everything North of the 15 h
parallel, including ali these: islands, the entire fishing community knows, belong to
Honduras"); Maurice Gowe, HCM, vol 2, annex 67 "Savanna Cay is in Honduras and
not in Nicaragua''); Arturo Parchmont Wood, vol 2, annex 92; Austin Larrabee Ebanks
Wood, vol 2, annex 93; Bryd Adalid Rosa Chavez, vol 2, annex 91; Eri Melvin Hyde
More, vol 2, annex 90; Audley Desmond Phillips Woods, vol 2, annex 89; John True
Osgood Moore, vol2, anne ~8; Charlie Edward Ebanks Woods, vol 2, annex 87. 112
• generally, Honduran fishermen go south of the !5th parallel
only where they need to take shelter at Cape Gracias a Dios
83
in times of storm, or if authorised by Nicaraguan
authorities; 84
retired Honduran fishermen have reported that up to the
1960s there were attempts to place markers at sea along the
!5thparallel to indicate the boundary between Honduras and
Nicaragua, and the southem limit of Honduran fishing
85
waters and the northem limit ofNicaraguan fishing waters;
fisheries catches in the area are reported to the Honduran
authorities and treated as part of Honduras' catch for FAO
reporting purposes, and there is no evidence that catches
from the area are reported to the Nicaraguan authorities; 86
• fish caught in Honduran waters north of the !5thparallel are
authorised for export by Honduras and treated by importing
countries (including Jamaica and the United States) as
Honduran product; 87
83
Statement of Mario Dominguez, HCM, vol 2, annex 80; Statement of Herbert Balder
Hyde Carter, HCM vol 2, annex 83; Statement of Edgar Henry Haylock Arrechavala,
HCM, vol 2, annex 74, Statement of Porfirio Echevarria Haylock, HCM, vol 2, annex
76.
84 Statement of Gabriel Echevarria Arrechavala, HCM, vol 2, annex 75; Statement of
Robert Richard Gough, HCM, vol 2, annex 84.
85 Memorandum of the Head of the Technical Supervision Division of the Honduran
National Harbour Authority to the Head of Hydrography dated Il July 1980
(Installation ofbuoys). HCM, vol 2, annex 155.
86
See e.g. Statementof Daniel Solabarrieta Armayo, HCM, vol 2, annex 82 ("he provided
monthly reports on the amount of product fished with a breakdown of what was
exported and for domestic consumption to the Ministry ofNatural Resources").
87
Statement of Eugenio Chirinos Mejia, Customs Supervisor, HCM, vol 2, annex 69;
Statement of Maurice Gowe, HCM, vol 2, annex 67 ("1 do not sell in Honduras what 1
fish, given that there exists a better market in Jamaica. The exporting of fish to Jamaica
is allowed through a licence issued by the Honduran Government. 1believe they have
an agreement with the Jamaican Government for the exporting of fish."); Statement of
Everton Anthony, HCM, vol 2, anncx 66 ("1 sell in Jamaica what 1fish. Ali ofit goes to
Jamaica. The licence that we are provided with by the Honduran Government permits
us to export the fish to Jamaica. There exists an accord between the Jamaican
Government and the Honduran Government so as to seli the fish in Jamaica.");
Statement ofSelvin McKenlly Johnson, HCM, vol 2, annex 68 ('"Theproduct that 1fish
here is sold in Jamaica. The licence that we are provided with by the Honduran
Government allows us to export the produce of our fishing to Jamaica."); Statement of
Mario Dominguez, vol 2, annex 80 ('"the product obtained is exported to Jamaica
through a Jamaican boat that sails to that zone; the Jamaican boat which acquires their
product obtains its export permit from the Customs Authorities in Puerto Lempira
where they pay their taxes''). See also statements of Arturo Parchmont Wood, vol 2, 113
• fish caught in Honduran waters north of the !5th parallel
which are not exported are sold in Honduras, not in
Ntcaragua; 88
• the fishing areas north of the !5th parallel, including ali the
fishing banks, are patrolled by the Honduran authorities
(including the Honduran Navy and air patrols), not by the
Nicaraguan authorities, 89 and the Honduran authorities have
taken steps to enf4Jrce Honduran fisheries laws, including
against Nicaraguan vessels (most recently in July 2001) (no 90
Nicaraguan patrol vessels have been identified in the area
except to "bother" legitimate fishing duly authorised by the
annex 92; Austin Larrabee Ebanks Wood, vol 2, annex 93; Bryd Adalid Rosa Chavez,
vol 2, annex 91; Eri Melvin Hyde More, vol 2, annex 90; Audley Desmond Phillips
Woods, vol 2, annex 89; John True Osgood Moore, vol 2, annex 88; Charlie Edward
Ebanks Woods, vol 2, annex 87.
88 See Statement of Edgar He:nry Haylock Arrechevala, HCM, vol 2, annex 74 ("the
fishing boats sold their captures in Guanaja except those boats hired by Alimentas
Marinos (Marine Foods) that unloaded their production in Puerto Lempira"); Statement
of Mario Dominguez, vol 2, annex 80 ("the captures of the Jamaicans are exported to
Jamaica and is also sold to the Hondurans in Guanaja").
89
Statement of Ramon Antonio Nell Manister:
"[... ] during the term of his office no Nicaraguan authority has attempted to
regulate the fishing activities in the Cays and whilst holding oftice he is aware
that only Honduran Patrols from the Naval Force cover the area of the cays, and
during the Closed Season it is the Honduran Merchant Navy that supervises and
controls the fishingctivities" (HCM, vol 2, annex 72).
See also Statement of Selvin McKennly Johnson, HCM, vol 2, annex 68 ("[o]nce you
obtain a licenceit is necessary that you carry it with you at ali times, so asto be able to
show it in the event that the Honduran patrol boats requests such. But 1have never been
asked to show same, given that the majority of the patrol boats know me, and my
vesse!."); Statement of Mario Dominguez, vol 2, annex 80 ("[h]e also declares that
during the timehe has worked as a fisherman in Cayo Sur, the Honduran Naval Force
has patrolled the area and he has even joined the authorities in its patrolling efforts; said
patrols have gone as far as parallel fifteen (15°)"; Statement of Santos Calderon, HCM,
vol2, annex 78 (''tothe exte:ntof his knowledge the Nicaraguans have never attempted
to regulate the fishing activities northarallel 15°").
90
Statement of Fabian Flores Ramirez, HCM, vol 2, annex 73 (''aweek ago sorne four
fishing boats with the Nicaraguan tlag were seized because they were fishing illegally
in the area of the Cays Sur and Bobel"). See also on seizure of a Nicaraguan vesse!
fishing illegally, Report Dated 23 September 2000 to the Naval Commander of the
Honduran Naval Base of Puerto Castilla, Regarding the Capture of a Nicaraguan Vesse!
while Engaged in Illegal Activities to the North of the 15° Parallel, HCM, vol 2, annex
141. 114
Honduran authorities, and there is no evidence of
91
enforcement by Nicaragua of its fisheries laws in the area);
• the fishing vessels active in the area obtain - and according
to the evidence have always obtained - their supplies from
Honduran ports, including Raya and Puerto Lempira, and not
from Nicaraguan ports; 92
• the fishermen and ship-owners operating in the area have
always paid and continue to pay their taxes in Honduras, not
in Nicaragua, 93 and they obtain their insurance from
. . 94
H on dran msurance compames;
• the social connections of the fishermen living on Savanna
Cay and South Cay are with Honduras (they are married to
Honduran women, their children have Honduran nationality,
their families live and work in Honduras, and their children
95
attend Honduran schools);
91 Statement of Ram6n Antonio Nell Manister. HCM, vol 2, annex 72 ("the Nicaraguan
authorities have [not1 tried to regulate [fisheri1sin the aforementioned cays");
Statement ofEverton Anthony:
"Sometimes the Nicaraguans come over here and bother us. They do not come
here to fish or to enquire about the licences, they solely come to bother the
fishermen who have a right to fish here, right that was granted to usby the
Honduran authorities." (HCM. vol2, annex 66).
92 Sec Statement of Maurice Gowe:
"Even though the community of La Barrita is Honduran territory and is closer to
Savanna Cay, when we require provisions or medical assistance we travel to the
Community of Raya, Municipality of Ram6n Villeda Morales, Administrative
Districtof Gracias a Dios, firm land in Honduras, given that we have a hundred
per cent relationship with Honduras and none with Nicaragua, and there we
receive greater amounts of provisions and better public services. Ever since I was
a child we have always gone to Raya and Puerto Lempira.'"(HCM, vol 2, annex
67).
Also Statement of Selvin McKennly Johnson, HCM, vol 2, annex 68; Statement of
Everton Anthony, HCM, vol 2, annex 66; Statement of Daniel Solabarrieta Aramayo,
HCM, vol 2, annex 82 ('"maintenance of ali the fishing fleet was carried out here in
Guanaja by persons trained to that purpose").
93
Sec e.g. Statement of Edgar Henry Haylock Arrechevala, HCM, vol 2, annex 74;
Statement of Mario Dominguez, HCM, vol 2, annex 80; Statement of Robert Richard
Gough, HCM, vol 2, annex 84; Statement of Santos Calder6n, HCM, vol 2, annex 78.
Statement of Daniel Solabarrieta Aramayo, HCM, vol 2, annex 82.
94
Statement of Daniel Solabarrieta Armayo, HCM, vol 2, annex 82 ("when the seamen
became ill or suffered an accident they were insured of these risks by the Insurance
Company Interamericana in Tegucigalpa").
95
See Note N.007-99 dated 31 March 1999 addressed by the Regional Agent of Migration
of Puerto Lempira to the General Director of Population and Migratory Policy on an
on-site visit to the cays, HCM, vol2, aunex 146, determining that ali foreign-Jamaican 115
• where these fishermen require medical attention they attend
96
the facilities in Raya, Puerto Lempira or Roatan;
• the crews of larger fishing boats operating in the area are and
have been nationals ofHonduras; 97 and
• where there have been accidents involving fishing boats in
the area it is the Honduran authorities which have been
involved in search and rescue, not the Nicaraguan
98
authorities.
6.47. By contrast, Nicaragua has provided no evidence to the Court to
show that it has ever applied or enforced - or even sought to apply and
99
enforce - its fisheries laws north of the ]5th parallel. Its own legislation
and maps indicate that the northern limit of the Nicaraguan fisheries
100
jurisdiction lies south of the !5th paralle1. Other evidence confirms that
Nicaragua's new claim to the area is inconsistent with, and unsupported by,
its own practice in relation to fisheries matters, as well as the application of
its laws generally. By contrast, there is no evidence that Nicaragua has
and Nicaraguan--fishennen living in the cays who are married are married to Honduran
women and have their pennanent residence in towns of the Honduran coast. Also e.g.
Statement of Fabilm Flores Ramirez, HCM, vol 2, annex 73 ("their children go to
school in the mainland where they attend the schooling facilities available in those
communities ''); Statementof Santos Calder6n, HCM, vol 2, annex 78; Statement of
Selvin McKennly Johnson, HCM, vol 2, annex 68; Statement of Mario Dominguez, vol
2, annex 80.
96 Sec Statement of Maurice Gowe, HCM, vol 2, annex 67; Statement of Everton
Anthony, HCM, vol 2, annex 66; Statement of Selvin McKennly Johnson, HCM, vol 2,
annex 68. Sec also excerpts from the records of the Fantasy Island Clinic, 17 November
1997 to 13 May 1999, rec:ording the treatment of divers involved in accidents in
Rosalind Bank, HCM vol 2, annex 151, and excerpts from labour law cases resulting
from diving accidents around the cays and banks, supra para 6.22.
97
Statement of Daniel Solabarrieta Annayo, HCM, vol 2, annex 82; Statement of Robert
Richard Gough, HCM, vol 2, annex 84; Statement of Herbert Balder Hyde Carter,
HCM, vol 2, annex 83.
98
Sec Statement of Everton Anthony:
"lfthere is an accident or somebody needs to be hospitalised, they travel to Puerto
Lempira where they are provided with the necessary medical attention. ln the
event of an accident at sea, and there is a need for a "Search and Rescue'',this is
carried out by the Hondurans. Wc never go close to the Nicaraguans- they stay
on their side [... ]" (HCM, vol2, annex 66)
Also Statement of Robert Richard Gough, HCM, vol 2, annex 84; Statement of Edgar
Henry Haylock Arrechavala, HCM, vol 2, annex 74; Statement of Gabriel Echeverria
Arrechavala, HCM, vol 2, annex 75; Statement of Mario Dominguez, HCM, vol 2,
annex 80.
99
Sec Statement of Ramon Antonio Nell Manister, HCM, vol 2, annex 72.
lOO Sec for example oil concessions granted by the govemment of Nicaragua supra paras
6.27-6.28. 116
ever claimed the right to apply its fisheries laws in areas north of the 15'h
paraliel.
6.48. The evidence shows that Nicaragua licensed fisheries activities only
1
up to the 15h parallel and not north of that point. Robert Gough, a
Honduran fisherman states in his deposition:
"From the period between 1980 and 1983 he fished in the
Nicaraguan Republic with a permit from the Nicaraguan
authorities, south of Parallel 15; when they fished in Honduras
they operated from the Castilla point to Cape Gracias a Dios and
up to the North of Parallel 15 as this was the maritime border at
that time and because the maps used had been acquired in the
United States and such limit appeared in them; if they went south
of Parallel 15, their boats were captured by the Nicaraguan
authorities; the fishing permits were issued by the Natural
Resources Ministry and it was the Honduran authorities who
provided documents to the seamen; he further deposes that ali
persans working in these boats were Honduran nationals and
during ali the time they engaged in this activity they never
encountered any Nicaraguan fishing boats north of Parallel 15 and
if they found any they reported this to the Honduran authorities; at
that time the Honduran authorities conducted occasional patrols
but the Nicaraguan authorities patrolled south of Parallel 15 but
they never crossed that Iimit;" 101
6.49. Current practice in relation to the enforcement of its own fisheries
laws confirms that the Nicaraguan authorities treat the 15'hparallel as the
northem limit of its territory and of its fishing waters. Honduran fishermen
have reported that where they have been caught by the Nicaraguan
authorities allegedly fishing illegally south of the 15h parallel, they are
escorted by the Nicaraguan coastguard up to the 15'hparallel and, at that
point, released. One fisherman describes in his deposition that as recently
as 2000 a Honduran fishing vessel alleged to be fishing illegally in
Nicaraguan waters south of the 15th parallel was apprehended by a
Nicaraguan patrol, escorted to a point on the 15' parallel and- at that point
- released:
lOI
Statement of Robert Richard Gough, HCM, vol 2, annex 84. See also Statement of Bob
Ward McNab Bodden, HCM, vol 2, annex 86 ("at present he is fishing in Nicaragua
south ofParallel 15 and 82° West; he has not seen the last fishing permits issued by the
Nicaraguan authorities because the business is now run by his son Kerry Evans McNab;
he thinks that the permits mention anything about maritime limits but ships continue
fishing south of Parallel 15°which has been the traditional limit respected by ali"). 117
"he remembers an incident last year when he had a problem with a
fishing boat of Mr. Henry Jackson registered in Nicaragua which
he brought to Honduras in order to have it repaired in French
Harbor; the boat was being tugged together with a recreational
boat with an Honduran flag and he was escorted by a Nicaraguan
patrol from Puerto C102zas until they reached Parallel 15 when
the patrol retumed."
6.50. After the Sandinista Govemment came into power in 1979,
Nicaragua did, on one occasion at !east, purport to grant a fishing permit to
include an area north of p.arallel 15, but this was withdrawn following a
protest from Honduras. On 17 November 1986 the Nicaraguan fisheries
authorities (Instituto Nicaragüense de la Pesca, "INPESCA") granted a
permit for lobster fishing in Nicaraguan waters to thirty fishing vessels,
through a contract signed with Mr. Ramon Sanchez Borba, a Honduran
national.103 The extent of the concession was determined in accordance
with clause 6 of the concession, which referred to a map in Annex 1. That
map indicated that the fishing area extended north of the 15 parallel. 104
By letter dated 16 January 1987 Mr. Borba provided a copy of the map to
the Honduran authorities. By 1etter dated 20 March 1987 the Minister of
Foreign Affairs of Honduras wrote to his counterpart in Nicaragua stating
that clause 6 of the concession was rejected by Honduras and should be
treated as being without effect.105 Shortly thereafter, on 7 April 1987 the
Nicaraguan fisheries authorities (INPESCA) adopted an act modifying
clause 6 ofthe concession. The modification states:
"The fishing area for each fishing boat shall be determined by
106
INPESCA in areas south of para/le/ 15." (emphasis added)
102
Statement of Bob Ward McNab Bodden, HCM, vol2, annex 86.
103 HCM, vol2, annex 121.
104
Ibid.
105
HCM, vo12, annexes 122 and 123.
106 HCM, vo12, annex 124. 118
E. HONDURAS REGULA TES IMMIGRATION IN THE AREA
6.51. The Honduran islands now claimed by Nicaragua have long been
inhabited and subject to the municipal, regional and national government of
Honduras. Honduras has lo1g controlled the flow of immigration into the
area north of the 15 h parallel. The population which resides or is
economically active in the area comprises Honduran nationals or nationals
of third States (in particular Jamaican nationals and also sorne Nicaraguan
nationals) who have been authorised by Honduras to live or work in the
area. At )east four of the islands claimed by Nicaragua sustain (or have
sustained) permanent populations: Port Royal Cay, South Cay, Savanna
Cay and Bobel Cay. The Honduran authorities maintain details of
foreigners living in Honduras, and these lists routinely include information
107
on foreigners living on the islands now claimed by Nicaragua.
6.52. More than thirty men and women live on Savanna Cay during the
fishing season, of whom more than half are Jamaican nationals and the rest
Honduran nationals (Plate 16). 108 Nicaraguans have also lived on the island
but, like the Jamaicans, only where authorized by the relevant Honduran
authorities (see below).
6.53. Sorne of the Honduran nationals now living on Savanna Cay have
109
been active in the area for more than 30 years. Other Honduran
fishermen, now retired, describe their activities in the area going back more
110
than 40 years. The Jamaicans now living on Savanna Cay have
immigrated to the area with the authorisation of the Honduran
107
See for example List of Residents in the Departments of Gracias a Dios and Bay
Islands, lssued by the General Division of Population and Migratory Policy of
Honduras on 14 October 1999, HCM, vol2, annex 147. See Notes No. 899-99 DG and
No. 901-99-DG addressed by the Director of Population and Migratory Policy of
Honduras to the Minister of the lnterior on 30 November and 2 December 1999,
respectively, relating to immigration movementsthe area north of parallel 15, HCM,
vol 2, annexes 148 and 149; and report from the Regional Delegate on Migration, Mr.
Harley Seision Paulisto, to the Director General on Population and Migratory Policy on
an on-site visit to the cays, Note N.007-99 Dated 31 March 1999, HCM, vol 2, annex
146.
108
See also HCM, vol 3, Plate 30.
109
See Statement of Maurice Gowe, HCM, vol 2, annex 67; Statement of Selvin
McKennly Johnson, HCM, vol 2, annex 68.
llO See Statement of Daniel Solabarrieta Armayo, HCM, vol 2, annex 82; Statement of
Herbert Balder Hyde Carter; HCM, vol 2, annex 83; Statement of Charles Lindbergh
Dixon Jackson, HCM, vol 2, annex 85. 119
111
authorities, or work in the area duly authorised by Honduras. 112 Their
residence on the cays in question (Savanna Cay and South Cay) has been
113
formally recognized. Such residence is also recognized in other official
documents, such as applications for registration of fishing vessels. 114 Non
Honduran nationals wishing to fish in and around the islands are required to
obtain a work permit. These are granted by the municipality of Puerto
Lempira (Corporaci6n Municipal de Puerto Lempira). They have been
granted to Jamaican nationals. 115 Work permits have also been granted to
116
Nicaraguan nationals.
6.54. The current Immigration Officer with responsibility for the area,
including the islands, has confirmed that he travels regularly throughout the
Department of Gracias a Dios, including the islands now claimed by
Nicaragua. In his deposition he states that:
"he has visited the Cays three or four times during the years [1997,
1998 and 1999]; he has visited South Cay and Savanna Cay; in
these visits he has verified that most of the people that live in the
cays are Jamaican and there are 2 or 3 persans from Nicaragua;
they are not legal residents and most of them are Jamaicans that
live with women from Honduras and have Honduran children;
they have received temporary permits until they sort out their legal
residence; the Nicaraguans have been there since [1982] and they
have also received temporary permits until they obtain their legal
residence as they also live with Honduran women and have
Honduran children [... ]
Ill
See report from the Regional Delegate on Migration, Mr. Harley Seision Paulisto, to the
Director General on Population and Migratory Policy on an on-site visit to the cays,
Note N.007-99 Dated 31 March 1999, HCM, vol2, annex 146.
112
Statement of Everton Anthony, HCM, vol 2, annex 66; Statement of Maurice Gowe,
HCM, vol 2, annex 67; Statement of Angela Green de Johnson, HCM, vol 2, annex 77.
113
See for example the Attestation of the Regional Agent for Migration of Puerto Lempira
issued on 7 January 2000 on behalf of Linford Wilson, Alpha Athens Mackay, James
Calbert Heath, Aldon Perth Bailey, Anthony Litzroy Woodhey, Seabert Gray (ali
resident on SavannaCay), 7 Jlanuary2000, HCM, vol 2, annex 150.
114
See Applications for Registration of a Small Vessel by Victor Vasell and by Donald
Moxan, HCM, vol2, annexes 127 and 128.
115
See for example Temporary Work Permits, issued by the Municipality of Puerto
Lempira, Department of Gracias a Dios on 6 and 10 January 2000, to Jamaican
fishermen David Anthony Pacrchmentand James Heath to carry out fishing activities in
South and Savanna Cays, HCM, vol 2, annex 125.
116
See for example Temporal"'; Work Permits, issued by the Municipality of Puerto
Lempira, Department of Gracias a Dios on 6 and 10 January 2000, to Nicaraguan
fishermen Anthony Richard Deffis Fax and Darwin Leslie Dalex to carry out fishing
activities in South and Savanna Cays, HCM, vol2, annex 125. 120
In arder to work in the Cays, the Town Hall of Puerto Lempira
issues a provisional work permit to the Jamaicans and Nicaraguans
as at present there is no employment office open in Puerto
Lempira; in the course of his duties as a Delegate of Migration, he
is not aware that the Jamaicans and Nicaraguans who occupy the
Cays hold any documentation issued by Nicaragua for their fishing
activities,as they only have the documents provided by
117
Honduras;"
6.55. The Immigration Officer has further stated that boats from the Bay
Islands apply for and obtain export licences in Roatan and Guanaja for fish
caught around the cays, and that boats which are registered in Puerto
Lempira are granted export licences by the Customs Supervisor in Puerto
. 118
Lemp1ra.
6.56. The residents of the cays (whether Honduran, Jamaican or
Nicaraguan) recognise the authority of Honduras over them, and have long
119
done so. One fisherman describes the situation as follows:
"I am of Jamaican nationality, for most part of the year 1am living
in Savanna Cay in Honduras, and the rest of the year 1 live in
Jamaica [... ]1am a fisherman. I have been coming to this side,
within the Honduran waters around Savanna Cay, for more than
thirty years. 1 have worked on a boat since 1 was a child -
approximately as from the age of 15. I fish sea fish in this area
and 1 obtain much fish, and as a result there exists an important
Jamaican fishing community that has been coming here for
approximately thirty-five years. This is also the reason why the
people on the Honduran coast sometimes cali this "Jamaican
Cay". Savanna Cay is in Honduras and not in Nicaragua. We
have always known that south of Parallel120 is Nicaragua, and the
northem side of this pointis Honduras."
117 Statement of Harley Seision Paulisto, HCM, vol 2, annex 71. For an example of
periodical reports on on-site visits by this Regional Delegate on Migration, see HCM,
148 and 149.
118 vol 2, annexes
Statement of Harley Seision Paulisto, HCM, vol 2, annex 71.
119 Statementof Selvin McKennly Johnson: 'The eiders in the fishing community have
always tolds that this is Honduras. Everybody that 1know have always told me that
these islands belong to Honduras, and nobody knows any other different sovereignty.
Likewise, my parents, who also formed parte fishing community, knew that these
islands belong tonduras." HCM, vol2, annex 68.
120 Statementof Maurice Gowe, HCM, vol 2, annex 67. 121
6.57. Honduran citizens have lived at different times in South Cay. In
December 2000 the Dominguez family was living on the cay, but were
forced to leave when it was ransacked by Nicaraguans. In July 2001 the
Dominguez family returned to the cay and started rebuilding the houses that
had been destroyed.
6.58. Bobel Cay has also sustained a population in the past, although it
currently does not do so. There are numerous reports that guano has been
1 121
exploited on Bobel Cay since the middle of the 19 Centhry. More
recently guano has been exploited from Bobet Cay and exported to the U.S.
ln his deposition, ninety- oylc~Daniel Bordas Nixon describes how he
used to go to Bobel Cay in the 1920s:
"(...] he traveled there with his father when he was around twelve
years of age to extra-ct sorne dung samples which they cali -
guano- from marine birds in the hope of exporting it to the United
States, but at the end nothing came of it; but he is aware that there
had been exports in the past of guano to the United States, and
122
there were remains of guano extraction (a lagoon)."
6.59. By contrast Nicaragua has provided no evidence that it has ever
applied its immigration laws to the islands or otherwise sought to regulate
the activities of the populations residing on them. Indeed, Nicaragua's
Memorial suggests that she appears to be entirely unaware of the economie
activities which have been çentred around the islands it now claims.
F. HONDURAS CARRIES ÜUTMILITARY ANDNAVALPATROLS IN THE
AREA, As WELL As SEARCH AND RESCUE ÜPERATIONS
6.60. It will be apparent from the previous sections that Honduras has
carried out naval and other patrols to enforce Honduran laws in the area
now claimed by Nicaragua. These patrols have been undertaken since 1976
(Plate 15). These patrols have a number of objects, including in particular
the enforcement of fisheries laws and the maintenance of security in
Honduras, including immigration laws. The Immigration Officer has
deposed that he has participatedin two patrols to the islands with the Navy,
to enforce immigration laws. 123The Port Supervisor at Puerto Lempira has
121
See e.g. Resolution Concerning a Concession for Exploiting Guano and Other
Substances. Granted to Mr. Jacob Baiz, Official Gazette of Hondur5sJune 413 of
1888, HCM, vol 2, annex 169.
122 Statement of Daniel Bordas Nixon, HCM, vol 2, annex 70.
123
Statement of Harley Seision Paulisto, HCM, vol 2, annex 71. 122
also stated in his deposition that he has patrolled with the immigration
authorities and other authorities from the area and has visited ali the cays in
124
question. One fisherman who has fished in the region for more than
forty years describes the situation as follows:
"In reality, 1 have never had any serious problems with the
Honduran fishing authorities. Once you obtain a licence it is
necessary that you carry it with you at ali times, so asto be able to
show it in the event that the Honduran patrol boats requests such.
But I have never been asked to show [it], given that the majority
of the patrol boats know me and my vessel." 125
6.61. The Director of the Regional Department of Fishery in Gracias a
Dias confirms his department's rote in enforcing fisheries permits when the
126
Naval Force is unable to do so. He also states:
"during the term of his office no Nicaraguan authority has
attempted to regulate the fishing activities in the Cays and whilst
holding office he is aware that only Honduran Patrols from the
Naval Force caver the area of the cays, and during the Closed
Season it is the Honduran Merchant Navy that supervises and
127
contrais the fishing activities".
6.62. Naval patrols by Honduras commenced in 1976, when the Navy
was established. Since that date naval patrols have been carried out on a
regular basis in the waters north of the 15 parallel, which has been treated
as the maritime boundary between Honduras and Nicaragua. In sorne cases
(always after 1982) the patrols are reported to be responding to incursions
128
by Nicaraguan vessels, including military vessels. In other cases the
124 See Statement of Fabian Flores Ramirez, HCM, vol 2, annex 73.
125 Statement ofSelvin McKennly Johnson, HCM, vol2, annex 68.
126
Statement of Ramon Antonio Nell Manister, HCM, vol2, annex 72.
127
Statement of Ramon Antonio Nell Manister, HCM, vol 2, annex 72.
128 See e.g. logbook of the Hibueras, entries of 18 September 1982 (incident at Bobel
Cay}, April 1983 (incident at Bobel Cay}, 9 September 1983 (incident at 15°02'00"N
82°30'00"W), 6 November 1983 (incident at 15°01'OO"N82°58'00"W). HCM, vol 2,
annex 129; Note dated 21 March 1982, addressed by the Chief of the Honduran Armed
Forces to the Minister of Foreign Aflàirs of Honduras Regarding an Incident with
Sandinista Patrol boats in Bobel and Media Luna Cays, HCM, vol 2, annex 139; Report
dated 9 December 1982, addressed to the Commander in Chief of the Honduran Navy
about an Incident with a NicaraguanPatrol boat in the Bobel Cay Area, HCM, vol 2,
annex 140. See also Report of 19 April 1983 by the Commander in Chief of the
Honduran Navy about an Incident with a Nicaraguan Patrol boat at 15°10'00"N
82°40'00"W, Document 6-47 deposited with the Registry; Report of I2 September 1983
by the Head of Intelligence of the Honduran Armed Forces about an incident at
I5°02'00"N 83°30'00"W), Document 6-48 deposited with the Registry; Report of I6 123
patrols are routine. Since 1986 two patrol boats -the Hibueras and the
Honduras - have carried out routine patrols, visiting inter alia Bobel Cay,
Savanna Cay, South Cay and the Alargado Reef, as weil as the Rosalind
and Thunder Knoll Banks. Patrols by these military boats serve a number
of functions in the waters around the islands and banks, including
129
inspecting Honduran fishing boats and catches 130 - and occasionally 131
arresting ships fishing or trading illegally, assisting boats in distress,
and providing injured fishe1men and sailors with first aid or taking them to
medical facilities in Honduras. 132 These patrols have also provided
October 1983 by the Commander in Chief of the Honduran Navy about an Incident at
15°04'00'N, Document 6-49 deposited with the Registry; Report of 17November 1983
by the Head of IntelligenΠof the Honduran Armed Forces about an incident at
l5°0l'OO'N 82°85'00"W), Document 6-50 deposited with the Registry; Report of 8
December de 1983 by the Commander in Chief of the Honduran Navy about an
incident at l5°03'00'N 83°08'00"W, Document 6-51 deposited with the Registry;
Report of 14 December 1983 by the Head of Intelligence of the Honduran Armed
Forces Affairs aboutn incid·entat l5°03'00'N 83°08'00"W),Document 6-52 deposited
with the Registry.
129
See e.g. Logbook of the Honduras. Naval Base of Puerto Castilla (Patrolling of 16
November 1988 at l5°18'25'N 82°35'00"W, around Media Luna and Bobet cays),
HCM, vol 2, annex 133; Logbook of the Honduras. Naval Base of Puerto Castilla
(Patrolling 17 and 18 April 11989at Media Luna and South cays), HCM, vol2, annex
134; Logbook of the Honduras. Naval Base of Puerto Castilla (Patrolling of 20-26 and
30 October 1990 at l5°06'00'N 83°18'00"W), HCM, vol 2, annex 135; See generally
"Annuai Report of Organisation, Operations and Training No.11" of the Naval Base of
Puerto Cortés.Period Covered: from December 1987 to December 1988 (Patrolling the
Rosalinda's Fishing banks), HCM, vol 2, annex 136. See also Logbook of the
Honduras. Naval Base of Puerto Castilla (Patrolling of 10-13 February 1989, around
Media Luna and Bobet cays). Document 6-53 deposited with the Registry; Logbook of
the Hibueras. Naval Base of Puerto Castilla (Patrolling of 14 and 15 January 1990 at
15°05·66"N 82°38·64"W), Document 6-54 deposited with the Registry; Logbook of the
Hibueras. Naval Base of Puerto Castilla (Patrolling of 16, 17, and 18 June 1990 at
l6°18'74'N 80°40'26"W, Rosalind Bank), Document 6-55 deposited with the Registry;
Logbook of the Honduras. Naval Base of Puerto Castilla (Patrolling of20-24 May 1991
at l5°16'00'N 82°38'00"W), Document 6-56 deposited with the Registry; Logbook of
the Hibueras. Naval Base of Puerto Castilla (Patrolling of 3 November 1987 at South
Cay), Document 6-57 deposited with the Registry.
130
US vesse! Captain Bill was arrested, on 14 May 1988, at l6°20'N 80°09'W with 3,000
pounds of lobster and no permits, Report of the Naval Squadron of the Atlantic of
Puerto Cortésof 23 May 1988, HCM, vol 2, annex 132; Report of 23 September 2000
to the Naval Commander of the Honduran Naval Base of Puerto Castilla, regarding the
Capture of a Nicaraguan Vesse! while Engaged in Illegal Activities to the North of the
15° Parallel (l5°09'N 82°12'), HCM, vol2, annex 141.
131 See e.g. Logbook of the Hibueras. Naval Base of Puerto Cortés(Patrolling of6, 7 and 8
August 1986 and 6 May 1987 at South and Bobet Cays). HCM, vol2, annex 130. See
also Logbook of the Hibueras (Patrolling of 18 January 1989, describing rescue of
fishing crew at South Cay), Document 6-58 deposited with the Registry.
132
See e.g. Logbook of the Hibueras. Naval Base of Puerto Cortés(Patrolling of6, 7 and 8
August 1986 and 6 May 1987 on an incident at South Cay), HCM, vol 2, annex 130. 124
assistance to distressed foreign vessels in these Honduran waters. 133 In at
!east one case a distressed Nicaraguan sailing boat was located at
l5°00'10"N and 82°50'W and towed to the maritime boundary at the 15 1h
134
parallel. More recently, since 1995, special patrols have been conducted
with three objectives: to ensure that Nicaraguan vessels do not enter
Honduran waters and harass or apprehend Honduran fishing vessels; to
prevent and control narco-trafficking activities; and to ensure that duly
authorized fishing vessels respect Honduran fisheries conservation
135
measures.
6.63. By contrast, it is plain that Nicaragua does not - and does not
purport to - enforce its fisheries or other laws in the area north of the 15 1h
136
parallel. Nicaragua has provided no evidence that prior to 1982 it
patrolled, or sought to patrol, any part of the waters north of the 15 1h
parallel. The situation changed only from 1979 with the coming to power
ofthe new Sandinista Government ofNicaragua. 137
See also Logbook of the Hibueras. Naval Base of Puerto Cortés(Patrolling of 5 April
1987, describing incident in Media Luna Cay), Document 6-59 deposited with the
Registry.
133 Logbook of the Hibueras. Naval Base of Puerto Cortés (Patrolling of 6 May 1987,
assisting a United States registered vesse! originating from Newport, Rhode Island, en
route toPanama, which had run aground on Alargado Reef), HCM, vol2, annex 130.
134 See Logbook of the Honduras. Naval Base of Puerto Cortés(Patrolling of 21 October
1990, involving the Blanca Esters with a Nicaraguan crew), HCM, vol2, annex 135.
135 See e.g. OperationsOrder N.003-95 of the Naval Base of Puerto Castilla (Patrolling of
February 1995 at Bobel Cay. Cabo Falso Cay, Cape Gracias a Dios and La Mosquitia),
HCM, vol 2, annex 137; Operations Order N.Ol-97 of the Naval Base of Puerto Castilla
(Patrollingof December 1997 on Areas including Bobel, Savanna Cay and South Cay,
Alargate Reef and Rosalind and Thunder Knoll banks), HCM, vol 2, annex 138; Annex
"E" Resolution N.06-2000 to Operations Order N.21-2000, Conceming the
Preservation of Fishing Natural Resources, lssued by the Naval Base of Puerto Castilla.
(Diagram of Operations Annexed), HCM, vol 2, annex 142. See also Order 004/98 of
the Fuerza Naval. 4 March 1998, (patrolling at Bobel, Savanna Cay and South Cay,
Alargate Reef, and Rosalind and Thunder Knoll banks), Document 6-60 deposited with
the Registry;Order 15/99 of the Honduran Navy, 21 September 1999, (patrolling at
Bobel, Savanna Cay and South Cay, Alargate Reef, and Rosalind and Thunder Knoll
banks), Document 6-61 deposited with the Registry; Order 003/96 of the Honduran
Navy, 13 August 1996, (patrolling at Media Luna Cay and Alargate Cay), Document 6-
62 deposited with the Registry.
136 See Statement of Ramon Antonio Nell Manister, HCM, vol 2, annex 72.
137
See Statement of Gabriel Echeverria Arrechavala, HCM, vol 2, annex 75 ("'henever
encountered any Nicaraguan fishing boats in the area north of Parallel 15°; it is only
now that problems have arisen with the Sandinists because the Nicaraguan patrols
invade the area north of Parallel 15°; he further deposes that the Nicaraguan authorities
have never granted fishing perrnits north of Parallel 15°''); Statement of Santos
Calderon, HCM, vol 2, annex 78 ("such activities have always been regulated by the 125
G. HONDURA.S ENGAGES IN PUBLIC WORKS
AND SCIENTIFIC SUR VEYS IN THE AREA
6.64. Honduras has carried out public works on the islands, including
Bobel Cay, South Cay and Savanna Cay, which have involved the activities
of- and recognition by- third States.
6.65. For example, in 1976 Honduras entered into an "Arrangement"
with the United States for Hydrographie and Nautical Cartography between
the Agencies of the Republic of Honduras and the United States of
America. According to this 'Arrangement' the national agencies of the
Honduran and United States Governments agreed to participate in surveys
of "the ports and coastal waters of the Republic of Honduras and to the
publication of nautical charts of these areas" . 138 Pursuant to this
arrangement, in 1980 and 11981 triangulation markers (for the purposes of
establishing satellite observation stations for navigational and other uses)
were placed on Savanna Cay (with the name "Logwood" on the marker),
South Cay and Bobel Cay by the Inter-American Geodetic Survey of the
Defence Mapping Agency of the United States: see Plates 16, 17, 18. For
each of these triangulation markers a report was prepared (Summary of
Satellite-Observed Stations), and in each case the Summary identifies the
location of the island (by detailed geographie coordinates) and states that
the marker is located in Honduras. 139
6.66. Beyond the markers, Honduras has promoted the installation of
navigational aids and demarcation deviees in the area, such as lighthouses
an d demarcatwn. buoys. 140
Hondurans and as to incidents with Nicaraguan patrols he is only aware that severa!
incidents took place when the Sandinists werepower").
138 See Arrangement for Hydrographie and Nautical Cartography between the Agencies of
the Republic of Honduras and the United States of America, Signed at Tegucigalpa on
30 August 1976. Attachment 1: US Naval Oceanographie Office. General Instructions.
Harbor Survey Assistance Program (HARSAP). Annex A: U. S. Naval Oceanographie
Office. Horizontal Control. A10201 Triangulation, HCM, vol 2, annex 152.
139 See Summaries of Satellite··ObservedStations Effected in Accordance with the 1976
Arrangement for Hydrographie and Nautical Cartography between the Agencies of the
Republic of Honduras and the United States of America (triangulation markers on
Bobet, Logwood and South cay), HCM, vol 2, annex 154. See Notarial Certifications
lssued in Bobet, Logwood and South cays, requested by the Director of Demarcation
and Boundaries Maintenance of the Ministry of Foreign Atfairs of Honduras. Certified
Copies of 16 February 2000, HCM, vol 2, annexes 94-96.
140 See Report dated 13 May 1980 addressed to the Commander of the Naval Base of
Puerto Cortes Regarding the Installation of Beacons and Buoys in Vivorillos Cays,
Gorda Bank, Cayo Pichon and Others Located North of the 1h Parallel, HCM, vol 2, 126
6.67. Honduras has also carried out scientific surveys in the area, or
perrnitted third parties (including intergovemmental organisations) to carry
out such surveys. In 1970 the UN Food and Agriculture Organisation and
the United Nations Development Programme supported a Regional Project
for the Development of Fisheries in Central America, involving the
Govemments of Honduras and Nicaragua and four other States in the
Region. The Project involved a programme of general investigations
aiming to research spiny lobster (Panulirus Argus) in Honduran and
Nicaraguan waters. The Report ofthose investigations describes the results
of investigations in Honduras in
"an off-shore area with a surface of about 6.500 square miles,
East-North-East of Cabo Gracias a Dias, between141,00 and
16,00 N and ending at 81,00 Win the East".
The Report on this part of the investigation in Honduras concluded:
"The edge of the continental shelf, between 15,00 and 15,20N,
seems to possess an interesting commercial population from 25
142
dawn to 120 fathoms."
The Report also addresses similar activities in Nicaragua. Ali the
investigations referred to as taking place in Nicaragua occurred south of the
15 parallel. 143
H. THIRD PARTIES RECOGNISE HONDURAN SOVEREIGNTY AND
JURISDJCTION IN THE AREA
6.68. Beyond the recognition by inter alia fishermen and oit companies
of the 15 1h parallel as the maritime boundary between Honduras and
Nicaragua, a number of States have recognised Honduran sovereignty and
jurisdictional rights over the islands and waters north of the l5 h parallel.
The recognition of Jamaica, for example, is reflected in the activities of its
nationals who have fished in these waters for many years, duly licensed by
the Honduran authorities, and by the export to Jamaica of fish caught in
annex 145. See also on buoys Working Plan of the National Port Authority, Il July
1980, HCM, vol 2, annex 155.
141
Document "Exploratory and Simulated Commercial Fishing Operations in the Western
Caribbean Sea. R/V "CANOPUS", May to November 1970" by Marcel Giudicelli,
CCDO-FAO-UNDP, San Salvador 1971, at p 60, HCM, vo12, annex 163.
142
Ibid,p 63.
143 Ibid, pp 69-75.Savanna Gay and Triangulation Station Dise (Photograph taken February 2000)
Plate 16Plate 17South Cay and Triangulation Station Dise (Photograph taken February 2000}
Plate 18 127
those waters. 144 Jamaica's recognition is also reflected, more formally, in a
request it made in 1977 to have access to Honduran waters to rescue twelve
Jamaican nationals who were shipwrecked in Savanna Cay. 145
6.69. Until the Sandinista Government took over in 1979, the practice of
Nicaragua was to treat the 15 parhllel as the traditional maritime border. 146
6.70. The recognition of the United States is reflected in numerous
activities carried out by the United States in and around the islands. These
activities include the installation of triangulation markers pursuant to the
147
1976 Honduras/United States Arrangement, and drug enforcement
operations carried out joint] y by Honduras and the United States in 1993. 148
Indeed, the United States treats as Honduran ali the islands and banks now
claimed by Nicaragua whkh are located north of the 15 parallel. 1h Such
recognition is reflected in a 1943 Report on "The fisheries and the fishery
resources of Honduras" of the Fish and Wildlife Service of the US
Department of the Interiot· and the Office of the Coordinator of Inter
American Affairs, which identifies among others fishing banks Gorda,
149
Rosalind and Thunder Knoll. Similarly, the 1983 Report (3rdedition) of
the US Board on Geographie Names 150identifies inter alia the following as
being located in Honduras: South Cay, Bobel Cay, Media Luna Cay (which
is Savanna Cay), and the Arrecifes (reefs) de la Media Luna. By contrast,
none of the islands and reefs claimed by Nicaragua are identified in the
1985 Gazetteer of Nicaragua (published by the US Defense Mapping
151
Agency, Washington OC) as being in Nicaragua. lt is to be noted that
the reports of the US National Imagery and Mapping Agency and the US
Board on Geographie Names are partially based on Honduran and
144
See supra paras 6.35-6.36, and 6.46.
145 See Note No. 320-SAC of 25 February 1977, from the Under-Secretary of Foreign
Affairs of Honduras to the Minister of Defence of Honduras, HCM, vol 2, annex 19.
146 See Notarial Certification lssued on 5 June 2001. (Deposition by Roberto Arita
Quiii6nez and others concerning a meeting held between Honduras and Nicaragua on
12 Ju1y 1982, HCM vol 2, annex 97. ("On the prob1emsregarding the Atlantic Ocean,
both delegations accepted that they have always respected parallel 14°59'08"(known as
parallel 15) as the traditional line delimiting the maritime boundary between the two
Republics"). See supra paras 6.37-6.42.
147
See supra para 6.65.
148 See supra para 6.21.
149
See supra para 6.31.
150
See HCM, vol 2, annex 167.
151 See HCM, vol2, annex 168. 128
152
Nicaraguan official inforrnation. There is no evidence that Nicaragua
has ever objected to these US Reports, notwithstanding the fact that she
contributed to their preparation and .ispresumably weil aware of them.
6.71. Similarly, the Gazetteer of Geographie Features updated 153the US
National lmagery and Mapping Ageney in October 2000, identifies the
following cays as being part of Honduras: South Cay, Bobel Cay, Port
Royal Cay, Porpoise Cay, Savanna Cay, Cayo Media Luna and Arrecifes
de la Media Luna (also called Half Moon Cay and Reefs), Burn Cay, False
Cape Shoal and Bank and Logwood Cay. The southernmost island Iocated
within the territory of Honduras is one Hara Island at 15°00'N; the
northemmost insular feature attributed to Nicaragua appears to be at San
Pio Island at 14°59' N. Such recognition is also reflected in the 1995
"Sailing Directions" for the Caribbean Sea issued by the US Defense
Mapping Agency, which divides the areas in dispute into 2 sectors. Sector
5 includes the coasts of Panama, Costa Rica and Nicaragua and Sector 6
sets out the coasts of Honduras, Guatemala, Belize and Mexico. The
Sectors are divided along the 15 parallel from Cape Gracias up to the 81 st
meridian. The description of Sector 5 does not include any of the insular
features in dispute. By contrast, the description of Sector 6 relating to the
Honduras Coastline includes references to the "N. part of the Miskito
Bank" and includes Arrecifes de la Media Luna (Half Moon Reef),
Logwood Cay, Cayo Media Luna, Bobel Cay, Hall Rock, Savanna Reefs,
South Cay, Alargate Reef(Arrecife Alargado), Main Cape Shoal, and False
154
Cape. Charts published in 1993 by the British Hydrographer of the
Navy, do not appear to divide the relevant coasts along maritime
boundaries, but the insular features in question are included in the British
Pilot in a subsection entitled "Cabo Gracias a Dios to Cabo Falso," Cabo
Falso being in Northern Honduras. 155
6.72. Other forrns of recognition are expressed for example by means of
requests by third States to the Govemment of156nduras to authorise their
aircrafts to fly over Honduran territory, or through diplomatie action on
152 See HCM. vol 2, annexes 167 and 168, which state: "Wherever possible, gazeteer
production is carried out with the cooperation of the concemed country."
153
See the website of the US National Imagery and Mapping Agency at
http://gnpswww.nima.mil/geonames/Gazetteer/Search.
154
See See Sailing Directions (Enroute), Caribbean Sea, vol Il, Defense Mapping Agency,
5'hEd (1995), p 93 et seq, Document 6-63 deposited with the Registry.
155
See See East Coast of Central America and Gulf of Mexico Pilot, Hydrographer of the
Navy, 2nd Ed (1993), p 72et seq, Document 6-64 deposited with the Registry.
156 Transcription of diplomatie note from the Embassy of the Republic of Argentina to the
Ministry of Foreign Affairs of Honduras requesting authorisation to fly through 129
behalf of its own nationals, such as the inquiry by the US regarding a vesse!
of its flag that supposedly had been fired at by Honduran patrols at
15°1 O'N 83°1 O'W. 157
1
6.73. Finally, recognition that the 15 h parallel represents the boundary
between Honduras and Nicaragua is reflected in the activities of
international organisations. For example, in its work identifying fisheries
1
stocks in the Caribbean Sea the FAO has relied on the 15 158parallel as the
maritime boundary betwe H~onduras and Nicaragua. There is no
evidence that Nicaragua, which participated in this FAO project, objected
to the approach taken by the F AO. Recognition by other international
organizations is reflectedinter alia in the activities of UNDP 159and the
160
lnter-American Development Bank.
6.74. Recognition ofHonduran sovereignty andjurisdiction over the area
is not limited to governments and international organisations. Private
companies also have recognized Honduran sovereignty in the area north of
the 15 h parallel, for example in requests for authorization to carry out
161
research on ancient shipwŒcks.
1
6.75. In contrast to this evidence confirming that the 15 h parallel
constitutes the maritime boundary between Honduras and Nicaragua, and
that the islands lying to the northfthat parallel are without exception part
of Honduras, Nicaragua has provided no evidence in its Memorial
indicating any third partyr~:cogn oftis olim.
position 15°1TN 82°W en route between the US and Argentina, 30 October 1975,
HCM, vol 2, annex 143.
157
Diplomatie note No. 106 of the Embassy of the United States of America, 27 June
1978, HCM, vol2, annex 144.
158
Seesupra at paras 6.32 and 6.33.
159 Seesupra at para 6.32.
160
Seesupra at para 6.33.
161
See Note N.954-G Dated8.December 1994 addressed by the General Manager of the
Honduran lnstitute Anthropology and History to the Commander of the Naval Force
of Honduras (Regarding Permission Requested by the Company Research and
Recovery !ne.or Searching Remains of Spanish Galleons North of hhe 15 Parallel),
HCM, vol2, annex 157. 130
1.HONDURAS HAS CONSISTENTLY ÜBJECTED TO ANY CLAIMS
BY NICARAGUA To THE AREA NORTH OF PARALLEL 15
6.76. Until 1980 Nicaragua's practice was consistent in recognizing
Honduran sovereignty and jurisdiction over the islands and maritime areas
north of the !5th para!lei. That practice changed in 1980. As described in
Chapter 3, when Honduras has leamt of any claim by Nicaragua, or any act
which might support or evidence such a claim or belief, to any area north of
the !5th parallel, she has responded by formai diplomatie protest. Those
protests have generally been addressed to the Ministry of Foreign of Affairs
of Nicaragua, 162and have also on occasion been raised by Honduras before
163
the United Nations Security Council.
III. CONCLUSIONS
6.77. By way of conclusion it may be seen that Honduras' effective
administration of the area north of the !5thparallel is reflected in her long
standing (and until recently, unchallenged) application and enforcement of
its laws and regulations and the regulation of economie activities in the
area. By contrast Nicaragua has provided the Court with no evidence that
she has ever applied (or even sought to apply) any of its laws or regulations
to the area north of the !5thparalie! and has never sought to regulate oil, gas
and fisheries activities in that area. Honduran nationals live and work on
the islands in the area; foreign nationals (including Nicaraguans) live and
work on the islands only where duly authorised by the Honduran
authorities. Specifically, and in contrast to Honduras' activities within the
area, Nicaragua has within the area:
• never exercised administrative control or applied its
legislation or laws;
• never applied or enforced its criminal or civillaws;
• never regulated the exploration an11exploitation of oil and
gas activities north of the 15t parallel, and has always
limited regulation ofsuch activities to areas south ofthe 15 111
parallel;
162 See generally, Chapter 3 at paras 3.18 et seq.
163
The following Honduran diplomatie notes of protest were submitted to the UN Security
Council: No. 2176 of 18 September 1982; No. 479 DA of 17 October 1983; Note 571
DA of 14 November 1983; No. 053-DA of29 January 1985 (see HCM. vol2, annexes
25, 30, 33 and 40); No. D55-502 of 20 September 1982; No. 228-DSM of 15 April
1983 and No. 426-DA of29 August 1983 (see NM, annexes 19-21 and 102). 131
1
• never regulated fisheries activities north of the 15 parahlel,
and has always limited regulation of such activities to areas
south of the 15 \
• never regulated immigration;
• never carried out and search and rescue operations and has
been met with objections from Honduras on the few
occasions its vessels have entered the area;
• never engaged in public works and scientific surveys; and
• made no formai claim to sovereignty and jurisdiction before
its Application of 9 December 1999.
6.78. Moreover, no third State or other party has recognised Nicaraguan
1
sovereignty or jurisdiction over the area north of the 15 h parallel.
Nicaragua has not shown any conduct by its authorities in the area such as
to demonstrate any exercise:- whether effective or otherwise - of territorial
jurisdiction. ln the circumstances, Nicaragua has shown no basis upon
which to make her present daim, and cannot now properly and lawfully do
so. CHAPTER 7
THE APPLICATION OF THE RELEVANT
CIRCUMSTANCES AND THE COURSE OF THE SINGLE
MAIUTIME BOUNDARY
I. INTRODUCTION
7.1. The Court has always made it clear that the determination of an
equitable result requires1account to be taken of ail the relevant
circumstances or factors. It is the complex task of identifying, weighing,
and then balancing ali the rlevant circumstances that often proves so
difficult, for these factors vary in weight and sorne may even prove to have
little relevance. But ali must be taken into account.
7.2. The Nicaraguan M~~mori haslchosen to ignore this precept. It has
taken account of the geographical configuration of the two coasts - which
is certainly one relevant factor - and ignored many others: the long
established, traditional maritime frontier along the 15 h parallel, the
existence of Honduran islands and Honduran effectivitésjust to the north of
this parallel, the delimitations already made in the area under the 1928
Nicaragua /Colombia Treaty and the 1986 Colombia/Honduras Treaty.
7.3. To compound this error, Nicaragua relies on a ba2hymetrie
argument (the Nicaraguan Rise) of dubious authenticity which has been
legally irrelevant for nearly twenty years; on a claimed security need 3
which, if it has marginal, lt:gal relevance as a concept, has no basis in fact;
and on a list of "equitable criteria" which amount to no more than a plea
for a greater sharef the offshore resources.
Malta/Libya, ICJ Reports 1985, p 38, para 45:
"Judicial decisions are at one- and the Parties themselves agree- in holding that
the delimitation of a continental shelf boundary must be effected by the
application of equitable principles in ali the relevant circumstances in order to
achieve an equitable result."
The same pointis made in the Dispositif, A(!), at p 57.
2
NM, vol 1,pp 131-133.
NM, vol 1,pp 134-136.
4
NM, vol1,p 123 et seq. 134
II. THE CIRCUMST ANCES INVOKED BY NICARAGUA
WHICH ARE IRRELEV ANT OR MISCONCEIVED
A. THE BATHYMETRie FEATURE, THE NICARAGUAN RISE
7.4. As noted earlier, this is a dubious feature with a new nomenclature.
6
Moreover, since the Court's Judgment in 1985 in Libya/Malta, it has no
relevance for delimitation, lying within 200 miles of the coast. Nicaragua
is weil aware of the Court's Judgment, but says: 7
"However, the present argument of Nicaragua is basically
different, namely that the Nicaraguan Rise is one single feature
shared by Nicaragua and Honduras, which is characterised by the
absence of any natural dividing !ines. [Para. 17]
[000]
The boundary proposed by Nicaragua respects the unitary
character of the Nicaraguan Rise, by dividing the Rise in
approximately equal halves between Nicaragua and Honduras."
[Para. 21]
The argument is facile. If Nicaragua relies on the unitary character of the
feature, this is invoking the geophysical characteristics of the feature as a
criterion for delimitation: precisely what the Court said was not to be done.
B. THE ALLEGED SECURITY NEED
8
7.5. The Court has on occasion accepted the relevance of an argument
based on security, usually to avoid a boundary which would locate shelf
areas belonging to one State too close to the shores of another State. But
the traditional boundary along the l5 h parallel does not do that. A parallel
running due east from Cape Gracias a Dios remains weil away from the
Nicaraguan coast. And the Nicaraguan Memorial is devoid of any
explanation asto how this, or any other, line could pose a threat toits own
Para 2.22 supra.
6 ICJ Reports 1985, p 35, para 39. The Court's argument was that, since the acceptance
of the '"distanceprinciple", geological or geomorphological features Jessthan 200 miles
from the coast had ccased to have any relevanccher verifying title or delimitation.
NM, pp 132-133, paras17 and 21.
8
See, for example, Libya!Malta, lCJ Reports, 1985, para 51. 135
security, or how its own proposed bisector of the angle of the two coasts
would provide greater protection to the security of both Parties.
C. THE ARGUMENT THAT "THE BISECTOR" WOULD ÜIVE TO
NICARAGUA AN EQUITABLE SHARE OF THE RESOURCES OF THE AREA.
9
7.6. This part of the Nicaraguan Memorial, whilst it abounds with
citations from the case-law, is singularly Jacking in any evidence that the
citations are relevant to this case. The notion that, in an area of
"overlapping claims", a boundary might be adjusted to avoid "catastrophic
repercussions for the livelihood and economie well-being of the population
10
[ ••• ]"is quite irrelevant to this case unless Nicaragua can show that it has
bona fide claims in the area, overlapping with those of Honduras, and that
the line claimed by Honduras would produce an economie catastrophe for
the Nicaraguan people. Nkaragua does neither. And she ignores the effect
on those living and working on and around the islands north of the 15th
parallel.
7.7. ln fact, until 1980, there had been no Nicaraguan claims to this area
north of the 15th parallel. And to this day there has never been a
Nicaraguan petroleum concession g11nted north of this parallel, or a weil
drilled under her authorization.
7.8. So far as fishing is concemed, whilst sorne unauthorised fishing by
Nicaraguan vessels has undoubtedly occurred, north of the )5thparallel, the
Honduran authorities have vigorousl12attempted to stop ali unauthorised
fishing north of the 15thparallel.
9
NM, vol 1,pp 123-130.
10 Gulf of Maine Case, US/Canada ICJ Reports 1984, p 342, para 237.
Il Para 6.27 supra.
12
Supra Para 6.60 et seq. 136
0. THE INSTABILITY OF THE MOUTH OF THE RIVER COCO
7.9. ln this case there is a relevant factor which affects not so much the
course of the delimitation line as the point from which the Court should
draw that line. Nicaragua does not ignore this factor, but misconceives its
relevance in that Nicaragua advocates starting the Court's line offshore, but
at 15°01'53"N and 83°05'36" W. 13 But this, of course, assumes the line
shou1dbe the Nicaraguan "bisector", a view Honduras cannot share.
7.1O. The Arbitral Award of 1906 defined the terminal point of the land
boundary as "the mouth of the River Coco, Segovia or Wanks, where it
flows out into the sea close to Cape Gracias a Dios, taking as the mouth o14
the river its principal arm between Hara and the Island of San Pio."
7.11. However, the constantly-changing geography of the mouth led to
difficulties in identifying this terminal point, and its exact location was
eventually agreed on 15 December 1962, at the twelfth meeting of the
Honduran/Nicaraguan Mixed Commission, established under the aegis of
the OAS: it was located at 14°59.8' latitude north and 83°08.9' longitude
west. 15
7.12. A series of Landsat images, compiled after 1979, shows that these
geographical changes have continued, moving the mouth eastwards, and
thus the 1962 location now lies weil inside what would now be described as
"the mouth" in geographical terms (see Plate 19). 16 To this extent
17
Honduras shares the view expressed in the Nicaraguan Memorial.
7.13. This is certainly a relevant factor for the delimitation. It affects the
delimitation in that the terminal point of the land boundary is the normal
starting-point for the maritime boundary. However, if the location of the
18
mouth of the river is constantly changing, as seems probable, it is
inappropriate to request the Court to draw a boundary from this point. The
13 1
NM, vo 1,p 10, para 29.
14 ICJ Pleadings, Case Concerning the Arbitral Award Made by the King of Spain on 23
15 December 1906, Vol 1, Application lnstituting Proceedings, Annex Il, pp 18-26.
NM, annex 1.
16
For a larger scale version of this image, see HCM, vol 3, Plate 19.
17 NM, p 13, para 30.
18
The instability of the coast at this point was emphasizcd in the 1962 Report of the
Honduran/Nicaraguan Mixed Commission which, in its concluding remarks, noted that
the topography of the region had undergone constant changes for many years. NM, vol
2, annex 1.. 137
boundary to be determined by the Court should be enduring, whilst
respecting both the 1906 Award and the 1962 Agreement.
7.14. The solution, in Honduras' submission, is to invite the Court to
draw its line from the current mouth of the River Coco, as agreed between
the Parties, to the 12-mile limit at a point where it intersects thh 15 parailei
(14°59.8')
III. THE RELEVANT CIRCUMSTANCES
IGNORED BY NICARAGUA
A. THE CONDUCT OF THE PARTIES
7.15. The evidence that there has been conduct by both Parties, showing
their acceptance of a particular method of delimitation, or a particular line
of delimitation - even though not formally embodied in treaty form - is
highly relevant. lt was affirmed by the Court in Libya/Tunisia in these
terms:
"The 1ine of adjoining concessions, which was tacitly respected
for a number of years, and which approximately corresponds
furthermore to the line1[..which had in the past been observed as
a de facto maritime limit, does appear to constitute a circumstance
of great relevance."9
7.16. The rationale for this approach is compelling. It is highly unlikely
that the Parties would have accepted by their conduct a boundary which
one or other thought to be inequitable. Thus concerted, voluntary conduct
must be prima facie evidence of the equitableness of the result they acted
20
upon.
7.17. As has been shown, prior to 1980, th1 Parties readily accepted the
traditional maritime boundary along the 15 hparallel. This boundary may
not have been embodied in a treaty, but then no rule of international law
requires a boundary to be based on treaty, rather than custom. The limit
may not have been absolutely precise, and it was not until 1962 that the
Honduras/Nicaragua Mixed Commission gave it an exact latitude by fixing
19 ICJ Reports 1982, p 71, para 96.
20
P Weil, The Law of MaritiDe/imitation~R e1jl9ecp258oissoubtful of its
relevance, believing this approach makes effectiveness the criterion for delimitation.
But this overlooks the fact thatis the common acceptance of the line, not its
effectiveness, which is the test. 138
accurately the terminal point of the land boundary in the middle of the
thalweg in the River Coco at 14°59.8'. But, prior to that, the Iimit was no
more imprecise than the 26 degree Iine running seawards from Ras Adjir in
the Tunisia/Libya Case. Most importantly, it was a limit observed by bath
Parties, as can be seen from the examples of their practice in the following
sections. And it was known to the fishennen who were active in the area.
(1) Oil and Gas Concessions
7.18. The details of these concessions have already been set out in
Chapter 6 above. The crucial, relevant circumstances are that, from 1965 to
1978, Nicaragua granted various offshore concessions and licences, but in
no case north ofthe 15'hpara/le/. Honduras observed the same limit in its
own concession practice (see Plates 11, 12, 13). The coïncidence is
striking. lt is hard to distinguish from the coïncidence of Libyan and
Tunisian practice in observing the 26 degree line from Ras Adjir.
7.19. Nor is it possible to see this Iine of coïncidence as anything other
than a maritime boundary. The Nicaraguan concession granted to the Pure
Oil Company (later the Union Oil Company) in 1965 described the
northem limit as "the boundary line with the Republic of Honduras, which
has not been detennined." 21
(2) Fishing Activities
7.20. As set out in great detail in Chapter 6, Honduras has exercised and
continues to exercise sovereignty or sovereign rights over a number of
sig1ificant and well-established fisheries grounds in the area north of the
15 h parallel which is now claimed by Nicaragua. Pursuant to domestic
legislation Honduras has long granted fisheries licences to its nationals and
to nationals of third States (including Nicaraguan nationals) to fish in the
area north of the 15 parallel; it has granted pennits to export fish caught in
Honduras; and has granted Fisheries concessions (to companies) and
licences (to individuals) for several decades. Finally, where the fisheries
licences or concessions have not been complied with, or where they
expired, enf22cement measures have been taken by the relevant Honduran
authorities.
21 Document 6-37 deposited with the Registry. See also para 3.41 supra.
22
For an example of a Honduran fishing logbook form (bitacora) see HCM vol 3,
Plate 31. 139
7.21. As stated earlier, third States and international institutions Iike the
F AO have also recognized Honduran jurisdiction and control over fisheries
activities north of the 15th parallel including specifically around the
fisheries banks ofRosalinda and Thunder Knoll, as weil as the Media Luna
reefs.23 Ali these factors are indicative of the overwhelming evidence that
Honduran regulation of fishing activities in the area is well-establi24ed and
uninterrupted, and that it is previously unchallenged by Nicaragua.
7.22. Nicaragua has failed to provide the Court with any evidence of its
jurisdiction over these fishing banks. There is no evidence that Nicaragua
has ever regulated, or even sought to regulate, fisheries activity in this
25
area. Further, fishermen in the area make it clear that they have rarely
encountered any Nicaraguan boats north of the 15thparallel and where they
have done so they have been immediately arrested if they were not carrying
a Honduran licence. Moreover, the Nicaraguan authorities have never
asked them for any documentation? 6 Interestingly, on the one instance
when Nicaragua did purport to grant a fisheries concession to include an
area north of parallel 15, it was withdrawn following a protest from
27
Honduras.
(3) Naval and Aerial Patrols
7.23. lt is also relevant that the waters and airspace in the area north of
the 15thparallel, which is now claimed by Nicaragua, are patrolled by the
Honduran authorities (including the Honduran Navy and air patrols). These
patrols have as their purpose the enforcement of Honduran laws and
regulations, including in particular in relation to fisheries. There are no
patrols by the Nicaraguan authorities, and there have never been such
patrols. The Honduran authorities have taken steps to enforce Honduran
fisheries and other laws, including against Nicaraguan vessels (most
recently in July 2001). Nicaragua has adduced no evidence which indicates
that she has now or ever sought to prescribe, police or enforce any of its
laws, including in relation to fisheries, in any area north of the 15th
28
parallel.
23 Supra paras 6.70 and 6.73.
24
Supra para 6.46.
25 Supra para 6.47.
26
Supra para 6.46.
27
Supra para 6.50.
28 Supra para 6.50 et seq. 140
7.24. Indeed, Nicaraguan practice in relation to the enforcement of her
fisheries laws confirms that the Nicaraguan authorities treat the 15 parallel
as the northern limit of its territory and jurisdiction over her fishing waters.
Only Honduran fishermen fishing south of the 15 h parallel have been
caught by the Nicaraguan authorities. In these cases the fishermen were
escorted to the 151h parallel and, then released by the Nicaraguan
9 30
coastguard? One such incident is reported as recently as 2000.
7.25. Based on this evidence, and on the review of a long-established,
common practice in Chapter 6, a maritime frontier running eastwards along
111
approximately the 15 parallel was well-established by 1979. No rule of
law required that the Parties should embody their agreement in formai,
written treaty form, however desirable that may be. It would be quite
wrong to allow the new Government of one Party to re-assess the "equities"
of the situation and demand a revision of the agreement, as of right, or to
argue, as Nicaragua now does, that no agreement exists and an equitable
delimitation must be established de nova.
B. THE PRESENCE OF ISLANDS
7.26. There are four islands under Honduran sovereignty lyingjust north
111
of the 15 parallel: Bobel Cay, Savanna Cay, Port Royal Cay, and South
Cay?' In the section of the Nicaraguan Memorial dealing with
32
delimitation, nothing is said about these islands.
7.27. The details ofthe many governmental acts by which Honduras has
maintained its sovereignty have already been given in Chapter 6. There is
no doubt that they are true islands. Their permanence and significance are
attested by the fact that severa) are inhabited. 33 They lie so close to the 15 111
parallel that the line cuts through a 12-mile arc of territorial sea, drawn
from the two most southerly islands.
29 Supra para 6.49.
30 s
upra para 6.49.
31
Supra para 2.3 et seq.
32 NM, vol 1,pp 138-9. However, sorne cays are mentioned at an earlier stage (at p 36),
but as Nicaraguan "islets'"forming part of the Cays of Media Luna.
33
Their permanence can also be seen from the fact that, under a 1976 Agreement between
the United States and Honduras, Triangulation points were placed on Bobel Cay,
Savanna Cay (referred to as Logwood), and South Cay, to aid accurate mapping:ra
para 6.65 et seq. 141
7.28. Thus they are true islands within the meaning of Article 121 of the
1982 UN Law of the Sea Convention and, except to the extent that the
traditional boundary precludes it, would be entitled to a territorial sea of 12
miles. They demonstrate the practicality of a boundary along the parallel,
as claimed by Honduras, and the complete impracticality of the boundary
claimed by Nicaragua. Their significance as relevant circumstances is
beyond doubt, given their location, yet Nicaragua seems to ignore them,
34
making a sweeping assertion of sovereignty over the islands, based on the
Nicaraguan Constitution, but offering no proof of the exercise of that
sovereignty. And, by a series of lengthy citations to the jurisprudence,35
Nicaragua argues that small, insignificant islands do not qualify as "base
points" where, being given "full-effect", they would distort a maritime
boundary. lt is ali irrelevant. Honduras does not use these islands as base
points, and claims neither shelf nor economie zone for the islands as such.
lts claim is based on its mainland and the long history of an established,
accepted boundary.
C. BOUNIDARY AND ÜTHER TREA TIES
CIRCUMSCRIB1NG THE RELEVANT AREA
7.29. Over many years the Courts have made clear the relevance of
maritime delimitation agrec~m e ntt,or between, neighbouring States.
In the North Sea Cases this Court stressed that an equitable delimitation
required account to be taken "[... ] of the effects, actual or prospective, of
any other continental shelf delimitation between adjacent States in the same
regwn. ,,36
7.30. Similarly, in the Guinea/Guinea-Bissau arbitration 37 the Tribunal
looked at actual delimitations off the coast of West Africain order to arrive
at an equitable delimitation consistent with the general pattern of
agreements in the region. And in Tunisia/Libya, the Court took into
account, as a relevant circumstance,
"[... ] the existence and interests of other States in the area, and the
existing or potential delimitations between each of the Parties and
38
such States [... ]"
34
NM, volt, p 36.
35 NM, vol!, pp 139-144.
36
ICJ Reports 1969, Dispositif para 101 (0),(3).
37 ILR vol 77, p 636, para 109.
38
ICJ Reports 1982, para 81. 142
The rationale for this approach is clear. Such delimitations, whether with
or between third States, can weil limit or circumscribe the maritime area
relevant to the dispute between the Parties. Moreover, the test of
proportionality (if and when applied) requires account to be taken of third
State interests, for the area to be attached to a Party must end where the
area attached to a third State begins. The relevance of these third State
delimitations will be especially acute in a semi-enclosed sea, like the sea in
this case, where the whole maritime area has to be shared by severa) States.
7.3 1. lt is a striking feature of the Nicaraguan Memorial that it pays seant
regard 39 to other neighbouring delimitations. Three delimitations are
relevant: the 1928 Nicaragua/Colombia Treaty, the 1986
40
Honduras/Co lombia Treaty, and the Jamaica/Colombia Treaty of 1993.
(1) The 1928 Nicaragua/Colombia Treaty
7.32. This agreement, 41 confirmed by instruments of ratification in 1930,
established the 82nd meridian as the limit of sovereignty between
Nicaraguan and Colombian possessions, thus confirming Colombian
sovereignty over the group of islands, the Intendencia de San Andrés and
Providencia. The 82"d meridian has been regarded by Colombia as a
maritime boundary and it was sorne fifty years later 42 that Nicaragua began
its challenge to the validity of this treaty, finally denouncing the treaty in
1980.
7.33. lt is for Nicaragua to explain to the Court why, after fifty years, the
new Sandinista Government, after one year in power, believed it had a right
to denounce a boundary treaty. Colombia has refused to accept this
denunciation, and this explains why the delimitation line agreed in the 1986
Colombia/Honduras Treaty uses the 82ndmeridian as a starting point: west
ofthat point, Colombia had no further claims.
7.34. Assuming the 1928 Agreement to remain valid (as both Colombia
and Honduras assume), the present Nicaraguan claim against Honduras
becomes virtually impossible to sustain. For the line claimed by Nicaragua,
which "continues up to the area of the seabed occupied by Rosalinda
39 Nicaragua may weil argue that a treaty is irrelevant, or even invalid. But then it must
make the argument to this Court. It cannot simply ignore the treaty.
40
Supra paras 2.13 et seq.
41 HCM, vol 2, annex 9.
42
Nwheid, in International Maritime Boundaries, ed. Charney and Alexander (1993), p
274. 143
43
Bank" is almost impossible to reconcile with the 82"d meridian.
Rosalinda Bank lies sorne: 90 miles east of the 82"d meridian, so the
boundary (if Nicaragua were right) would have to be dragged back sharply
to meet with this meridian to the south. And to link up the line claimed by
Nicaragua with the starting point ofthe 1986 Honduran/Colombian line is
almost impossible: it was never contemplated by either Honduras or
Colombia, who both assumed the area north of the approximate 15h
parallel to be Honduran waters.
44
(2) The 1986 Honduras/Colombia Treaty
7.35. This treaty is now in force, and was registered with the U.N. on 211
December 1999. The starting point of the agreed line is exactly on the 82 d
meridian. This is Point 1, and the boundary then rnoves eastwards along
the parallel of 14°59'08" which, as has been noted, results from taking the
erroneous English version of the 1963 Report of the OAS Mixed
45
Commission; the correct, authentic Spanish version reads 14°59.8'.
7.36. The crucial significance of the treaty lies in its recognition that the
maritime area to the north of the agreed line is Honduran, not Nicaraguan.
This is why Nicaragua prott t~etreate.d6
(3) The Colombia/Jamaica Treaty of 1993 47
7.37. This treaty proceeds from a recognition of the validity of the 1986
Honduran/Colombian Treaty, taking the part of the 1986 line which divides
Serranilla Bank as the western limit of the new Joint Regime Area,
established under the 1993 Treaty. The effect is that Colombia shares with
Jamaica that part of the Serranilla Bank which was recognised as belonging
to Colombia under the 1986 Treaty. lt is plainly inconsistent with the
Nicaraguan claim, which envisages aline further north, continuing into the
Rosalinda Bank, and Nicaraguan ownership of ali the waters to the south of
the line.
43
NM, vol 1,p 98, para 29.
44
HCM, vol2, annex 12. Honduran parliamentary opposition to this treaty, which delayed
ratification, was based on the view that Serranilla Bank and Bajo Nuevo were
Honduran, and should not be ceded to Colombia.
45
Paras 2.25 to 2.28 supra.
46 NM, vol 1,p 60, para 69.
47
HCM, vol 2, annex Il. 144
IV. THE LINE PROPOSED BY HONDURAS
7.38. In the view of the Honduran Govemment, an equitable delimitation
will require account to be taken of ali the relevant factors, or
circumstances, and, moreover, of the fact that there are three different
sectors of the course of the single maritime boundary requiring separate
consideration.
(1) The Territorial Sea Boundary
7.39. Honduras agrees with Nicaragua 48 that, in this sector, there are
"special circumstances" which, under Article 15 of the 1982 UN
Convention on the Law of the Sea, require a delimitation by a line other
than a strict median Iine. Certainly what Nicaragua describes as the "elbow
formation of the continental landmass" may be one such "special
circumstance", but of far greater significance is the established practice of
the Parties in treating the l5h parallel as their boundary from the mouth of
the River Coco (14°59.8'). And a further factor, of the greatest significance
for the Court's task, is the graduai movement eastwards ofthe actual mouth
of the River Coco. This is graphically illustrated by the satellite imagery
reproduced as Figure VII in the Nicaraguan Memorial (see also Plate 19).
lt means that, by February 2000, the river mouth had moved almost a mile
to the east of the point where the Honduras/Nicaragua Mixed Boundary
Commission had located the mouth in 1962.
7.40. It follows from this that the mouth of the river identified as the
endpoint of the boundary established by the Award of the King of Spain in
1906 will change from time to time. For that Award defined the endpoint
simply as " the mouth of the River Coco where it flows out into the sea
close to Cape Gracias a Dios, taking as the mouth of the river its principal
arm [... ]"49That Award is still binding and the application of its terms
requires the Parties to veritY the position of the mouth from time to time
and to agree on any necessary re-drawing of the boundary on their maps.
And it follows from that that, if the mouth of the river changes, sorne
modification of the line may be necessary until it joins the parallel of 14
degrees 59.8 minutes (14°59.8').
7.41. It is clearly undesirable to seek from the Court a line which,
however accurate it may be on the day of Judgment, becomes Jess accurate
as a reflection of the obligations of the Parties under the Award of 1906
48
NM, vol 1,pp 157-8.
49 UNRIAA, vol XI, p Ill. 145
with the passage of time. Thus prudence (and res judicata) would suggest
that the Court should not be requested to determine either the location of
the mouth of the river, or even the starting point of the line immediately
east ofthat point. The Court should begin the line only at the outer limit of
territorial waters. The actual boundary would therefore have three sections.
Section One: A straight and horizontal line following the
thalweg of the Riv(:r Coco from the point identified in 1962
by the Honduras/Nicaragua Mixed Commission to the
current mouth, where it reaches the sea as agreed by the two
Parties.5°
Section Two: A continuation of this line through territorial
waters, from the current mouth to the 12-mile limit at a point
where it intersects the parallel of 14 degrees 59.8 minutes
(14°59.8').
Section Three: An EEZ/Continental Shelf, single maritime
boundary extending from the 12-mile limit, eastwards along
the parallel of 14 degrees 59.8 minutes (14°59.8') to the
junction with the 1986 Honduras/Colombian Treaty
boundary: this sectiion to be established by the Court. This
would be the Court's main task, and covers the most
important sector, on which the following observations might
be made.
(2) The Single Maritime Boundary from the 12-mile Limit of Territorial
Waters ta the Point of Junction with the Most Westerly Point
of the Honduran/Colombian 1986 Treaty Boundary.
7.42. In the submission of the Honduran Government, and based on the
evidence and argument in this Counter-Memorial, this sector of the
boundary should be the traditional boundary along the 15h parallel
(14°59.8'), eastwards until it reaches the longitude at which the 1986
Honduran/Colombian maritime boundary begins (82°00'00").
7.43. lt will be seen that such a line would maintain the place of the
islands of Bobel Cay, Port Royal Cay, Savanna Cay and South Cay on the
Honduran side, in accordance with the long-established Honduran
sovereignty over these islands; but it would not accord to the two most
southerly islands, Bobel Cay and South Cay, a full 12-mile territorial sea.
Honduras does not seek to change this. The recognition of this parallel as a
50
This is technically part of internai waters, not territorial waters, but it is convenient to
deal with it here. 146
boundary by bath States long precedes the general recognition that such
features are entitled to a 12-mile territorial sea. Honduras, however, does
not seek to up-date this maritime frontier by claiming a 12-mile arc around
these islands, creating a deviation in the traditionalline.
(3) The Junction between the Honduran/Colombian Maritime Frontier,
Ending at Latitude 14°59'08"and Longitude 8JDOO '00"and the
Honduran/Nicaraguan Frontier along Latitude 14°59.8'00"
7.44. There is a small misalignment between the line agreed with
Colombia in the 1986 treaty (14°59'08") and the tine of the traditional
51
frontier with Nicaragua (14°59.8'00"). However, Honduras does not seek
to change or challenge the delimitation tine agreed with Columbia. This
tine was agreed between the two Parties, acting in good faith, and, unlike
the boundary with Nicaragua, there was no long history of conduct by bath
Parties, evidencing their common acceptance of a particular tine. But, as
regards Nicaragua, the Honduran claim is that the traditional boundary lies
at latitude 14°59.8'00" and Honduras asks the Court to continue that
boundary out to longitude 82 degrees.
7.45. The fact that at that point the Court's tine and the 1986 tine do not
precisely meet can be resolved by a simple "step", to be agreed upon with
Colombia. The practice of "stepping" a tine is, in fact, a fairly common
feature of maritime delimitations.
51 The discrepancy between the English and Spanish versions of the Report of the Inter-
American Peace Committee of the OAS of 16 July 1963 is addressed in Chapter 2, at
paras 2.26-2.27. CHAPTER8
CONCLUSIONS
8.1. Before presenting its formai Submissions to the Court, the
Government of Honduras briefly summarises its arguments on the issues of
law and fact.
THE OBJECT OF THE DISPUTE
8.2. The abject of the dispute, as defined by Nicaragua in its
Application, deals wholly and exclusively with the delimitation of maritime
areas. Consequently Nicaragua is bound by the very terms of its own
Application. Contrary to the approach taken in its Memorial, Nicaragua
cannat now transform this dispute into a case conceming, in substantial
part, the questionf sovereïgnty over certain islands, cays, reefs an fishing
banks. These well-known geographie features, of which Nicaragua has
been aware for many decad<!Sprior to the filing ofher Application, are only
relevant in relation to dt~termin oa heio nritime delimitation which
is the object of this case.
THE MARITIME AREAS IN DISPUTE
8.3. The maritime areas offthe coasts of Honduras and Nicaragua which
are the subject of these proceedings are those which are located in the area
north of latitude 14°59.8', traditionally referred to as thh parallel"
from Cape Gracias a Dios, north and south of the mouth of the
Coco/Segovia/Wanks River. Within that area, the so-called"Nicaraguan
Rise", which is a bathymetrie feature of dubious authenticity, is entirely
irrelevant for the delimitation of the relevant maritime area in view, m
particular, ofthe applicable law.
Pursuant to the Court's Practice Direction No II, 30 November 2001. 148
THE APPLICABLE LAW
8.4. With the 1982 United Nations Convention on the Law of the Sea
now in force between the two Parties, the law applicable to the case is the
positive customary international law of the sea, as reflected by the practice
of States, the relevant articles of the 1982 Convention, and the international
case law, beginning with the judgments of the International Court of
Justice. Accordingly, the achievement of an equitable solution constitutes
the aim of the delimitation, taking into account ali relevant circumstances
characterising the relevant maritime area. Any reference to equity in
maritime delimitation cannot run against those circumstances of a legal
nature which are pertinent to the case.
8.5. The law applicable to the case includes the principle of uti
possidetis juris of 1821 and the Honduran effectivités since that date, in
particular during the 20th century and continuing up to the present time.
The well-established principle of uti possidetis is the basis of initial
Honduran title to the territorial sea and the islands, which, in their turn,
have a substantial effect upon the delimitation of the continental shelf and
the EEZ. Further, the principle of uti possidetis juris gives rise to a
presumption of Honduran title to the continental shelf and EEZ north of the
!5th parallel (14°59.8'). ln each case, and independently of the
applicability of the principle of uti possidetis juris, Honduras effectivités
since independence in 1821 confirm Honduran sovereignty north of the 15 1h
paralie!.
THE CIRCUMSTANCES PERTINENT TO THE CASE
8.6. Most of the circumstances or factors relevant to the maritime
delimitation in the present case are entirely ignored by Nicaragua in its
Memorial. These circumstances consist, in particular, of the presence of
islands, cays, banks and reefs north of the !5th parallel, including Bobel
Cay, Savanna Cay, Port Royal Cay, and South Cay.
8.7. In relation to these islands, the conduct of the parties constitutes
one of the most pertinent circumstances: Honduras' effective
administration of the area north of the !5th parallel (14°59.8') is reflected in
the long-standing application and enforcement of her laws and regulations
and the regulation of economie activities in the area. Honduran nationals
live and work on the islands and cays in the area; foreign nationals
(including Nicaraguans) live and work on the islands only where duly
authorized by the Honduran authorities. 149
8.8. By contrast, Nicaragua has provided the Court with no evidence
whatsoever that it has ever sought to 1pply any of its national laws or
regulations to the area north of the 15hparallel (14°59.8'). In particular,
Nicaragua has never sought to regulate oil, gas and fisheries activities in
that area. The evidence that Honduras has put before the Court in the
Counter-Memorial confirms that in relation to these and other matters
Nicaragua has treated the l5 harallel as the traditional maritime boundary
between the Parties, at least until 1980.
8.9. Moreover, no third party has recognised Nicaraguan sovereignty
1
over the area north of the 15hparallel, by contrast with the extensive third
party recognition of Honduran sovereignty and jurisdiction in that area.
Nicaragua did not object to Honduran exercise of sovereignty in the area it
now claims until 1982, following many decades of peaceful and effective
control by Honduras pursuant to her sovereignty and jurisdiction.
Nicaragua has not providecl any evidence which indicates any conduct by
its authorities in the area such as to demonstrate any exercise - whether
effective orotherwise- of sovereignty or jurisdiction. In the circumstances
Nicaragua has shown no basis upon which to make its present claim, and is
estopped from making such a claim.
8.1O. Another important c:ircumstancerelevant to the case is provided by
the existence of numerous boundary treaties or other agreements
circumscribing the relevant area. Of particular relevance are the 1928
Nicaragua/Colombia Trea~ he, 1972 US/Colombia Treaty, the 1986
Honduras/Colombia Treaty, the 1993 Colombia/Jamaica Treaty, and the
200l United Kingdom/Honduras Treaty, ali of them dealing with maritime
delimitations in the region.
THE METHOD OF DELIMITATION
8.11. The method of delimitation proposed by Nicaragua is not equitable
and does not lead to an equitable result. It is not acceptable. Based upon a
bisector of the two coastal fronts, it invokes in respect of Honduras a
coastline which bears no relation to the actual configuration of the
coastline. Moreover, it ignores each and every one of the relevant
circumstances mentioned above.
8.12. With regard to the territorial sea boundary, considering the graduai
movement eastwards of the actual mouth of the River Coco, the endpoint of
the boundary established by the Award of the King of Spain in 1906 will
change from time to time. Under these "special circumstances" in the sense
of Article 15 of the 1982 Convention, it seems inaccurate to request from 150
the Court the determination of the line immediately east of the mouth of the
River Coco.
8.13. The actual boundary would therefore have three sections, as
depicted in Plate 20. The first section consists of a straight and horizontal
line following the thalweg of the River Coco from the point identified in
1962 by the Honduras/Nicaragua Mixed Commission to the mouth of the
river where it reaches the sea, as agreed by the two Parties. The second
section continues the same line through territorial waters to the 12-mile
limit at a point where it intersects the parallel 14°59.8'. The third section,
to be detennined by the Court, comprises an EEZ/Continental Shelf, single
maritime boundary extending from the 12-mile limit, eastwards along the
15thparallel (14°59.8') until it reaches the longitude at which the 1986
Honduran/Colombian maritime boundary begins (meridian 82). This third
and last section of the maritime boundary between the Parties is not the one
which results from the attribution of a full 12-mile territorial sea to each of
the islands located north ofthe 15thparallel (14°59.8'), ali ofwhich belong
to Honduras, and which have the effect of pushing the boundary south of
the 15thparallel (14°59.8'). This segment corresponds nevertheless to the
traditional line intemationally recognized and recognized by Nicaragua
until 1980; Honduras does not consequently seek to change it on the
occasion ofthese proceedings. 151
SUBMISSIONS
Having regard to the considerations set forth in this Counter-Memorial and,
in particular, the evidence put to the Court by the Parties,
May ifplease the Court to adjudge and declare thal:
1. The boundary for the purpose of the delimitation of the disputed
areas of the territorial sea, and extending to the outer limit of the
territorial sea,is a straight and horizontal tine drawn from the
current mouth of the River Coco, as agreed between the Parties,
111
to the 12-mile limit at a point where it intersects with the 15
parallel (14°59.8'); and
2. The boundary for the purpose of the delimitation of the disputed
areas of the continental shelf and Exclusive Economie Zone in the
region is a tine extending from the abo111mentioned point at the
12-mile Iimit, eastwards along the 15 parallel (14°59.8') until it
reaches the longitud1;:at which the 1986 Honduras/Colombian
maritime boundary begins (meridian 82); and further or in the
alternative;
3. In the event that the Court decides not to adopt the tine indicated
above for the delimitation of the continental shelf and Exclusive
Economie Zone, then the Court should declare a tine extending
from the 12-mile limit, eastwards down to the l5h parallel
(14°59.8') and give due effect to the islands under Honduran
1
sovereignty which aΠlocated immediately to the north of the 15 h
parallel.
Max Velasquez Diaz Carlos L6pez Contreras
Agent ofthe Republic of Honduras Agent of the Republic of Honduras
21 March 2002 155
VOLUME 2: ANNEXES
COLONIAL AND POST-COLONIAL DOCUMENTS ................................. !
Annex 1 "Description of the Province of Honduras" in 1752 by
Pedro Murillo Velarde................................................................... 3
Annex 2 Excerpt of the 1816 Report of the Govemor of the
Province of Honduras to the President of the Council of
Indies ........................................................................
..................... 7
Annex 3 Description ofthe Gulf of Honduras and lts Coasts, as Far
as Gracias a Dios, by Pedro de Rivera Marquez ........................... 9
Annex 4 Royal Order of 20 November 1803, Segregating from the
Captaincy-General of Guatemala, the Area of the
Mosquito Coast, from Cape Gracias a Dios Inclusive to
Chagres River and the Islands of San Andres (Certified by
the Secretary of the Archiva General de Indias-Sevilla on
8 October 1996)........................................................................
...
Annex 5 Note of the Minister of Nicaragua and Honduras to Lord
Aberdeen, Minister of the Foreign Office of Her British
Majesty, Dated 23 November 1844............................................. 15
Annex 6 New Instructions Given by Order of the Sovereign States
of Honduras and Nicaragua to Mr. Joséde Marcoleta,
Minister Chargéd'Affaires before the Govemment of the
Republic of France and others of Europe. Comayagua, 14
October 1848........................................................................
....... 19
TREATIES, AGREEMENTS AND DECLARATIONS .............................. 23
Annex 7 Treaty between Her Britannic Majesty and the Republic of
Honduras. Signed at Comayagua on 28 November 1859............25
Annex 8 Treaty of Recognition of the Independence of Honduras
Concluded with Her Majesty the Queen of Spain. Signed
at Madrid on 15 March 1866....................................................... 29
Annex 9 Treaty ConŒming Territorial Questions at Issue between
Colombia and Nicaragua, Signed at Managua on 24 March
1928 and Protocol of Exchange of Ratifications, Signed at
Managua on 5 May 1930. Registered by the League of
Nations on 16 August 1930, under Registration Number
2426 (UN ü:rtification Issued on 23 May 2000)........................ 35 156
Annex 10 Treaty between the Government of the United States of
America and the Government of the Republic ofColombia
Concerning the Status ofQuitasuefio, Roncador and
Serrana. Signed at Bogota, on 8 September 1972 (UN
Registration Number: 21801) ...................................................... 39
Annex 11 Maritime Delimitation Treaty between Jamaica and the
Republic ofColombia. Signed at Kingston on 12
November 1993 (UN Registration Number: 30943) .................. .41
Annex 12 Treaty Concerning Maritime Delimitation between the
Republic ofColombia and the Republic of Honduras.
Signed at San Andrés,on 2 August 1986. Registered with
the Secretariat of the United Nations on 21 December
1999, under Registration number 36360 (UN Certification
Issued on 5 January 2000) .......................................................... .47
Annex 13 Joint Declaration by the Ministers of Foreign Affairs of
Honduras and Colombia. Issued in Tegucigalpa on 23
November 1999........................................................................
...
Annex 14 Treaty between the Govemment ofthe United Kingdom of
Great Britain and Northern Ireland and the Government of
the Republic of Honduras Conceming the Delimitation of
the Maritime Areas between the Cayman Islands and the
Republic of Honduras, Signed at Tegucigalpa on 4
December 2001 ................................................53......................
...
DIPLOMATie CORRESPOND ENCE AND DOCUMENTS.....................57
Annex 15 Note from the Minister of Foreign Affairs of Honduras to
the Minister of Foreign Affairs of Nicaragua, Dated 16
November 1928.................................................59.....................
...
Annex 16 Note from the Minister of Foreign Affairs of Honduras to
the Minister of Foreign Affairs of the Republic of
Colombia, Dated 16 November 1928.......................................... 61
Annex 17 Note N. 686 of Il April 1972, from the Minister of
Foreign Affairs of Honduras to the Ambassador of
Nicaragua ....................................................63..................
............
Annex 18 Note N. G-102, N. P.Oil MREH of 17 Aprill972, from
the Ambassador ofNicaragua to the Minister of Foreign
Affairs ofHonduras ..................................................................... 65
Annex 19 Note N. 320-SAC of 25 February 1977, from the Under
Secretary of Foreign Affairs of Honduras to the Minister
of Defence of Honduras .............................................................. 67 157
Annex 20 Note N. 1025 of 20 May 1977, from the Minister of
Foreign Affairs of Honduras to the Ambassador of
Nicaragua* ........................................................................
.......... 69
Annex 21 Note of21 September 1979 (Communication via TRT)
from the Minister of Foreign Affairs of Honduras to the
Minister of Foreign Affairs ofNicaragua .................................... 71
Annex 22 Note of 24 September 1979 (Communication via TRT)
from the Acting Minister of Foreign Affairs of Nicaragua
to the Minister of Foreign Affairs of Honduras........................... 73
Annex 23 Note N. 0031·-DSSof 23 March 1982 from the Acting
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs of Nicaragua* .................................................... 75
Annex 24 Note of 12 July 1982 from Ambassador Roberto Arita
Quifi6nez, Advisor, to the Acting Minister of Foreign
Affairs of Honduras..................................................................... 77
Annex 25 Note N. 2176 SD of 18 September 1982, from the Acting
Minister of Foreign Affairs to the Chargéd'Affaires of
Nicaragua* ........................................................................
.......... 81
Annex 26 Note N. 060 DA of9 February 1983, from the Minister of
Foreign Affairs of Honduras to the Ambassador of
Nicaragua........................................................................
............. 83
Annex 27 Note N. 202 DA of 11 May 1983, from the Acting
Minister of Foreign Affairs of Honduras to the Acting
Minister of Foreign Affairs ofNicaragua* .................................. 85
Annex 28 Note N. 406 DA of 17 August 1983, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua* .................................................................. 87
Annex 29 Note N. 456 DA of 13 September 1983, from the Acting
Minister ofForeign Affairs of Honduras to the Acting
Minister of Foreign Affairs of Nicaragua*.................................. 89
Annex 30 Note N. 479 DA of 17 October 1983, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua* .................................................................. 91
Annex 31 Note N. 517 DA of27 October 1983, from the Minister of
Foreign Affairs of Honduras to the Acting Minister of
Foreign Affairs of Nicaragua ...................................................... 93
Annex 32 Note N. 546 DA of7 November 1983, from the Minister
of Foreign Affairs of Honduras to the Acting Minister of
Foreign Affairs ofNicaragua ...................................................... 95 !58
Annex 33 Note N. 571 DA of 14November 1983, from the Acting
Minister of Foreign Affairs of Honduras to the Acting
Minister of Foreign Affairs ofNicaragua .................................... 97
Annex 34 Note N. 603-DA of 12 December 1983, from the Acting
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs of Nicaragua ...................................................... 99
Annex 35 Note N. 609-DA of 16 December 1983, from the Minister
of Foreign Affairs of Honduras to the Ambassador of
Nicaragua .....................................................101................
..........
Annex 36 Note D.M. 00381 of 4 April 1984, from the Minister of
Foreign Affairs ofColombia to the Minister of Foreign
Affairs of Honduras ................................................................... 103
Annex 37 Note N. 408-DA of27 June 1984, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs ofNicaragua ..................................................................
Annex 38 Note of 5 October 1984, from the Minister of Foreign
Affairs of Honduras to the Minister of Foreign Affairs of
Colombia ......................................................107...............
...........
Annex 39 Note N. DSS-466 of 10 October 1984, from the Acting
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs of Nicaragua .................................................... 109
Annex 40 Note N. 053-DA of 29 January 1985, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua* ................................................................ 111
Annex 41 Note N. 257-DA of 18 June 1985, from the Acting
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 113
Annex 42 Note N. 358/86-DSM of 29 September 1986, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 115
Annex 43 Note N. 005-ACAYM of30 January 1987, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 117
Annex 44 Note N. 293-DA of 3 July 1987, from the Acting Minister
of Foreign Affairs to the Minister of Foreign Affairs of
Nicaragua .....................................................119................
..........
Annex 45 Note N. 081-CAYM of22 October 1991, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 121 159
Annex 46 Note N. 084-CAYM of 30 October 1991, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 123
Annex 47 Note N. 091-CAYM of5 December 1991, from the
Minister ofF oreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 125
Annex 48 Note N. 297 DSM of 4 June 1993, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Co1ombia.................................................................. 127
Annex 49 Note N. 336-DSM of30 June 1993, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua* ................................................................ 129
Annex 50 Note N. 418-DSM of 17 August 1993, from the Minister
of Foreign Affairs of Honduras to the Ambassador of
Nicaragua ........................................................................
.......... 131
Annex 51 Note N. 124-DSM of 7 April 1994, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs ofNicaragua* ................................................................
Annex 52 Note Verbale N. 950132 of 24 March 1995, from the
Ministry of Foreign Affairs of Nicaragua to the Ministry of
Foreign Affairs of Honduras ..................................................... 135
Annex 53 Note N. 0-216-DSM of 19 Apri11995, from the Minister
of Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua* ................................................................ 137
Annex 54 Note N. 226-SAM-95 of 11July 1995, from the Minister
of Foreign Affairs of Honduras to the Minister of Foreign
Affairs ofNicaragua .................................................................. 139
Annex 55 Note N. 465 DSM of 18 December 1995, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affaïrs of Nicaragua* .................................................. 143
Annex 56 Note N. 363-SAM-95 of27 December 1995, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 145
Annex 57 Note N. 5-DLAI-96 of9 January 1997, from the Minister
of Foreign Affairs of Honduras to the Minister of Foreign
Affairs ofNicaragua .................................................................. 147
Annex 58 Note N. COSOF 081/97 of7 August 1997, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua .................................................... 149 160
Annex 59 Note N. 180 DSM of 19 June 1998, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs ofNicaragua* ................................................................
Annex 60 Note N. 243-DSM of 8 July 1998, from the Minister of
Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua* ................................................................ 153
Annex 61 Note N. 393-DSM of 18 September 1998, from the
Minister of Foreign Affairs of Honduras to the Minister of
Foreign Affairs ofNicaragua* .................................................. 155
NATIONAL LEGISLATION .......................................................................
157
Annex 62 Honduran Decree of 23 November 1868, creating the
Department of Mosquitia .......................................................... 159
Annex 63 Honduran Decree N. 52 of21 February 1957, creating the
Department of Gracias a Dios ................................................... 163
Annex 64 Continental Shelf and Adjacent Sea Act. Nicaraguan
Decree N. 205 of 19 December 1979, Published in La
Gaceta N. 88 of20 December 1979 .......................................... 165
Annex 65 Law on Maritime Areas of Honduras. Decree N. 172-99 of
30 October 1999. Published in La Gaceta N. 29,054 of23
December 1999 .................................................167....................
.
WITNESS STATEMENTS ........................................................................
... 175
Annex 66 Notarial Certification Issued on 17 September 2001
(Deposition by Mr. Everton Anthony McKellar) ...................... 177
Annex 67 Notarial Certification Issued on 17 September 2001
(Deposition by Mr. Maurice Loy Gowe ).................................. 181
Annex 68 Notarial Certification Issued on 17 September 2001
(Deposition by Mr. Selvin McKenlly Johnson More) ............... l85
Annex 69 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Celso Eugenio Chirinos Mejia) ..................................... 189
Annex 70 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Daniel Bordas Nixon) .................................................... l93
Annex 71 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Harley Seision Paulisto) ................................................ 197
Annex 72 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Ramon Antonio Nell Manister) ..................................... 201
Annex 73 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Fabian Flores Ramirez) ................................................. 205 161
Annex 74 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Edgar Henry Haylock Arrechavala) .............................. 209
Annex 75 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Gabriel Heriberto Echevarria Arrechavala) ................... 213
Annex 76 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Porfirio Echevarrfa Haylock) ........................................ 217
Annex 77 Notarial Certification Issued on 26 July 2001 (Deposition
by Mrs. Angela Green de Johnson) ........................................... 221
Annex 78 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Santos Calderon Morales) ............................................. 225
Annex 79 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Francisco G6mez Colomer) ........................................... 229
Annex 80 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Mario Ricardo Dominguez Hendricks) ......................... 233
Annex 81 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Stanley Tedd GoffBude) ............................................... 237
Annex 82 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Daniel Santos Solabarrieta Armayo) ............................. 241
Annex 83 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Herbert Balder Hyde Carter) ......................................... 245
Annex 84 Notarial Certiification lssued on 26 July 2001 (Deposition
by Mr. Robert Richard Gough) ................................................. 249
Annex 85 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Charles Lindbergh Dixon Jackson) ............................... 253
Annex 86 Notarial Certification Issued on 26 July 2001 (Deposition
by Mr. Bob Ward McNab Bodden) ........................................... 257
Annex 87 Notarial Certification Issued by the Lower Court Judge of
Bay Islands on 9 August 2001 (Deposition by Mr. Charlie
Edward Ebanks Woods) ............................................................
Annex 88 Notarial Certification lssued by the Lower Court Judge of
Bay Islands on 9 August 2001 (Deposition by Mr. John
True Osgood Moore) ................................................................. 265
Annex 89 Notarial Certification Issued by the Lower Court Judge of
Bay Islands on 9 August 2001 (Deposition by Mr. Audley
Desmond Phillips Woods)......................................................... 269
Annex 90 Notarial Certification Issued by the Lower Court Judge of
Bay Islands on 9 August 2001 (Deposition by Mr. Eri
Melvin Hyde Moore)................................................................. 273 162
Annex 91 Notarial Certification Issued by the Lower Court Judge of
Bay Islands on 9 August 200 1(Deposition by Mr. Bryd
Adalid Rosa Chavez) ................................................................. 277
Annex 92 Notarial Certification Issued by the Lower Court Judge of
Bay Islands on 9 August 2001 (Deposition by Mr. Arturo
Parchmont Wood) ..................................................................... 279
Annex 93 Notarial Certification Issued by the Lower Court Judge of
Bay Islands on 9 August 2001 (Deposition by Mr. Austin
Larrabee Ebanks Wood) ............................................................ 283
Annex 94 Notarial Certification Issuedin Logwood Cay, Known as
Savanna or Media Luna Cay, requested by the Director of
Demarcation and Boundaries Maintenance ofthe Ministry
ofF oreign Affairs of Honduras, Certified Copy of 16
February 2000 .................................................287....................
...
Annex 95 Notarial Certification lssuedin South Cay, requested by
the Director of Demarcation and Boundaries Maintenance
ofthe Ministry of Foreign Affairs of Honduras, Certified
Copy of 16 February 2000 ........................................................ 291
Annex 96 Notarial Certification Issued in Bobel Cay, Requested by
the Director of Demarcation and Boundaries Maintenance
ofthe Ministry of Foreign Affairs of Honduras, Certified
Copy of 16 February 2000 ........................................................ 295
Annex 97 Notarial Certification Issued on 5 June 2001 (Deposition
by Messrs. Roberto Arita Quifi6nez, RubénHumberto
Montoya Ramirez, Claudio Alfredo Lainez Coello and
Giordano Bruno Fontana Hedman) ........................................... 299
Annex 98 Notarial Certification Issued on 9 January 2002
(Deposition by Dr. Carlos Roberto Reina Idiaquez, former
President of the Republic of Honduras) .................................... 305
Annex 99 Notarial Certification Issued on 15June 2001 (Deposition
by Mr. Rodney William Saubers) .............................................. 309
JUDICIAL DOCUMENTS ........................................................................
... 315
Annex 100 Excerpt from a Labour Complaint (File n. 4-91) before the
Lower Court of Labour of Puerto Lempira, Department of
Gracias a Dios (Submitted by Mr. Bertin Williams G6mez) ....317
Annex 101 Excerpts from a Labour Complaint (File N. 3,341) before
the Lower Court of Labour of Puerto Lempira, Department
of Gracias a Dios (Submitted by Mr. Arnulfo Briones
Martinez Sambola on 16 September 1991) ............................... 319 163
Annex 102 Excerpt from a Labour Complaint (File N. 13): Attestation
by the Lower Court of Labour of Puerto Lempira,
Department of Gracias a Dios Issued on 13 February 1992
(Case ofMr. Medina Websta Andares) ..................................... 323
Annex 103 Excerpt from a Labour Complaint before the Lower Court
of Roatan, Bay Islands (Submitted by Genaro Suazo Sodia
on 3 January ]1994).................................................................... 325
Annex 104 Excerpt from a Criminal Complaint (File N. 245-96):
Order Issued by the Lower Court of Puerto Lempira,
Department of Gracias a Dios on 1 April 1996 (Complaint
Brought against Mr. Silvano Teleth Lucan and Mr.
Antonio Pita) ........................................................................
..... 327
Annex 105 Excerpt from an Application Conceming the Finding of a
Motor Vesse) (File N. 2302-97): Communication Issued by
the Lower Court of Puerto Lempira, Department of
Gracias a Dias on 7 April 1997 (Application brought by
Mr. Pleny Gibson Hyde) ........................................................... 329
Annex 106 Excerpt from a Criminal Complaint (File N. 706-98):
Deposition b~;: fho rower Court Judge of Puerto
Lempira, Department of Gracias a Dios on 17August 1998
(Witness Statement of Mr. Elmer Didier Teram Jarquin) .........331
OIL CONCESSIONS- HONDURAS .......................................................... 333
Annex 107 Certification of a Resolution Concerning an Oil
Concession, Granted to "Pure Oil Company of Honduras,
Inc.", Published in the Official Gazette of Honduras N.
18.673 of22 September 1965 ................................................... 335
Annex 108 Resolution Conceming an Oil Concession Granted to
"Signal Exploration (Honduras) Company", Published in
the Official Gazette of Honduras N. 19.111 of9 March
1967.......................................................337..............
...................
Annex 109 Joint Drilling Operations of the "Coco Marina" Oil-well:
Opinion by the Honduran Interstate Study Commission
(Comisi6n Interestatal de Estudio) ............................................ 341
Annex 110 Joint Drilling Operations ofthe "Coco Marina" Oii-Well:
Report from '·'UnionOil Company of Honduras" to the
Ministry ofNatural Resources of Honduras, Dated 20
February 1969 ........................................................................
... 343 164
Annex Ill Joint Drilling Operations of the "Coco Marina" Oil-Weil:
Excerpt from the Preliminary Report of the Drilling
Operations of the "Coco Marina N. l" Oil-Well, Submitted
to the General Director of Mines and Hydrocarbons of the
Ministry ofNatural Resources of Honduras on 26 May
1969..........................................................345...........
...................
Annex 112 Excerpts from a Resolution Concerning an Oil Concession
Granted to "Lloyd Honduras, Inc.", Published in the
Official Gazette of Honduras N. 20.027 of 18 March 1970......347
Annex 113 Excerpt from a Resolution Concerning an Application for
an Oil Concession Submitted by "Republic Oil and Gas,
S.A. de C.V.", Published in the Official Gazette of
Honduras N. 20.330 of 19 March 1971..................................... 349
Annex 114 Excerpt from a Resolution Concerning a Permit for
Surface Recognition of Hydrocarbons, Granted to "Texaco
Caribbean Inc.", Published in the Official Gazette of
Honduras N. 23.233 of 17 October 1980 .................................. 351
OIL CONCESSIONS- NICARAGUA ........................................................ 353
Annex 115 Excerpt from a Certification of Decree Concerning an Oi1
Concession granted to "Western Caribbean Petroleum
Company", Published in the Official Gazette ofNicaragua
N. 161 of 18July 1968.............................................................. 355
Annex 116 Excerpt from a Certification of Decree Concerning an Oil
Concession granted to "Western Caribbean Petroleum
Company" and "Occidental ofNicaragua, Inc.", Published
in the Official Gazette ofNicaragua N. 206 of9 September
1970..........................................................357...........
...................
Annex 117 Excerpt from a Certification of Decree Concerning an Oil
Concession granted to "Western Caribbean Petroleum
Company" and "Occidental ofNicaragua, Inc.", Published
in the Official Gazette ofNicaragua N. 272 of28
November 1974........................................................................
. 359
Annex 118 Diagrams of Oil Concessions Granted by Honduras and
Nicaragua from 1962 to 1974, Published in the Bulletin of
the American Association of Petroleum Geologists in
1962, 1970, 1972 and 1975. Diagram ofOil Concessions
Granted by Nicaragua, Published in Petroleum
Concessions Handbook, Supplement 6, Barrows, 1972............361 165
FISHING CONCESSIONS AND PERMITS .............................................. 367
Annex 119 Excerpt from a Notification Concerning an Application for
Fishing concession Submitted by "Hondurefia de Pesca, S.
de R.L.", Published in the Official Gazette of Honduras N.
17.611 of23 February 1962 ...................................................... 369
Annex 120 Excerpt from a Notification Concerning an Application for
Fishing permit, Submitted by "Alimentas Marinos
Hondurefios, S. A.", Published in the Official Gazette of
Honduras N. 22.551 of 17 July 1978......................................... 371
Annex 121 Excerpts from a Contract Signed on 17 November 1986
between the Nicaraguan Fishing Institute (INPESCA) and
Mr. Ramon Sanchez Borba (on beha1fof the Honduran
owners of30 Honduran Fishing Vessels) Concerning the
Granting of Permits to Carry out Lobster Fishing Activities
in Nicaraguan Waters ................................................................ 373
Annex 122 Note Dated 16 January 1987 Addressed by Mr. Ramon
Sanchez Borba to the Minister of Foreign Affairs of
Honduras, Concerning the Contract for Fishing Activities
Signed with fNPESCA on 17November 1986 ......................... 375
Annex 123 Note N. 16 of 20 March 1987 Addressed by the Minister
of Foreign Affairs of Honduras to the Minister of Foreign
Affairs of Nicaragua, Concerning the Contract between
INPESCA and Mr. Ramon Sanchez Borba Signed on 17
November 1986........................................................................
. 377
Annex 124 Attestation Issued by the Nicaraguan Fishing Institute
(INPESCA) on 7 April 1987, Modifying the Clause 6 of
the Contract of 17November 1986 between the Institute
and Mr. Ramon Sanchez Borba, Concerning the Granting
ofFishing Permits to 30 Honduran Vessels .............................. 379
Annex 125 Temporary Work Permits, Issued by the Municipality of
Puerto Lempira, Department of Gracias a Dios on 6 and 10
January 2000, to Fishermen of Jamaican and Nicaraguan
Nationa1ity to Carry out Fishing Activities in South and
Savanna Cays ..................................................381...................
.... 166
REGISTRATION OF FISHING VESSELS ................................................385
Annex 126 Excerpt from a Private Deed Conceming the Ownership of
a Small Vesse!, Signed on 4 April 1997 by a Resident of
HalfMoon (Media Luna) Cay, Department of Gracias a
Dios, (Mr. Owen MacDonald Parchment) before the
Lower Court Judge of Puerto Lempira, Department of
Gracias a Dios ........................................................................
... 387
Annex 127 Application for Registration of a Small Vesse! N. V-310,
Submitted on 26 March 1997 to the General Directorate of
the Merchant Marine of Honduras by Mr. Victor V. Vasell,
a Resident of Savanna Cay........................................................ 389
Annex 128 Application for renewal of Registration of a Small Vesse!
N. V-244, Submitted on 21 July 1997 to the General
Directorate of the Merchant Marine of Honduras by Mr.
Donald Moxan, a Resident ofSavanna Cay.............................. 391
NAVAL PATROLS AND OPERATIONS ...................................................393
Annex 129 Excerpt from the Logbook ofthe Hibueras Patrol Boat.
Naval Base of Puerto Cortés (Patrolling of 18 September
1982 at Bobe1Cay).................................................................... 395
Annex 130 Excerpt from the Logbook ofthe Hibueras Patrol Boat.
Naval Base of Puerto Cortés (Patrolling of 6, 7 and 8
August 1986 and 6 May 1987 at South and Bobet Cays)..........397
Annex 131 Excerpts from the Report of the Naval Squadron ofthe
Atlantic of Puerto CortésDated 12 April 1988 (Patrolling
Areas North of Parallel 15) ...................................................... .40 1
Annex 132 Excerpts from the Report ofthe Naval Squadron ofthe
Atlantic of Puerto CortésDated 23 May 1988 (Patrolling
Areas North of Parallel 15) ...................................................... .403
Annex 133 Excerpt from the Logbook ofthe Honduras Patrol Boat.
Naval Base of Puerto Castilla (Patrolling of 16November
1988 at Half Moon [Media Luna] and Bobet Cays)................. .405
Annex 134 Excerpts from the Logbook ofthe Honduras Patrol Boat.
Naval Base of Puerto Castilla (Patrolling of 17 April 1989
at Bobel, Half Moon [Media Luna] and South Cay and
Alargado Reet) ........................................................................
..
Annex 135 Excerpts from the Logbook of the Honduras Patrol Boat.
Naval Base of Puerto Castilia (Patrolling of 21 October
1990 on Areas North of Parallel 15) ........................................ .409 167
Annex 136 Excerpts from the "Annual Report of Organisation,
Operations and Training No.11" of the Naval Base of
Puerto Cortés..Period Covered: from December 1987 to
December 1988 (Patrolling the Rosalinda's Fishing banks) .....411
Annex 137 Excerpts from the Operations Order N. 003-95 of the
Naval Base of Puerto Castilla (Patrolling of February 1995
at Bobet Cay, Cabo Falso Cay, Cape Gracias a Dios and
La Mosquitia) ........................................................................
.... 413
Annex 138 Excerpts from the Operations Order N. 0l-97 of the Naval
Base of Puerto Castilla (Patrolling of December 1997 on
Areas North ofParallell5) ...................................................... .415
Annex 139 Note Dated 21 March 1982, Addressed by the Chief of the
Honduran Anned Forces to the Minister of Foreign Affairs
of Honduras Regarding an Incident with Sandinista Patrol
boats in Bobel and Media Luna Cays....................................... .417
Annex 140 Excerpts from the Report Dated 9 December 1982,
Addressed to the Commander in Chief of the Honduran
Navy about an Incident with a Nicaraguan Patrol boat in
the Bobel Cay Area and Reporting the Death in Combat of
an Honduran Officer.................................................................. 419
Annex 141 Report Dated 23 September 2000 to the Naval Commander
of the Honduran Naval Base of Puerto Castilla, Regarding
the Capture of aN icaraguan Vessel while Engaged in
Illegal Activities to the North of the 15 Paralle1......................421
Annex 142 Annex "E" Resolution N. 06-2000 to Operations Order N.
21-2000, Conceming the Preservation of Fishing Natural
Resources, Issued by the Naval Base of Puerto Castilla.
Diagram of Operations Annexed ............................................... 423
Annex 143 Note O.M. N. 1099 Dated 30 October 1975, Addressed by
the Acting Minister of Defence to the Commander ofof
the Honduran Air Force (Transcription of the Note N. 73
Dated 20 October 1975 from the Embassy of Argentina
Requesting Permission to Overfly Honduran Territory by
Entering through the Route of Parallel 15)............................... .427
Annex 144 Note N. 106 Dated 27 June 1978 Addressed by the
Embassy of the United States of America to the Ministry
of Foreign Affairs of Honduras, Requesting Information
about an Incident between an Honduran Patrol Boat and an
American Fishing Vessel Occurred to the North of the 15 1h
Paralle1.........................................................429............
............... 168
Annex 145 Report Dated 13 May 1980 Addressed to the Commander
of the Naval Base of Puerto Cortes Regarding the
Installation ofBeacons and Buoys in Vivorillos Cays,
Gorda Bank, Cayo Pichon and Others Located North of the
15 Paralle1...................................................431..................
........
IMMIGRATION AND HEALTH ISSUES ................................................. .433
Annex 146 Note N. 007-99 Dated 31 March 1999 Addressed by the
Regional Agent of Migration of Puerto Lempira to the
General Director of Population and Migratory Policy ..............435
Annex 147 Excerpt from a List of Residents in the Departments of
Gracias a Dios and Bay Islands, Issued by the General
Division ofPopulation and Migratory Policy of Honduras
on 14 October 1999.................................................................. .445
Annex 148 Note N. 899-99 DG Addressed by the Director of
Population And Migratory Policy of Honduras to the Vice-
Minister of Foreign Affairs on 30 November 1999.................. .447
Annex 149 Note N. 901-99-DG Addressed by the Director of
Population and Migratory Policy of Honduras to the
Minister of the Interior on 2 December 1999........................... .449
Annex 150 Attestation of the Regional Agent for Migration of Puerto
Lempira Issued on 7 January 2000 ........................................... .453
PUBLIC WORKS AND OTHER ADMINISTRATIVE ACTS .................455
Annex 151 Excerpt from a List of Fishermen who have Received
Medical Attention at the Clinic of the Fantasy Island Hotel
in Roatan, Bay Islands, during November-December 1997......457
Annex 152 Arrangement for Hydrographie and Nautical Cartography
between the Agencies of the Republic of Honduras and the
United States of America, Signed at Tegucigalpa on 30
August 1976, Attachment 1: U.S. Naval Oceanographie
Office. General Instructions. Harbor Survey Assistance
Program (HARSAP). AnnexA: U. S. Naval
Oceanographie Office. Horizontal Control. A10201
Triangulation .................................................459....................
.....
Annex 153 Certification Issued by the Honduran National Harbour
Authority (Empresa Nacional Portuaria, ENP) on the
Summaries of Satellite-Observed Stations, on 20
December 1999 .................................................469....................
. 169
Annex 154 Excerpts taken from the Summaries of Satellite-Observed
Stations Effected in Accordance with the 1976
Arrangement for Hydrographie and Nautical Cartography
between the Agencies ofthe Republic of Honduras and the
United States of America ......................................................... .471
Annex 155 Memorandum ofthe Head of the Technical Supervision
Division ofthe Honduran National Harbour Authority
(Empresa Nacional Portuaria) to the Head of
Hydrography Dated 11 July 1980 (Installation of buoys) .........473
Annex 156 Excerpts from a Drugs Enforcement Operation in the Area
Named "Satellite Operations Plan", 1993................................ .475
Annex 157 Note N. 954-G Dated 28 December 1994 Addressed by the
General Manager of the Honduran Institute of
Anthropology and History to the Commander of the Naval
Force of Honduras (Regarding Permission Requested by
the Company Research and Recovery Inc. for Searching
Remains ofSpanish Galleons North ofthe 15 Parallel) ..........477
SCIENTIFIC, ECONOMIC AND MISCELLANEOUS
DOCUMENTS ..........................................................479...........
........................
Annex 158 Honduras Operations Manual. Report Prepared for the
Project Investigation and Commercial Evaluation of the
Main Maritime Fishery Capacity of Honduras in the
Northern Zone. FAO, Rome 1985 (Excerpts) .......................... .481
Annex 159 Project HON/82/0 1O.Results of the Fishing Program
Effected by the B/1"LAMATRA" in the Honduran
Atlantic (May 1985-April 1986), June 1986 (Excerpts) ...........485
Annex 160 Investigation and Commercial Evaluation ofthe Main
Maritime Fishing Capacity of Honduras in the Northern
Zone. Results and Recommendations ofthe Project.
United Nations Development Program. FAO, Rome 1987
(Excerpts) ........................................................................
.......... 487
Annex 161 National Investments Corporation. Program of
Investigation and Commercial Evaluation of the Main
Maritime Fishing Capacity of Honduras in the Northern
Zone. Application for "Non-refundable" Technical
Cooperation Filed by the Government of Honduras to the
Inter-American Development Bank. CONADI (Excerpts) .......489 170
Annex 162 United States Department oflnterior. Fish and Wildlife
Service. The Fisheries and Fishery Resources of Honduras
with Recommendations for their Expansion and
Development. Washington July 1943. Reprinted
November 1947 (Excerpts) ...................................................... .491
Annex 163 Excerpts from the Document "Exploratory and Simulated
Commercial Fishing Operations in the Western Caribbean
Sea. R/V "CANOPUS", May to November 1970" by
Marcel Giudicelli, CCDO-FAO-UNDP, San Salvador
1971...........................................................493..........
...................
Annex 164 Nicaraguan Declaration of the Marine Biological Reserve
"Cayos Miskitos y Franja Costera Inmediata". Decree N.
43-91 of 31October 1991, Published in the Official
Gazette of Nicaragua N. 207 of 4 November 1991...................495
Annex 165 Project for lmproving the Capacity to Organize the Natural
Resources of the Caribbean Coast CEPNET/BID: Report
on the Situation in the Caribbean Coast. Ministry of
Environment and Natural Resources ofNicaragua
(MARENA) and UNEP- CEP/RCU, 1999............................... .497
Annex 166 Excerpt from page 37 of"Geograjia de Nicaragua" by
Professor Francisco Teran, UNESCO Expert on duty in
Nicaragua and Doctor Jaime Incer Barquero, Scientific
Advisor to the Ministry of Public Education ofNicaragua
First Edition, Managua, Nicaragua, C.A. 1964, Sponsored
by the Central Bank ofN icaragua ............................................. 503
Annex 167 Excerpts from the List ofNames Approved by the United
States Board on Geographie Names, Gazetier of Honduras
1983 (Cays and Reefs near the 15 Parallel ldentified As
Belonging to Honduras) ............................................................
Annex 168 Excerpts from the List ofNames Approved by the United
States Board on Geographie Names, Gazetier of 1
Nicaragua 1985 (Cays and Reefs near the 15 h Parallel
Identified As Belonging to Nicaragua) ..................................... 507
Annex 169 Excerpt from a Resolution Concerning a concession for
exploiting guano and other substances, granted to Mr.
Jacob Baiz, Published in the Official Gazette of Honduras
N. 413 of5 June 1888 ............................................................... 509 171
VOLUME 3: MAPS AND ILLUSTRATIONS
PART 1
Plate 1 Central America and the Caribbean. General Map
Plate 2 Cape Gracias a Dios and the Offshore Area. Location Map
Plate 3 Cays and Reefs of the Area. Admiralty Chart, UK
Hydrographie Office. Section of Chart Number 2425
Plate 4 Cays and Reefs of the Area. Detail from Chart Number 2425
Plate 5 Maritime Agreements in the Western Caribbean
Plate 6 The Honduran/Cayman Islands Maritime Boundary in
Relation to Established Honduran Oïl Concession Activity
Plate 7 Gulf of Honduras circa 1770 (Geographie Chart of the Coast
and Gulf of Honduras)
Plate 8 Honduran Sovereignty Map in 1886 (Map of A.T. Byrne)
Plate 9 Effects ofNicaragua's 1904 Claim
Plate 10 Administrative Regions of Gracias a Dias
(Inclusive of Islands and Fisheries Banks)
Plate 11 Honduran Oil Concession Licensing
in the Western Caribbean
Plate 12 Nicaraguan Oil Concession Licensing
in the Western Caribbean
Plate 13 Composite of Honduran and Nicaraguan Oil Concession
Licensing in the Western Caribbean
Plate 14 Honduran Fishing Zones (Inclusive ofRoatan and Guanaja)
Plate 15 Honduran Naval Patrol Zone (1986-1991)
PART2
Plate 16 Photograph of Savanna Cay and Triangulation Station Dise
Plate 17 Photograph of Babel Cay and Triangulation Station Dise
Plate 18 Photograph of South Cay and Triangulation Station Dise
Plate 19 Satellite Analysis of Coastal Changes at Cape Gracias a Dios
(1979-2001)
Plate 20 Honduran Method of Delimitation 172
Plate 21 Honduran Oit Concession Licensing in the Western
Caribbean. Detail
Plate 22 Nicaraguan Oil Concession Licensing in the Western
Caribbean. Detail
Plate 23 General Map ofthe Republic of Honduras of 1933 by
Professor Jesûs Aguilar Paz
Plate 24 General Chart of the Republic of Honduras of 1933 by the
Pan-American Institute ofGeography and History
Plate 25 General Map of the Republic of Honduras of 1954 by Dr.
Jesûs Aguilar Paz
Plate 26 Hydrographie Chart of the Mosquitos Coast and Adjacent
Islands, circa 1793
Plate 27 Chart Comprising the Coast ofYucatan, Mosquitos and
Honduras, cirea 1801
Plate 28 Map of the Republic ofNicaragua (1982). National
Geographie Institute ofNicaragua
Plate 29 Territorial Political Division of the Republic ofNicaragua
(February 1965) Printed by the General Directorate of
Cartography ofNicaragua
Plate 30 Photograph of Savanna Cay with houses and fishing boats
Plate 31 Honduran Fishing Logbook Form (Bitac6ra) 173
LIST OF DOCUMENTS DEPOSITED
WITH THE REGISTRY
CHAPTER2
2-01 JPurdy, The Colombian Navigator, London, 1839
2-02 R. Owen, "Description of the Mosquito Coast," The Nautical
Magazine and Naval Chronicle, London, (1841)
2-03 Document FO 56/67 ofthe British Foreign Office, Public
Records Office, London.
2-04 Agreement between Portugal and Spain on the delimitation of
the Continental Shelf (12 February 1976) (Boletin Oficial de
las Cortes,15 June 1976, No. 1512, p 36553-36556)
2-05 Treaty ofPeace and Friendship (Argentina and Chile) (29
November 1984)(34 !LM (1985), p 11-14)
2-06 Agreement between the United States of America and the
Union of Soviet Socialist Republics on the maritime boundary
(1June 1990)(39/LM(1990),p942)
CHAPTER3
3-01 Antonio R. Vallejo, Historia documentada de los limites entre
la Republica de Honduras y las de Nicaragua, Salvador y
Guatemala, T.1,New York, 1938, p 101.
3-02 Document FO 881/8463 ofthe British Foreign Office, Public
Records Office, London.
3-03 Document FO 371/836 of the British Foreign Office, Public
Records Office, London.
3-04 Document FO 56/67 of the British Foreign Office, Public
Records Office, London.
3-05 Document FO 37111057ofthe British Foreign Office, Public
Records Office, London.
3-06 Document FO 56/68 of the British Foreign Office, Public
Records Office, London.
3-07 Document FO 371/593 of the British Foreign Office, Public
Records Office, London.
3-08 Photocopy of ast~ct ofionnOfficial Map of Nicaragua, dated
1898, compiled by orderof President Zelaya 174
3-09 Mapa Poliftico, Republica de Nicaragua, Ministerio de
Fomento Direcciôn General de Cartografia (1966)
3-10 Mapa escolar orografico e hidrografico, and, Mapa escolar
polftico-adminbtrativo, Republica de Nicaragua, preparado y
publicado por ellnstituto Nicaragüense de Estudios
Territoriales con el financiamiento del Banco Central de
Nicaragua (Managua 1993).
CHAPTER6
6-01 Labour Complaint (File n. 238) before the Lower Court of
Labour of Roatan, Bay Islands (Submitted by Rubio Maly
Gômez on 13 December 1993).
6-02 Excerpt from a Labour Complaint (File n. 16.295) before the
Lower Court of Labour of Puerto Lempira, Department of
Gracias a Dios (Submitted by MoisésLeonardo Tomson).
6-03 Excerpt from a Labour Complaint (File n. 16.297) before the
Lower Court of Labour of Puerto Lempira, Department of
Gracias a Dios (Submitted by Erasmo Granuel Diaz).
6-04 Excerpt from a Labour Complaint (File n. 14) before the
Lower Court of Labour of Puerto Lempira, Department of
Gracias a Dios (Submitted by Marvin Trapp).
6-05 Excerpt from a Labour Complaint (File n. 11) before the
Lower Court of Labour of Puerto Lempira, Department of
Gracias a Dios (Submitted by Delio Reyes Deveth).
6-06 Excerpt from a Labour Complaint (File n. 266-94) before the
Lower Court of Labour of Roatan, Bay Islands (Submitted by
Eliseo Sierra Alvarez, on 3 February 1994).
6-07 Excerpt from a Labour Complaint (File n. 2351-97) before the
Lower Court of Labour of Puerto Lempira, Department of
Gracias a Dios (Submitted by Walterio MéndezGreen).
6-08 Resolution Concerning an Oil Concession, Published in the
Official Gazette of Honduras N. 15.510 of 3 February 1955.
6-09 Permit for surface recognition ofhydrocarbons granted to
"Aracca Petroleum Corporation", Published in the Official
Gazette of Honduras No. 23.958 of Il March 1983.
6-10 Application for an Oil Concession submitted by "Petrolera
Hondurefia S.A", Published in the Official Gazette of
Honduras No. 17.566 of2 January 1962 175
6-11 Application for an Oit Concession submitted by "Signal
Exploration (Honduras) Company", Published in the Official
Gazette of Honduras No. 19.175 of29 May 1967
6-12 Application for an Oil Concession submitted by "Signal
Exploration (Honduras) Company", Published in the Official
Gazette of Honduras No. 19.184 of 8 June 1967
6-13 Application for an Oil Concession submitted by "Phillips
Petroleum Company of the Americas", Published in the
Official Gazette of Honduras No. 21.380 of 6 September 1974
6-14 Application for an Oil Concession submitted by "Cambridge
Resources Corporation", Published in the Official Gazette of
Honduras No. 23.992 of25 Aprill983
6-15 Resolution Conceming an Oil Concession Granted to "Central
American Mining and Oil lnc", Published in the Official
Gazette of Honduras No. 18.000 of 15 June 1963
6-16 Resolution Conceming an Oil Concession Granted to "Pacifie
Inland Oil Corporation", Published in the Official Gazette of
Honduras No. 19:022 of23 November 1966
6-17 Resolution Conceming an Oil Concession Granted to
"International Geophysical Explorations, Inc.", Published in
the Official Gazette of Honduras No. 19.045 of20 December
1966
6-18 Resolution Conceming an Oil Concession Granted to "Pure
Oil Company of Honduras, Inc.", Published in the Official
Gazette of Honduras No. 19.140 of 17 April 1967
6-19 Resolution Conceming an Oil Concession Granted to
"Compai'HaPetrolera Chevron Honduras", Published in the
Official Gazette of Honduras No. 19.320 of 18 November
1967
6-20 Resolution Conceming an Oil Concession Granted to "Lloyd
Honduras, Inc,", Published in the Official Gazette of
Honduras No. 19.6 . 68 of 11January 1969
6-21 Resolution Concerning an Oil Concession Granted to "LLE
Honduras, Inc.", Published in the Official Gazette of
Honduras No 19.912 of 1November 1969
6-22 Resolution Concerning an Oil Concession Granted to "Mobil
Exploration Honduras, Inc.", Published in the Official Gazette
of Honduras No. 19.913 of 3 November 1969 176
6-23 Resolution Conceming an Oil Concession Granted to
"Compafifa Petrolera Chevron Honduras", Published in the
Official Gazetteof Honduras No. 19.999 of 13 February 1970
6-24 Resolution Conceming the extension of an Oil Concession
Granted to "Union Oil Company of Honduras, Inc.",
Published in the Official Gazette of Honduras No. 20.960 of
23 April 1973
6-25 Resolution Concerning an Oil Concession Granted to
"Searidge Petroleum, Ltd.", Published in the Official Gazette
ofHonduras No. 21.444 of22 November 1974
6-26 Resolution Concerning an Oil Concession Granted to "Phillips
Petroleum Company Honduras", Published in the Official
Gazette of Honduras No 21.444 of 22 November 1974
6-27 Resolution Concerning the extension of an Oil Concession
Granted to "Union Oil Company of Honduras", Published in
the Official Gazette of Honduras No. 21.610 of 12 June 1975
6-28 Resolution Concerning a Permit for Surface Recognition of
Hydrocarbons Granted to "Texaco Caribbean, Inc.", Published
in the Official Gazette of Honduras No. 22.313 of 4 October
1977
6-29 Resolution Concerning a Permit for Surface Recognition of
Hydrocarbons Granted to "Texaco Caribbean, Inc.", Published
in the Official Gazette of Honduras No. 22.315 of 6 October
1977
6-30 Resolution Concerning a Permit for Surface Recognition of
Hydrocarbons Granted to "Texaco Caribbean Inc", Published
in the Official Gazette of Honduras No. 22.324 of 18October
1977
6-31 Resolution Concerning an Oil Concession Granted to "Mobil
Exploration Corporation", Decree 38 DRN of3 May 1966,
Published in the Official Gazette of Nicaragua No. 202 of 4
September 1968
6-32 Resolution Concerning an Oil Concession Granted to
"Western Caribbean Petroleum Company", Decree N.46-
DRN, Published in the Official Gazette ofNicaragua No. 117
of 29 May 1967
6-33 Resolution Concerning Renewal ofpetroleum concession to
"Western Caribbean Petroleum Company", Decree N.I29-
DRN, Published in the Official Gazette ofNicaragua No. 72
of 4 April 1970 177
6-34 Resolution Concerning Renewal of petroleum concession to
"Westem Caribbean Petroleum Company" and to "Occidental
ofNicaragua, Inc.", Decree No. 132-DRN, Published in the
Official Gazette ofNicaragua No. 140 of23 June 1976
6-35 Resolution Concerning an Oil Concession Granted to "Pure
Oil of Central America Inc", Published in the Official Gazette
of Nicaragua No. 204 of 6 September 1968
6-36 Resolution Conceming an Oil Concession Granted to
"Western Caribbean Petroleum Company" and to "Occidental
ofNicaragua Inc.", Published in the Official Gazette of
Nicaragua No. 259 of 14 November 1975
6-37 "Pure Oil of Central America Inc", Gazette No. 204, 6
September 1968 (Request for such concession in Published in
the Official Gazette ofNicaragua No. 200, 2 September 1963)
6-38 Resolution Conceming an Oil Concession Granted to "Union
Oil Company of Central America", Published in the Official
Gazette ofNicaragua No. 137 of20 June 1972
6-39 Resolution Conceming extension of oit concession to "Union
Oil Company of Central America", Published in the Official
Gazette ofNicaragua No. 190 of22 August 1975
6-40 Resolution Concerning an Oil Concession Granted to "Union
Oil Company of Central America", Decree 25-DRN,
Published in the Official Gazette ofNicaragua No. 130 of 12
June 1974
6-41 Resolution Concerning an Oil Concession Granted to "Union
Oil Company of Central America", Decree N. 73-DRN,
Published in the Official Gazette ofNicaragua No. 22 of27
January 1975
6-42 Resolution Concerning an Oil Concession Granted to "Texaco
Caribbean Inc", Published in the Official Gazette of
Nicaragua No. 154 of 10 July 1975
6-43 Resolution Conct::mingan Extension of Oil Concession
Granted to "Union Oil Company of Central America", Decree
no 170-DRN, Published in the Official Gazette ofNicaragua
No. 108 of18 May 1977
6-44 Resolution ConŒming an Extension of Oil Concession
Granted to "Union Oil Company of Central America", Decree
No. 190-DRN, Published in the Official Gazette ofNicaragua
No. 291 of 22 December 1977 178
6-45 Resolution Concerning an Oil Concession Granted to "Union
Oil Company of Central America", Decree no 206-DRN,
Published in the Official Gazette ofNicaragua No. 172 of3
August 1978
6-46 Resolution Concerning a Fishing Concession Granted to
"Mariscos de Centroamérica", with base in Cayos Vivorillos,
Decree No 109, Published in the Official Gazette of Honduras
No. 20.302 of 15 February 1971
6-47 Report of 19 April 1983 by the Commander in Chief of the
Honduran Navy about an Incident with a Nicaraguan Patrol
boat at 15°1O'OO"N 82°40'00"W
6-48 Report of 12 September 1983 by the Head of Intelligence of
the Honduran Armed Forces about an incident at 15°02'00'N
83°30'00"W)
6-49 Report of 16 October 1983 by the Commander in Chief of the
Honduran Navy about an Incident at l5°04'00'N
6-50 Report of 17November 1983 by the Head of Intelligence of
the Honduran Armed Forces about an incident at 15°01'OO"N
82°85'OO"W)
6-51 Report of 8 December de 1983 by the Commander in Chief of
the Honduran Navy about an incident at 15°03'OO'N
83°08'00"W
6-52 Report of 14 December 1983 by the Head of Intelligence of
the Honduran Armed Forces Affairs about an incident at
15°03'OO'N83°08'OO"W)
6-53 Logbook of the Honduras. Naval Base of Puerto Castilla
(Patrollingof 10-13 February 1989, around Media Luna and
Bobet cays)
6-54 Logbook of the Hibueras. Naval Base of Puerto Castilla
(Patrollingof 14 and 15 January 1990 at 15°05'66'N
82°38'64"W)
6-55 Logbook ofthe Hibueras. Naval Base of Puerto Castilla
(Patrollingof 16, 17,and 18 June 1990 at I6°18'74'N
80°40'26"W, Rosalind Bank)
6-56 Logbook of the Honduras. Naval Base of Puerto Castilla
(Patrollingof20-24 May 1991 at I5°16'00'N 82°38'00"W)
6-57 Logbook of the Hibueras. Naval Base of Puerto Castilla
(Patrollingof 3 November 1987 at South Cay)
6-58 Logbook of the Hibueras (Patrolling of 18 January 1989,
describing rescue offishing crew at South Cay) 179
6-59 Logbook of the Hibueras. Naval Base of Puerto Cortés
(Patrolling of 5 April 1987, describing incident in Media Luna
Cay)
6-60 Order 004/98 ofthe Fuerza Naval, 4 March 1998, (patrolling
at Bobel, Savanna Cay and South Cay, Alargate Reef, and
Rosalind and Thunder Knoll banks)
6-61 Order 15/99 ofthe Honduran Navy, 21 September 1999,
(patrolling at Bobel, Savanna Cay and South Cay, Alargate
Reef, and Rosalind and Thunder Knoll banks)
6-62 Order 003/96 of the Honduran Navy, 13 August 1996,
(patrolling at Media Luna Cay and Alargate Cay)
6-63 Sailing Directions (Enroute), Caribbean Sea, Vol. II, Defense
Mapping Agency, 5 Ed. (1995), p 93 et seq
6-64 East Coast of Central America and Gulf of Mexico Pilot,
Hydrographer of the Navy, 2nd Ed. (1993), p 72 et seq Gulf
(LIB\
of --~----
(\\'...\
,\-1ic,o 1'l"·'"'"'"•
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1
GUATEMALA •. '
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~~~~~~===~ of
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COLO.\IRIA
Pl.lh' 1 CAPE GRACIAS A DIOS
AND THE OFFSHORE AREA
Caribbean
LOCATION \tAP
C~clwmbok· Se a
Merc,rtorPrlltl'tlton
Datum.\..,GS-84
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" "' Platt>4 MARITIME AGREEMENTS
MARITIME AGREEMENTS IN THE C U BA
WESTERN CARIBBEAN
~! 1olomhia 1 Nicaro ~'.:~ua
1\,\t•r<,lto<l'f"i<'''"'"
[)diUr\\'(,1~'-1 Il~"''"·''~~'''" '»l'.)'!\"~"~
~'J:''''""'' '11ud>14
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(.,llndo,,m.on HAl T 1 "'"l:'"''"'4.\()
l>I,Of'd kt·~"t·~lno•,r.l4lh
(l'( olomhi.1U.S.A. 1':lï2
~\~.-. .,, >a<oqow~~""'r,..~,,
'-•~':"n'•'·'..~.1'>7}
llt"):"l••r u..d~"'hl>l·'Jbl
1 AMA 1CA w~l!"'' nml>''!"1B"01
---·-----l~~~-
(ÎJ Colomhia1Po~.n 17&ma
llt'V•'\j.\•"qu•l"'"ll"~hdt'~l\
'.----- ~IJ:I1nL.r):t'n.O<>Il "'1\01~71,
ll.t'J:Mt•r<>d•1 tht• U"'19~~lt'bn.o•rv l,
Rf'J:"!•l!,on n1~198r·
@ Colomhia 1 Co~t Rc.a1977
Caribbean ll'm,mdt~.ondr onntui '•'"Tru!~
!>r~:n.)n<lftonM~r<h17 1977
AJ:•~~n wulwt·~~~~\P~r~t<l!'d
Se a A~:r~~nwnol yPt rn tmu•
® Costa Rie.1P.1nama 1980
.(
(Jidf'wnlournoOtnrf'•hl>aldo,Trf'Jil
~•wwd"' PanamaCnvnl.,lrru2 t'JH(r
"'-l:'<.."ty~!~~~rsteri<"U"
'[ "~'<"f' hnwbP'n lo1<"~'<1'!~2
•Q.Colombia 1 Hondur 1a1~b
lup.-<"""H" R~mr••Ou~prrTt~•lv
':>r~rn~~•Andrt••Au~:ul~!1'!8~
RP~••IPrA!<" '-'"0l'umb~r21l'!~'l
L"-RP~r"r•U onhP• 161&0
.!) '2>Cnlombia 1 JamiiCÎ1993
'>•l:n<'d,•>Krng•tonun ...1'1'llt••12
ll.t·~"h•Ttt•U"- on M.l\ 11. l'r<U
Wt>)\o;tr.11ton._unrh.-rtll'l4\
cs). '''"'""''·•
~;Hondurils 1L'.K.11101
tC~yma çLlncbl
fi"'"'-·At•rmud<">" •O,,lrt••hhtrmt'
~'ll"tn'l'fd'~u·"alttnhcr 4. J(l{)l
1-\
.- ~
, ..,., ·/-- _, \
PA((f/C
1
OCEA 'i
Cû~T A ""''
R 1CA. \
~"
1 PAr-..'AMA 1
COLOMBIA
....0,_;- 1
(
PLilt(•.'i ( "\j,... l .. l ''-ll" ( l· B ·\
oll\•
MEXICO ...hJ,ml!,,,.
JAMAICA
--#:.
--------r'.,,
BEliZE
GUATEMAlA
!• ~"'1(""'"
---'"'_'o ____ _
HONDURAS
THE HONDURAS/CAYMAN ISlANDS
MARITIME BOUNDARY IN RElATION TO
ESTABUSHED HON DURAN Oll
p~~" ''
CONCESSION ACTIVITY
·'-''----'------,Ac-..-"''----:---··----·-~5
Legend·
Cc-n•<"><>n>t;oM
El
Pro~~0~~·•l..l
1 NICARAGUA
t---~--- -- --- ---- - ----
1o~'l.ll.•~·•lfM :·
Merr.JProj{'C1IO'l
D.1tuYvG~-1!4
fol1~...1<~:· ~(JI14 4 ''1.000
~
_____ Bl.,w<d-~·-·t..•.>ntlo t-'lU> dt• ---- .--- ------ ~
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"'
OCEAN
~~.
cosr. RICA 1
Platr lJ N
/~
f
·.:~il>/-~~-~·~-
Plah· 7 ____ _.=.,.-:_·- ______ :;___,_
1
1
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,. 1
,'-· 1"
~- 1 f 1 ( .()
1 ,.
Platl' 8(A daim rejected btheArbitraA ward of the King of Spin1906)
1
-r·
lnils 1904claim Nicaragua requested the Tribun.JI to adopt
as a lint>".the mnidiJn which passes thro11gh Cdpe Cam<U6n,
winch foflows this meridianun tif it (oses itself in thfe,:JYifl~
toNicuagua Swan lsfdnd." (translation by Hondur,.J<>)
"'Allegatioof Nicar<~ gnute Arbitration Proceeding<;befort'
the King ofSpdin." ·28th October 1904 (pdgf's 451-lbl f'fl''"'''
ADMINISTRATIVE REGION OF ~/>o,J/
GRACIAS A DIOS
Caribbean
\lndu§Ï\11!'lsl.t .nd ~fish•r i.enks)
h>hongll•o>•
Sea
\krl,lfPmw~t•on
O.ltumWC">cl4
s._·,1ie 1 !.Ul()OUU
C.1mar6n L __________________ ___j
1 -·
.·.?.'.
0_,~nhd.<
-~~ -..
CJ)OS~'"'-"'1/o
••n/(,,.,,.
B.nr<lO l>n<l'n
i>J.!U~.l
:
8,!n((J
rJ.. I
L (,Jhof,t/;o
0.\huJ.o; Cur./,i
------·-----------
B.~nJ..
GR\CI\S
f.J~~nJ._.
-\ W,uutd 8.ln(o
d<•l CJh•, {~
D 10 S ,•'
- ~~'"'r·",,.''·'
Pt·rt/?,,,}(,1\'
HONDURAS
'r,,n.....,,"'·"
NICARAGUA
Pl.lll' Ill { "\\'\[',,1... < l B -\
il"'
MEXICO (.<,r.uJt.ilrn,.,,
'''·""'
lAMAI CA
lan~n
t---~
1
BELIZE
•. _c
c
'·'
GUATEMALA '·'
"ld·r>b~·~l> HONDURAN OIL CONCESSION
. ·~·
LICENSINGN THE WESTERNCARIBBEAN
'
! (~t ~:; -:~ ~- -. THE OffPfTII:(QNClS~MAP Of HONDURAS
L<t:{'nd.
s.&nS.I~adot. (oon<'"''''"'''"'U'
El
N 1CAR AGU A'""""'""o
M('l'r~torPfO[('(!oon
Sca1 4 47G.OOO
M,G•~n<i<
,....~
PACJFIC
OCE ·\"i
COSTA RICA
Plate 11 ( -\) \\·\1"1.\'\,[)'>
l'l\1
MEXICO
'
:IAMAICA,
~'~
'""c·r----" . -----~np.!Qn_, . ..,
1----i ,.
__[
1
Hr>ndur1;
,odt'<
r-:- ·-·----.--
1 t.r .. ~~·~,o':"-·
l.l):.<ln.l !.~'",,
--------------;-=!'
! -~
NICARAGUAN Oll CONCESSION
liCENSING IN THEWESTERNCARIBBEAN
fROM PHIOCONSlJlTANlS SYNOPSIS: 197'l
Lq~end:
(,.,.,.····~-
NICARAGUA
"--N(~lPri{'(_IUl!'l
lw...,,...,~, Oo~tum·\V 1\~
':>(,lit·.1·4,474 ()llO
•lhv<I•~•Q""
PACIFIC
·"o
~'~ : -. - --- -
~-·~~..
ll•'''''''l
COSTA ' RICA
PI.JIC12 1 1--
l 1 L_t----_____:.----+----1
,---,~_--------t---+---~---------
w--f--
l' -- =, -~ -· -1----t -----f--J-Q ---t-------,-J__!____j-----r---1-----t-------'-r~
HONDURAS -
fiondur.Js
1 Caribbean
1 1~.'!'lfn''"'!uth
'!14:;),>Ptl i''
===="''NICARAGUA
(
r
Platt• 13 ( \~\1 \' 1'-1 ., 'IJ<.. < l' B•\
,,,
MEXICO (,,,,,,(1(,""'''
l,j,"'J
..
Btlmo~n
BELIZE
Caribbean
Se a
HONDURAN FISHING ZONES
(Inclusive of RooiltoilonilndGuanajil)
Men dior P•uwd>on
Dalwm.\1\GS·fl~
s, al1 ~.47'110
,~..,..,.,
M.n~JW 1·e
·-· -.;:\;i.;.,,,~-·
lonolcl"·
PACIFIC
OCEAI\
COSTA RICA
Plaie 14 ( L.B1\
(\)\1.\'\1"1·...11 -~:.::·'''
•lll.•
(,•.•"";;,,~;;.~
AMAICAI
-- L!'K ..~\2!1-1~
Pu~r,n
--t--'' .1-""~
(..,,,.d.ol<t"".-d<w
NICARAGUA; Caribbean
Se a
_,_
PA Cl fiC
'~~"
.,"'·'~"·'
OCEAN
!'~\
RICA 1
""
Plate 15 SATELLITEANALYSISOF COASTAL
CHANGES ATCAPEGRACIAS A DIOS
(llJ7lJ. 111011
\\.lt~l"•:
\111•1'•
s,alt': ' ./>.\111
Proj('clion: (, "''''·'1 fr,H"''''''
Datum: \\(. ~.:
1
I'I.Jie1 1 e-ctionOne and Section Two
HONDURAN METHOD OF DELIMITATION
l.ruvt•"••llr""~~M<>f<.o!nrtLfMo
fhturHwc~ 84
~·:~1.tJOO
T.,.rminu~ PtintL.1nd B<>und,uy
t1459.1\'N-!IOK.ll'WI
()oo,,; l.~"lIlfJ"t>ound.oro..sdt-podt'd.>rf' .lorollus!r.;ll~f'j>liiP'"'!'<
.or>dlno~""'""'~-u"t'h"o)n~UIIV<".
~..·~."<. ,l"<~ ""'"""''I·I'L'~S~..""lb.l-il;r>d.,.,"'f""
.lC~rfftlar>•~W
Coa~t aontigurati11n digitiud îrom lR~mutS ~~nsi IgSI
~~~~-~h~~uti1n01n.1 tk.._(n_April7,_2000___ _ _ ,
Section Three
8,1/!(11 ~ -\r<alt~>de-1<~
dt'! "
Cabo Fafso C.Jho -:,\::' .V!Pdolund
-----~ \--------------~--"'--- ----~-- ---- HONDURAN METHOD OF DELIMITATION
'- ~:~:,~~~·,!~~on
'-.~1.,,,(l()lj
...."'"'"-''"'
logwuod C1v ...
6ulmr<"~.-d}
S.:~v<tnna "-"
C.:~yodcla Reets ~
Hondur.rn Metloaluna
,Rf't-'11
Territorial ·SavannaCay~~ " 1)1"-ldoll"mJ]I<>O.Ii OOundlr>.-. •ifdlu•tr~to•l'purpü'W">•.nh
~uddlf'l)<)]<,...~roi•J•r!hnro],ill'<"
Sea Porp(HSE' <t~ '-·?
~......,s.,..,,...,l"''-'''""""""''"'"' "~'l~lLn,.'l""'"".~._.
'C<'<O"~"'I'"P"'I"I~<~'VOI10~'
(,....,,.," «W""~""'""""""'-....~c"(~•.orui! '&J>O. !.,'.'
'81 1<1 1>81;-1'11>0/t'810'~.....,...oo..-.<m.al.r·>"•••W -ldr<--·t•"'
Ï'--"\ __ lràlaya __
''"!I'N-~.... ._! --;; -. :-·-c;:...-__=..:::-==-=--r=·:::=~..:....:......:---=---
\..~,•- , ~Lape Grac r.ts ()ws
Bahia <1~ [.
Cr.1cias.10ios~ ,,_.<1
•',\
1.
Nicaraguan
1l!-!!lfld
dt• Territori<~l
Bi..mun,, Se<~
'-"~·
t~nm l<·rrolo•,..,,
Counter-Memorial of the Republic of Honduras