Non-Corrigé
Uncorrected
CR 2007/1
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2007
Public sitting
held on Monday 5 March 2007, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Maritime Delimitation between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras)
________________
VERBATIM RECORD
________________
ANNÉE 2007
Audience publique
tenue le lundi 5 mars 2007, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire de la Délimitation maritime entre le Nicaragua et le Honduras dans
la mer des Caraïbes (Nicaragua c. Honduras)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieigtgins
Vice-Prsi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc TorresBernárdez
Gaja
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-Kh.vsce-prh,ident
RanMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Keith
Sepúlveda-Amor
Bennouna
Skjoteiskov,
BeTroáesz.
jugesaja, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambassa dor of the Republic of Nicaragua to the Kingdom
of the Netherlands,
as Agent, Counsel and Advocate;
H.E. Mr. Samuel Santos, Minister for Foreign Affairs of the Republic of Nicaragua,
Mr.Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Member of the International
Law Commission, Emeritus Chichele Professor of Public International Law, University of
Oxford, member of the Institut de droit interna tional, Distinguished Fellow, All Souls College,
Oxford,
Mr. Alex Oude Elferink, Research Associate, Neth erlands Institute for the Law of the Sea, Utrecht
University,
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member and former Chairman of
the International Law Commission,
Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid,
as Counsel and Advocates;
Mr.Robin Cleverly, M.A., DPhil, CGeol, F. G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Mr. Dick Gent, Law of the Sea Consultant, Admiralty Consultancy Services,
as Scientific and Technical Advisers;
MsTania Elena Pacheco Blandino, First Secretary, Embassy of the Republic of Nicaragua in the
Kingdom of the Netherlands,
MsNadine Susani, Doctor of Public Law, Centre de droit international de Nanterre(CEDIN),
University of Paris X-Nanterre,
as Assistant Advisers;
Ms Gina Hodgson, Ministry of Foreign Affairs,
Ms Ana Mogorrón Huerta,
as Assistants.
The Government of the Republic of Honduras is represented by:
H.E. Mr. Max Velásquez Díaz, Ambassador of the Republic of Honduras to the French Republic,
H.E. Mr. Roberto Flores Bermúdez, Ambassador of the Republic of Honduras to the United States
of America,
as Agents; - 5 -
Le Gouvernement de la République du Nicaragua est représenté par :
S. Exc. M. Carlos José Arguëllo Gómez, ambassad eur de la République du Nicaragua auprès du
Royaume des Pays-Bas,
comme agent, conseil et avocat ;
S. Exc. M. Samuel Santos, ministre des affaires étrangères de la République du Nicaragua,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre du barreau d’Angleterre, membre de la
Commission du droit international, professeur ém érite de droit international public (chaire
Chichele) à l’Université d’Oxford, membre de l’Institut de droit international,Distinguished
fellow au All Souls College d’Oxford,
M. Alex Oude Elferink, research associate à l’Institut néerlandais du droit de la mer de
l’Université d’Utrecht,
M. Alain Pellet, professeur à l’Université Paris X- Nanterre, membre et ancien président de la
Commission du droit international,
M. Antonio Remiro Brotóns, professeur de droit international à l’Universidad autónoma de Madrid,
comme conseils et avocats ;
M. Robin Cleverly, M.A., DPhil, CGeol, F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. Dick Gent, consultant en droit de la mer, Admiralty Consultancy Services,
comme conseillers scientifiques et techniques ;
Mme Tania Elena Pacheco Blandino, premier secrétaire de l’ambassade de la République du
Nicaragua au Royaume des Pays-Bas,
Mme Nadine Susani, docteur en droit public, Centre de droit international de Nanterre (CEDIN),
Université de Paris X-Nanterre,
comme conseillers adjoints ;
Mme Gina Hodgson, ministère des affaires étrangères,
Mme Ana Mogorrón Huerta,
commaessistantes .
Le Gouvernement de la République du Honduras est représenté par :
S. Exc. M. Max Velásquez Díaz, ambassadeur de la République du Honduras auprès de la
République française,
S. Exc. M. Roberto Flores Bermúdez, ambassad eur de la République du Honduras auprès des
Etats-Unis d’Amérique,
comme agents ; - 6 -
H.E. Mr.Julio Rendón Barnica, Ambassador of the Republic of Honduras to the Kingdom of the
Netherlands,
as Co-Agent;
MrP.ierre-Marie Dupuy, Professor of Public International Law, University of Paris
(Panthéon-Assas), and the European University Institute in Florence,
Mr. Luis Ignacio Sánchez Rodríguez, Professor of International Law, Universidad Complutense de
Madrid,
Mr.Christopher Greenwood, C.M.G., Q.C., Profess or of International Law, London School of
Economics and Political Science,
Mr. Philippe Sands, Q.C., Professor of Law, University College London,
Mr.Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI
Panthéon-Sorbonne,
Mr. David A. Colson, LeBoeuf, Lamb, Green & MacRae, LL.P., Washington, D.C., member of the
California State Bar and District of Columbia Bar,
Mr. Carlos Jiménez Piernas, Professor of International Law, Universidad de Alcalá, Madrid,
Mr. Richard Meese, avocat à la Cour d’appel de Paris,
as Counsel and Advocates;
H.E. Mr. Milton Jiménez Puerto, Minister for Foreign Affairs of the Republic of Honduras,
H.E. Mr.Eduardo Enrique Reina García, Deputy Mini ster for Foreign Affairs of the Republic of
Honduras,
H.E. Mr. Carlos López Contreras, Ambassador, National Counsellor, Ministry of Foreign Affairs,
H.E. Mr.Roberto Arita Quiñónez, Ambassador, Director of the Special Bureau on Sovereignty
Affairs, Ministry of Foreign Affairs,
H.E. Mr. José Eduardo Martell Mejía, Ambassador of the Republic of Honduras to the Kingdom of
Spain,
H.E. Mr. Miguel Tosta Appel, Ambassador, Chairm an of the Honduran Demarcation Commission,
Ministry of Foreign Affairs,
H.E. MsPatricia Licona Cubero, Ambassador, Advi ser for Central American Integration Affairs,
Ministry of Foreign Affairs,
as Advisers;
Ms Anjolie Singh, Assistant, University College London, member of the Indian Bar,
Ms Adriana Fabra, Associate Professor of International Law, Universitat Autónoma de Barcelona, - 7 -
S. Exc. M. Julio Rendón Barnica, ambassadeur de la République du Honduras auprès du Royaume
des Pays-Bas,
comme coagent ;
M. Pierre-Marie Dupuy, professeur de droit in ternational public à l’Université de Paris
(Panthéon-Assas) et à l’Institut universitaire européen de Florence,
M. Luis Ignacio Sánchez Rodríguez, professeur de droit international à l’Université Complutense
de Madrid,
M. Christopher Greenwood, C.M.G., Q.C., professeur de droit international à la London School of
Economics and Political Sciences,
M. Philippe Sands, Q.C., professeur de droit au University College de Londres,
M. Jean-Pierre Quéneudec, professeur émérite de droit international à l’Université ParisI
(Panthéon-Sorbonne),
M. David A. Colson, LeBoeuf, Lamb, Greene & MacRae, L.L.P., Washington, D.C., membre du
barreau de l’Etat de Californie et du barreau du district de Columbia,
M. Carlos Jiménez Piernas, professeur de droit international à l’Université de Alcalá (Madrid),
M. Richard Meese, avocat à la cour d’appel de Paris,
comme conseils et avocats ;
S. Exc. M. Milton Jiménez Puerto, ministre des affaires étrangères de la République du Honduras,
S. Exc. M. Eduardo Enrique Reina García, vice-mi nistre des affaires étrangères de la République
du Honduras,
S. Exc. M. Carlos López Contreras, ambassadeu r, conseiller national au ministère des affaires
étrangères,
S. Exc. M. Roberto Arita Quiñónez, ambassadeur, directeur du bureau spécial pour les affaires de
souveraineté du ministère des affaires étrangères,
S. Exc. M. José Eduardo Martell Mejía, ambass adeur de la République du Honduras auprès du
Royaume d’Espagne,
S. Exc. M. Miguel Tosta Appel, ambassadeur, président de la commission hondurienne de
démarcation du ministère des affaires étrangères,
S. Exc. Mme Patricia Licona Cubero, ambassad eur, conseiller pour les affaires d’intégration
d’Amérique Centrale du ministère des affaires étrangères,
comme conseillers ;
Mme Anjolie Singh, assistante au University College de Londres, membre du barreau indien,
Mme Adriana Fabra, professeur associé de dro it international à l’Université autonome de
Barcelone, - 8 -
Mr. Javier Quel López, Professor of International Law, Universidad del País Vasco,
Ms Gabriela Membreño, Assistant Adviser to the Minister for Foreign Affairs,
Mr. Sergio Acosta, Minister Counsellor, Embassy of the Republic of Honduras in the Kingdom of
the Netherlands,
as Assistant Advisers;
Mr. Scott Edmonds, Cartographer, International Mapping,
Mr. Thomas D. Frogh, Cartographer, International Mapping,
as Technical Advisers. - 9 -
M. Javier Quel López, professeur de droit international à l’Université du Pays basque,
Mme Gabriela Membreño, conseiller adjoint du ministre des affaires étrangères,
M. Sergio Acosta, ministre conseiller à l’amba ssade de la République du Honduras au Royaume
des Pays-Bas,
comme conseillers adjoints ;
M. Scott Edmonds, cartographe, International Mapping,
M. Thomas D. Frogh, cartographe, International Mapping,
comme conseillers techniques. - 10 -
The PRESIDENT: Please be seated. The sitting is now open.
The Court meets to hear the oral argumen ts of the Parties in the case concerning the
Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras).
I note initially that Judge Abraham, for reasons made known to me, is unable to take his seat
on the Bench today.
I further note that, since the Court does not include upon the Bench a judge of the nationality
of either of the Parties, both Parties have availed themselves of the right, under Article31,
paragraph2, of the Statute, to choose a judge ad hoc . Nicaragua chose Mr.GiorgioGaja.
Honduras originally nominated Mr.JulioGon zálezCampos. Following the resignation of
Mr. González Campos, Honduras chose Mr. Santiago Torres Bernárdez.
Article 20 of the Statute provides that “[e]very Member of the Court shall, before taking up
his duties, make a solemn declaration in open court that he will exercise his powers impartially and
conscientiously”. Pursuant to Article 31, paragraph 6, of the Statute, that same provision applies to
judges ad hoc. Notwithstanding that Mr.Torres Bernárdez has been a judge ad hoc and made a
solemn declaration in different previous cases and Mr.Gaja in one previous case, Article8,
paragraph 3, of the Rules of Court provides that they must each make a further solemn declaration
in the present case.
In accordance with custom, I shall first say a few words about the career and qualifications
of each judge ad hoc before inviting him to make his solemn declaration.
Mr.Santiago Torres Bernárdez, of Spanish na tionality, is very well known to the Court.
Following a long tenure at the Codification Division of the United Nations Office of Legal Affairs,
Mr. Torres Bernárdez served as Registrar of this C ourt from 1980 to 1986. He has been chosen as
judge ad hoc on numerous occasions, in the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras) case, the Fisheries Jurisdiction (Spain v. Canada) case, the Legality of
Use of Force (Yugoslavia v. Spain) case, the Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Qatar v. Bahrain) case and most recently the case concerning Pulp
Mills on the River Uruguay (Argentina v. Uruguay). Mr. Torres Bernárdez is a member, inter alia, - 11 -
of the Permanent Court of Arbitration and of the Institut de droit interna tional. In addition,
Mr.TorresBernárdez is the author of many publ ications on questions of international law and
international organizations. He h as held various teaching positions and, in particular, has taught a
course concerning intervention before the Court at the Hague Academy of International Law.
Mr. Giorgio Gaja, of Italian nationality, is Pr ofessor at the Faculty of Law of the University
of Florence and a former Dean of that Faculty. He has held numerous other teaching posts around
the world including at the European University Instit ute, the University of Paris I and the Graduate
Institute of International Studies in Geneva, a nd has also taught at the Hague Academy of
International Law. Mr. Gaja has been a Memb er of the International Law Commission since 1999
and is a member of the Institut de droit intern ational. He has represented his Government on a
number of occasions including as delegate to the Vienna Conference on the Law of Treaties
between States and International Organizations and between International Organizations. Mr. Gaja
has appeared before this Court as counsel to the Italian Government in the Elettronica Sicula S.p.A.
(ELSI) case. He was also chosen as judge ad hoc in one of the cases concerning Legality of Use of
Force, namely in the Serbia and Montenegro v. Italy case. Mr.Gaja has published numerous
works and articles in diverse fields of intern ational law, from European human rights law to
international criminal law.
In accordance with the order of precedence fixed by Article7, paragraph3, of the Rules of
Court, I shall first invite Mr.Torres Bernárdez to make the solemn declaration prescribed by the
Statute, and I would request all those present to rise.
Mr. TORRES BERNÁRDEZ :
“I solemnly declare that I will perform my duties and exercise my power as a
Judge, honourably, faithfully, impartially and conscientiously.”
The PRESIDENT: Thank you. I shall now inv ite Mr. Gaja to make the solemn declaration
prescribed by the Statute.
Mr. GAJA :
“I solemnly declare that I will perform my duties and exercise my powers as
Judge honourably, faithfully, impartially and conscientiously.” - 12 -
The PRESIDENT: Thank you. Please be seated.
I take note of the solemn declarations ma de by Mr.TorresBernárdez and Mr.Gaja and
declare them duly installed as judges ad hoc in the case concerning Maritime Delimitation between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras).
I shall now recall the principal steps of the procedure so far followed in this case.
On 8December 1999 the Republic of Nicaragua filed in the Registry of the Court an
Application dated the same day, instituting pr oceedings against the Republic of Honduras in
respect of a dispute relating to the delimitation of the maritime areas appertaining to each of those
States in the Caribbean Sea.
In this Application, Nicaragua contended th at the Court had jurisdiction to entertain the
dispute by virtue of Article XXXI of the Ameri can Treaty on Pacific Settlement, officially known,
according to Article LX thereof, as the “Pact of Bogo tá”, and by virtue of the declarations made by
the two Parties accepting the jurisdiction of the Court, as provided for in Article 36, paragraph 2, of
the Statute of the Court.
Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the Registrar
addressed to States parties to the Pact of Bogot á the notifications provided for in Article63,
paragraph1, of the Statute of the Court. In accordance with the provisions of Article69,
paragraph3, of the Rules of Court, the Registrar also addressed to the Organization of American
States the notification provided for in Article34, paragraph3, of the Statute. The Registrar
subsequently transmitted to the Organization of American States copies of all of the written
pleadings filed in the case and asked the Secretar y-General of that Organization to inform him
whether or not it intended to present observatio ns in writing as provided for in Article69,
paragraph 3, of the Rules of Court. In response, the Registrar was informed that the Organization
of American States did not intend to submit any such observations.
Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the Registrar
addressed to States parties to the United Nations Convention on the Law of the Sea of
10December1982 the notifications provided for in Article63, paragraph1, of the Statute of the
Court. In addition, the Registrar addressed to th e European Union, which is also party to that
Convention, the notification provided for in Artic le43, paragraph2, of the Rules of Court, as - 13 -
adopted on 29 September 2005, and asked the Secret ary-General of the Council whether or not the
European Union intended to furnish observations unde r that provision. In response, the Registrar
was informed that the European Union did not intend to submit observations in the case.
By an Order dated 21March2000, the Presi dent of the Court fixed 21March2001 and
21 March 2002, respectively, as the time-limits for the filing of the Memorial of Nicaragua and the
Counter-Memorial of Honduras; those pleadings were duly filed within the time-limits so
prescribed.
At the time of the filing of the Counter-Mem orial, Honduras also filed two sets of additional
documents which were not produced as annexes thereto, but were, according to Honduras, provided
only for informational purposes. At a meeting held by the President of the Court with the Agents
of the Parties on 5June2002 both Parties agreed on the procedure to be followed with regard to
these additional documents. In accordance with that procedure, by a letter of 25June2002, the
Co-Agent of Honduras provided the Registry w ith a list indicating which of the additional
documents were to be produced as annexes. Thos e additional annexes to the Counter-Memorial of
Honduras were subsequently duly filed in the Registry.
By an Order of 13 June 2002, the Court authorized the submission of a Reply by Nicaragua
and a Rejoinder by Honduras, and fixed 13Janua ry2003 and 13August2003 as the respective
time-limits for the filing of those pleadings. The Reply of Nicaragua and the Rejoinder of
Honduras were filed within the time-limits thus fixed.
The Governments of Colombia and Jamaica, by letters dated 22 May 2001 and 6 May 2003,
respectively, requested to be furnished with copies of the pleadings and documents annexed
thereto. Having ascertained the views of the Parties pursuant to Article53, paragraph1, of the
Rules of Court, the Court decided to grant each of those requests. The Government of El Salvador,
by letter of 31August2004 and later on by lette r of 8September2006, requested to be furnished
with copies of the pleadings and annexed documents in the case. Having ascertained the views of
the Parties pursuant to Article 53, paragraph 1, of the Rules of Court, the Court decided that it was
not appropriate to grant those requests.
In a letter dated 2February2007, the Agen t of Nicaragua informed the Court that his
Government wished to produce new documents pur suant to Article56 of the Rules of Court, - 14 -
namely 11 documents and one satellite image. By a letter dated 15 February 2007, the Co-Agent of
Honduras informed the Court that his Govern ment “is entitled to oppose the production of
documents2 to 11. However, Honduras will leave it to the Court to decide.” The Co-Agent of
Honduras further informed the Court that during the oral proceedings the Government of Honduras
intends to use updated satellite imagery of the area and to present a brief video.
By letters dated 26February2007, the Registrar informed the Parties that on
23February2007, the Court decided that the first document omitting only two paragraphs had
already been included in the case file as an annex to the Reply of Nicaragua and was not therefore a
new document. The Registrar further informed th e Parties that the Court considered that the
satellite imagery was “part of a publication readil y available” within the meaning of Article56,
paragraph4, of the Rules of Court, and as such could be referred to duri ng the oral proceedings.
Finally, he informed them that the Court had decided, after considering the views of the Parties and
in light of Practice Direction IX, not to authorize the production of documents 2 to 11 inclusive.
By letter dated 23 February 2007 and received on 26 February 2007, the Agent of Nicaragua
provided the Court with his Government’s comme nts on the letter from the Co-Agent of Honduras
dated 15 February 2007. The Agent of Nicaragua al so stated that his Government “cannot agree to
give carte blanche to Honduras for presenting ‘material’ during the oral pleadings which Nicaragua
has not had adequate opportunity of reviewing or even of being informed of its content at this late
stage in the proceedings”.
By letter dated 26 February 2007 the Co-Age nt of Honduras transmitted to the Court the
video which his Government intended to present dur ing the oral proceedings. Copies of the video
material were transmitted to the other Party which was asked to inform the Court of any
observations it might wish to make in this rega rd. By letter of 27February2007, the Agent of
Nicaragua informed the Court of the views of hi s Government on the matter. Nicaragua does not
oppose the presentation of the video material as such , but it does not agree to it either; Nicaragua
leaves it to the Court to decide and the Court will shortly announce its decision.
* - 15 -
Having ascertained the views of the Parties, the Court decided, pursuant to Article53,
paragraph 2, of its Rules, that copies of the pl eadings and the documents annexed would be made
accessible to the public on the opening of the oral proceedings. Further, in accordance with the
Court’s practice, the pleadings without their annexes will be put on the Court’s website from today.
*
I note the presence at the hearing of the Agents , counsel and advocates of both Parties. In
accordance with the arrangements on the organizati on of the procedure which have been decided
by the Court, the hearings will comprise a first and a second round of oral argument.
*
The first round of the oral argument will begin today and will close on
Friday 16 March 2007. The second round of or al argument will begin on Monday 19 March 2007
and will close on Friday 23 March 2007.
*
Nicaragua, which is the Applicant in the case, w ill be heard first and I now give the floor to
His Excellency Mr. Carlos Argüello Gómez, Agent of Nicaragua.
Mr. ARGÜELLO: Thank you, Madam President, distinguished Members of the Court.
Before beginning my address, permit me to mention two short points on our presentation. In
the first place, the appropriate references to al l the documents cited in the presentation of the
Nicaraguan team are included in the text direc tly given to the Registry for facilitating the
translation. Secondly, the copies of the illustrati ons used in the presentation and which have been
included in the folders prepared for ease of use by the Members of the Court are identified by the
initial of the names of the speakers in the corr esponding number of each graphic. Each speaker
will refer only to the number of the graphics. - 16 -
1. Madam President, distinguished Members of the Court, the Republic of Nicaragua has
been before this Court more often than any othe r country of Latin America and even yet of most
other countries in the world. This record of itself is the highest tribute that any country can pay to
the outstanding work this Court has accomplished as the principal judicial organ of the United
Nations in bringing about the peaceful settlement of international disputes.
2. I draw attention to the fact th at the Foreign Minister of Nicaragua,
Mr. Samuel Santos López, is present here with us as further testimony of the highest respect of the
Nicaraguan Government for this Court.
3. Madam President, Members of the Court, it has been my honour to appear before the
Court as Agent of the Republic of Nicaragua in all the cases it has had before the Court since 1984
and therefore it is a renewed honour for me to be again before this highest world tribunal.
4. My presentation will include argument that would normally have been delivered
independently of the traditional statement by the Ag ent. On consideration, it seemed artificial to
close one statement and start another when the one could easily segue into the other. Thus, this
presentation will address such issues as the history of the dispute, the critical date and the evidence.
Issues before the Court
5. The basic issue before the Court is th at whilst Honduras “maintains that there is a
boundary between the maritime spaces of the two St ates which has its origins in the principle of
uti possidetis iuris and which is firmly rooted in the practice of both Honduras and Nicaragua and
1
confirmed by the practice of third States” , Nicaragua for her part “has consistently maintained the
position that its maritime Caribbean boundary with Honduras has not been delimited” 2.
6. In its submissions, Nicaragua asked the Court to adjudge and declare that:
“The bisector of the lines representing the coastal fronts of the two parties, as
applied and described in paragraphs 22 and 29 [of our Memorial] and illustrated on the
graphic [now on the screen, graphic 1], c onstitutes the boundary for the purposes of
the delimitation of the disputed areas of the continental shelf and exclusive economic
zone in the region of the Nicaraguan Rise.
The approximate median line, as describ ed in paragraphs 27 and 29, Chapter X
[of the Nicaraguan Memorial and illustrated in the graphic before us], constitutes the
1
Counter-Memorial of Honduras, Vol. 1, Chap. I, para. 1.4.
2Memorial of Nicaragua, Vol. I, Chap. I, para. 1.6. - 17 -
boundary for the purpose of the delimitation of the disputed areas of the territorial sea,
extending to the outer limit of the territo rial sea, but in the absence of a sector
coterminous with the mouth of the River Coco and with the terminus of the land
boundary.” (MN, Vol. I, p. 167.)
7. In its written pleadings Nicaragua further e xplained that there were certain minor features
in the area in dispute such as islets, cays and rocks and that the sovereignty over these also
“disputed areas” ⎯ in the words of Nicaragua’s submissions ⎯ should devolve on the Party on
whose side of the line of maritime delimitati on they were located. Honduras has questioned
whether the issue of sovereignty over these small feat ures is really before the Court. I hasten to
reply that this issue is certainly before the Court, as Honduras well knows since it devoted nearly
40 per cent of its written pleadings to alleging sovereignty over these features. On this question of
the islets and cays I will add some comments further on, but the question will be addressed
in extenso by my colleague Dr. Alex Oude Elferink.
8. The position of Nicaragua, as indicated before, is that there is no delimitation in place and,
therefore, that in order to effect a delimitation th at will achieve an equitabl e result, this line has to
be based first of all on the geography of the area in question. In the Gulf of Maine case, the
Chamber of the Court indicated the criteria that should be applied for reaching an equitable result:
“international law... lay(s) down in general that equitable criteria are to be applied,
criteria . . . which are essentially to be dete rmined in relation to what may be properly
called the geographical features of the area” ( Delimitation of the Maritime Boundary
in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J.
Reports 1984, p. 246, para. 176).
9. Therefore, even in this general intr oduction to the Nicaraguan pleadings, a summary
overview of the physical aspects of the coasts faci ng the area in dispute is useful for focusing on
the questions in issue.
10. As can be appreciated in the illustration of the regional geography, now on the screen as
graphic2, the coasts of Nicaragua and Honduras me et at the mouth of the River Coco where the
departing point for the delimitation is located. At this meeting point at the mouth of the Coco, the
coasts turn very sharply with the result that the Nicaraguan Caribbean coast basically faces east and
that the Honduran Caribbean coast basically f aces north. Any general description of the two
countries highlights the different compass points faced by their coasts. For example, the following
description taken from the Encyclopedia Britannica is representative: - 18 -
“ Republic of Nicaragua , Spanish República de Nicaragua country of Central
America, bounded by Honduras on the north, the Caribbean Sea on the east ,
CostaRica on the south, and the Pacific Ocean on the west.” ( Encyclopedia
Britannica, 2006 ed.)
Then:
“ Republic of Honduras , Spanish República de Honduras country of Central
America situated between Guatemala and El Salvador to the west and Nicaragua to the
south and east. The Caribbean Sea washes its northern coast , the Pacific Ocean its
narrow coast to the south.” (Encyclopedia Britannica, 2006 ed.)
11. This elementary description of the locati on of each of the Parties with respect to their
surroundings clearly indicates that Nicaragua is bounded on the north by Honduras and on the east
by the Caribbean Sea, whilst Honduras is bounded by Nicaragua to the east and by the Caribbean
on the north. But, as Dr.OudeElferink will expl ain and rebut, Honduras claims that it has an
eastern coastal front on the Caribbean and not only that it has this imaginary eastern coastal front
but that this front is the only relevant coast to be taken into consideration in any delimitation with
Nicaragua. The Britannica apparently missed this important Honduras coastline facing east
towards the Caribbean!
12. Any delimitation in an area in which the coas ts of the riparian States constantly turn and
change compass directions until finally formi ng an enclosed oval-shaped sea, such as the
Caribbean, can hardly be delimited in any e quitable fashion by drawing a line from the land
boundary out to the sea that follows lines of latitude or of longitude. After all, these geographical
lines of latitude and longitude are simply conven tional lines, imaginary lines or circles around the
earth, used to form grids on a map in order to identify more easily the location of places on earth.
13. Nonetheless, Honduras claims that there is a traditional line of delimitation in place
between Nicaragua and Honduras that follows a pa rallel of latitude from a point in the mainland
out east to the Caribbean Sea. Honduras also cl aims that this so-called “traditional line of
delimitation” is supposedly rooted in the uti possidetis juris stemming from the colonial period in
the early nineteenth century, and that it took car e of all the maritime spaces that Nicaragua could
possibly claim based on the recent advances of the law of the sea. This line apparently brought
about with incredible foresight the delimitation, not of the 3- or 6-mile maritime limits recognized
by international law in that age, but also of th e continental shelf, the exclusive economic zone and
the 12-mile territorial sea which are the areas that Nicaragua is requesting the Court to delimit. - 19 -
14. In front of us is graphic3 representi ng figureVIII of the Nicaraguan Memorial. This
figure illustrates what would be the result of dividing the maritime areas between the Parties on the
basis of the imaginary lines used in cartography to divide the spaces on heavenly bodies. As can be
appreciated in the illustration, the use of a meri dian of longitude running north would deprive
Honduras of substantial maritime areas in the same way as the use of a parallel of latitude running
east would also deprive Nicaragua of similarly substantial maritime areas.
15. The inequitable results that the use of parallels or meridians may bring in certain
situations are a well-known question. As indicat ed in the Memorial of Nicaragua (Chap.II,
para. 36) experienced legal advisers have pointed out that:
“[T]he use of parallels or meridians is effectively limited to situations where the
general direction of the coasts in question is roughly north-south or east-west. In other
situations this method will produce precisely the result it is meant to avoid: the
inequitable cut-off of the maritime extens ions of one or more of the parties.”
(Legault,L. and Blair Hankey, International Maritime Boundaries , Vol.I, 1993,
p. 212.)
16. When dealing with situations where the general direction of the coasts of the parties
involved follows a generally straight line, it occasionally is feasible that the use of perpendicular
lines to the coast could bring satisfactory and equ itable results. With the help of the illustration
before us in graphic 4, representing the mariti me delimitation between Brazil and Uruguay, we can
appreciate that in these circumstances the perpendi cular leaves to each side around 50percent of
the extensive areas involved ⎯ which is in fact what a perpendicular should accomplish since by
definition it has an angle of 90° on each of its sides.
17. But as can be appreciated in graphic 5 on the screen, the coastlines of Nicaragua and
Honduras are in no way like the coast of Brazil and Uruguay. The only way a similar result could
be brought about is if the whole of the Honduran coast is rotated ⎯ as is now happening on the
screen [graphic1; graphic2] ⎯ in order that it also faces east as does the Nicaraguan coastline.
Since this imaginary rotation cannot come about, then the inequitable effects of a delimitation that
follows a parallel of latitude from the mouth of the Coco River ⎯ like the one proposed by
Honduras ⎯ can be seen in the illustration before us in graphic6. The distribution of maritime
spaces that the use of this method would produce can be appreciated by observing that the angle - 20 -
formed by this line to the south ⎯ that is, the portion of Nicaragua ⎯ would in effect be
approximately that of a 98° angle, but on the Honduran side it would be of 146°.
18. The geography of the area, including th e configuration of the coast, creates another
problem that must be taken into account in order to find an equitable solution for the delimitation
between the Parties. This problem is that the exact location of the land boundary that would serve
as the starting-point for the maritime delimitation has the configuration of two protruding needles
into the sea. This can be clearly appreciated in any of the satellite images of the mouth of the Coco
River filed in this case, for example graphic7 on the screen. The consequence of this special
configuration with the coastline is that the only two points that would dominate any delimitation
based on a median line or a line of equidistance would be the two margins of the mouth of the Coco
River. These few points, as can be seen in gr aphic8 before us, would exclusively dominate any
delimitation even at a distance of 200 nautical miles out to sea if only the mainland coasts were to
be used. And there are no other features outside the mainland that could in law have any bearing
on tracing a line of delimitation. There are certain cays in the area but even if these cays were all
bunched together, their added area would not reach th e size of certain other islets that have been
ignored by the Court in other maritime delimitations. For example, the Islet of Filfla was not taken
into consideration by the Court in the de limitation of the maritime spaces in the Malta/Libya case,
even though this islet is larger than all the cays presently in dispute put together. This point will be
amply addressed by Dr. Oude Elferink.
19. There is also one other important feature of the mouth of the Coco River that has a
bearing on the delimitation, especially of the territorial sea. This is that the delta of the Coco River
where the land boundary ends as it enters the s ea has been permanently increasing and projecting
the mouth of the river towards the sea in a north and east direction. Thus, as will be explained later
by ProfessorAlainPellet, and may be appreciated in the Memorial of Nicaragua (Chap.III,
Sect.B), a Mixed Nicaragua-Honduras Commission under the auspices of the Organization of
American States (OAS), on November 1962 fixed the point at the thalweg at the mouth of the Coco
River that would serve as the initial point of the land boundary. This point is presently located
more than a mile inland or up river and is no lo nger located at the mouth of the Coco River
(Chap. II, para. 30). - 21 -
20. So, after careful study of the geography and other physical realities of the area to be
delimited, and which we have briefly indicated above, Nicaragua came to the conclusion that a
bisector of the lines representing the coastal fronts of the two Parties, as presently indicated on the
screen in figure9, was the appropriate method of determining a line of delimitation that would
produce an equitable result by dividing equally the maritime spaces shared by both Parties outside
of the territorial sea. There might be other methods of arriving at an equitable result but Nicaragua
has found that the line resulting from the use of the bisector method to be quite simple and
straightforward. Any other method that could possi bly be used and that would effect an equitable
result would be quite similar to that resulting from the use of the bisector. The detailed description
of this method of delimitation will be explained amply by Mr. Brownlie.
21. In view of the problems raised by the unstable mouth of the Coco River, Nicaragua
proposed a method for the initial point of departure of the delimitation of the territorial sea that
would avoid starting from the thalweg at the mouth of the Coco River. This method involves the
selection of a fixed point located 3miles from the present day mouth of the Coco River. The
reasoning behind this position will be explained in detail by Professor Pellet.
22. Honduras, on the other hand, faced with th e inevitable results of a delimitation based on
geography and equity, decided to try to sidestep the issue of proposing a method of delimitation
that would effect an equitable result, by clai ming that there was already a traditional line of
delimitation in place that followed a parallel of latitude from the mainland out to sea. Thus,
Honduras maintains that since it has shown “there is an existing boundary at the 15th parallel, then
application of the principles of the law of the sea gives effect to that boundary and there can be no
question of those principles being employed to substitute a different boundary on the basis that it
might be more equitable” (RH, para. 1.08). The f act is that Honduras has fabricated a non-existent
“traditional” line in order to try to avoid the possibility that the Court might fix a line based on
equity. A simple look at any map or graphic lik e No.10 before us, would show a layman that a
line following such a parallel of latitude from the coast, the so-called “traditional” line by
Honduras, would result in giving the lion’s shar e of the maritime areas to Honduras as we can
again appreciate in graphic6 which we have shown before. At this point I will give some basic
historical background. - 22 -
Basic historical background
23. In this sense, the question I now propose to address is: when did this so-called traditional
line begin to develop? According to Honduras it dates from the colonial period. The problem with
this theory is that it flies in the face of history.
1492-1821
24. After the discovery and initial conquest of America, the Spanish territories were
governed by Viceroys. Initially there were only tw o viceroyalties: that of NewSpain with its
capital in Mexico City and that of Peru with its capital in Lima. These viceroyalties were divided
into smaller administrative and military units called Audiencias and Captaincies General. The area
of Central America, which comprised present da y Guatemala, Honduras, ElSalvador, Nicaragua
and CostaRica, and parts of present day Mexi co and Belize, was known as the Kingdom of
Guatemala and formed the Captaincy General of Guatemala. This Kingdom of Guatemala was
headed by a Captain General directly under the or ders of the Spanish Crown in Madrid and the
sub-divisions of the Captaincy Ge neral were under local governors also appointed by the Crown.
During the Spanish Colonial era, and up to the date of independence of Central America from
Spain on 15September1821, the political, administrativ e, military, judicial and religious division
of the territories was put in place by the Spanish Crown. At independence, it was decided that the
boundaries of the disintegrating territorial entities would be those in place at the moment of
independence. This decision taken on the questi on of boundaries at the time of independence is
now simply referred to in legal shorthand as the principle or doctrine of uti possidetis juris.
25. According to the eccentric claim of Honduras, the so-called “traditional” line of maritime
delimitation it claims has its roots in this period. The result of this pretension would be that in the
colonial era, the Spanish Crown would presuma bly have laid claims to extensive maritime
territories that included not only for that period an exaggerated claim to a 12-mile territorial sea but
also the even more incredible clai m to a continental shelf. And th at Spain not only laid claims to
these areas but also exercised jurisdiction over th ese maritime territories, a jurisdiction that,
according to the Honduran claim, carried over to the moment of independence. It is audacious of
Honduras to assert that Spain in 1820 claimed and exercised sovereignty over maritime areas that
have only been recently recognized by internationa l law, such as the exclusive economic zone and - 23 -
the continental shelf. As Professor Antonio Remi ro will demonstrate later on, during the Colonial
Era, the local authorities did not even have jurisd iction over the restricted area of territorial sea
recognized in that era. Jurisdiction over the territorial sea depended directly not from the local
governor of each of the provinces of Central America, not even from the Captain General in
Guatemala but directly from the authorities in Madrid.
The period after independence from 1821-1840
26. At the time of independence and after a short spell as part of the short-lived Mexican
Empire, the Central American provinces that ha d formed part of the Captaincy General of
Guatemala, entered in 1823 into a federation kn own as the Federal Republic of Central America or
the United Provinces of Central America. This Fede ration was short lived and it disintegrated in a
civil war between 1838 and 1840.
History of the dispute
27. Nicaragua had territorial disputes with Honduras dating from the mid-nineteenth century,
that is, shortly after the disintegration of the Fe deration of which both States had formed part.
These disputes did not involve maritime areas in th e Caribbean Sea but only the continental land
mass and a part of the waters of the Gulf of Fonseca.
28. After the break up of the Central American Federation, Nicaragua in fact was in effective
control and possession of the mainland further to the north than the present boundary at the river
Coco. This reality was recognized by Honduras 30 y ears after the disappearance of the Federation,
as is attested by two treaties that were signed by Nicaragua and Honduras respectively in 1869 and
1870. Although these treaties were not ratified they do serve to confirm a factual situation: that is,
that the only reality up to that time, as for exam ple as attested to by the 1869Treaty, was that
Nicaragua had been “in exclusive possession of this river (the Coco River) and the port of the same
name” and for this reason the boundary was settled by this treaty further north of that river.
(1869 Treaty indicated in MN, Chap. III, Sec. A, 1). The 1870 Treaty fixed an even more specific
boundary that ended at the Atla ntic Ocean exactly at parallel 15° 10' of north latitude ( ibid., MN,
Sect. A, 2). - 24 -
29. Since these treaties were not ratified th e dispute continued and some years later was
referred to arbitration by the King of Spain. The Award of the King of Spain in 1906 fixed the
boundary at the Coco River and decided that the sea port of that river was Nicaraguan, just as the
1869 Treaty cited above had specifically recognized. The Award stated that,
“The extreme common boundary point on 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 th e river that of its principal arm . . . and
retaining for Nicaragua . . . the bay and town of Cape Gracias a Dios . . .
Starting from the mouth of the Segovia or Coco, the frontier line will follow the
vaguada or thalweg of this river upstream without interruption...” (MN, Chap.III,
p. 24, para. 9).
30. Nicaragua contested the validity of the Award of the King of Spain and continued
occupying the territory over which it considered to have sovereignty which, as indicated above,
comprised areas located even furthe r to the north of the present day boundary located at the main
mouth of the Coco River.
31. To put an end to the dispute, the question of the validity of the Award of the King of
Spain was submitted to this Court. During the pleadings in that case, Nicaragua filed a map
indicating the areas under its effective control at th e time, that is, 1960. The pertinent portion of
this map is here reproduced as graphic 11 on the scr een and it can be clearly appreciated that up to
the Judgment of this Court Nica ragua was in effective control ⎯ and had been in control of those
areas since the time of independence ⎯ of areas located at the mouth of the River Cruta at
approximately 15° 15' N. It should be emphasized that these facts were not contested by Honduras
during the proceedings before this Court.
32. The exercise of sovereignty by Nicaragua, not only over the mainland, but also over the
maritime area in dispute including the cays, is atte sted to by the question of the turtle fisheries
negotiations and agreements with Great Britain that began in the nineteenth century and were still
ongoing in the 1960s. The history of this relations hip is amply explained and documented in the
Nicaraguan Reply (RN, paras.4.46-4.53). Dr.Oude Elferink will further develop this question.
For the moment, let me bring to the Court’s a ttention that whilst these negotiations were in
progress, the well-known authority of that period, the United Kingdom hydrographer,
CommanderKennedy, was consulted on the question: in his opinion the area involved in the - 25 -
negotiations with Nicaragua included the areas contai ned in a sketch he drew for the benefit of the
United Kingdom Foreign Office. This sketch on wh ich is highlighted the location of parallel 15 is
now before us on the screen as graphic 12. It is clearly evident from this sketch that the maritime
areas considered by CommanderKennedy to be involved in the negotiations with Nicaragua,
including the cays, correspond precisely with the areas presently in dispute and claimed by
Nicaragua: that is, the areas north of parallel 15. This Turtle Agreement with Great Britain and the
negotiations centred around it, simply confirm that Nicaragua had exercised sovereignty not only in
the mainland up to 15° 15' N, but also in the mar itime spaces in the vicinity including all the areas
presently in dispute.
33. Since the 1960 Judgment of this Court was limited to the declaration on the validity of
the 1906 Award of the King of Spain and no interpre tation of it was made by the Court, there still
remained at issue the question of the location of th e principal mouth of the Coco River that was to
be the boundary. In order to find a solution to th is question, Nicaragua requested the intervention
of the Organization of American States. Under the aegis of this Organization a Mixed Commission
was constituted with the purpose of “verify[ing] the starting-point of the natural boundary between
the two countries at the mouth of the Coco River... under the terms of the Arbitral Award of
December 23, 1906”.
34. This “starting-point” was determined by the Mixed Commission on 15December1962
and identified by the appropriate geographical co-ordinates. (See MN, Chap. III, Sect. B.)
35. It was only after this Commission made its determination that Honduras proceeded south
to occupy, for the first time in its history, the land border as defined by the Arbitral Award and
located at the thalweg of the mouth of the Coco River.
36. The 1906 Award of the King of Spain was limited to an indication that “the extreme
common boundary point on the coast of the Atlan tic will be the mouth of the River Coco” ( Award
of King of Spain quoted in MN, Chap. III, Sec. A, 9). The 1960 Judgment of the Court for its part
was limited to confirming the validity of the Awa rd and added no indication of its own on the
boundary; and the mandate given to the Mixe d Commission of the Organization of American
States in 1962 was limited to identifying the point of the boundary on the River Coco indicated in
the Arbitral Award. None of these decisions ha d any indication or reference to a maritime - 26 -
boundary or to any islands located in the maritime area. It should also be pointed out that the
treaties signed in the nineteenth century mentioned above also had no indication of any limits in the
sea or sovereignty over any islets in the area. Honduras never claimed during the pleadings before
the King of Spain that led to the Arbitral Award of 1906 or during the pleadings before this Court
that led to the Judgment in 1960 that there was a maritime line of delimitation in place or that it had
sovereignty over any islets or cays presently in dispute. This absence is quite significant because if
there had been such a traditional line in place, it would presumably have been an important element
that would have been taken into consideration by any arbitrator.
37. But in spite of the fact that the Award was limited only to determining the land boundary,
there was one reference in it, which had also been in the 1869 Treaty and that was to indicate that
the port of Cabo Gracias a Dios ⎯ the only maritime port in the area ⎯ appertained to Nicaragua.
38. Graphic 13 indicates the location of the port of Cabo Gracias a Dios at the mouth of the
Coco River. The adjudication of this port ⎯ the only port in the area ⎯ to Nicaragua is very
significant. Local fishermen from the mainland did not have the capacity in their small boats for
fishing beyond a few miles from the coast, and the cays in question were well over 20 miles distant
from the nearest mainland coast. The only commerce or interaction with areas further than a few
miles off the coast had to be through the Nicar aguan port on the mouth of the Coco River.
Foreigners who came to those waters had to repor t to this port and they came through the main
navigation channel in the area in dispute, which b asically coincides with the direction followed by
the line of delimitation proposed by Nicaragua. The location of the main navigation channel can be
appreciated in figure14 before us on the screen. The maritime commerce with the outside world
was through this port and this navigation channel. The only effective connection with the islets in
the area was with this port. Honduras for its part had no maritime port within 100miles of this
area. It was well into the twentieth century th at Port Lempira was established by Honduras. But
even this port is inside a lagoon and located n early 100km. from the pertinent area as we can
appreciate in graphic15 before us. If we add to this fact that the Honduran navy was only
established in 1976, it seems preposterous that Ho nduras could claim any traditional sovereignty,
possession or use of the maritime areas ⎯ including the islets. - 27 -
39. After 1963 and until the late 1970s, th ere were no further negotiations between the
Parties with relation to boundaries. It was not until the late 1970s that the question of a maritime
delimitation in the Caribbean first came up. Between November 1976 and March 1977 the Foreign
Minister of Nicaragua made a series of declara tions that were edited and published by the Foreign
Ministry in which it was announced that Nicara gua would begin conver sation with neighbouring
countries in order to delimit the maritime boundaries. The Foreign Minister explained that there
had been no previous negotiations because “[n]obod y had any interest in discussing a few meters
when the subject-matter was a territorial sea of 3 or 12 miles. However, with the development of
the Law of the Sea there are enormous interests linked to delimitation.” (See MN, Chap. IV,
Sect. D, 15.)
40. It was in this context that Nicaragua proposed to Honduras through a diplomatic Note
(NoteG-286) of 11May1977 to initiate conversati ons for the delimitation in the Atlantic zone
(see MN, Ann.4). Honduras responded to this with a diplomatic Note (Note No.1025) of
20 May 1977 accepting the “opening of negotiations”. The acceptance was without any reservation
or any indication that there was already a traditional line of delimitation (see MN, Ann. 5).
41. After this exchange of Notes, there we re no further negotiations until the 1990s because
the Government of Nicaragua was ousted in 1979. This change of government changed the attitude
of the Parties towards each other. Up to this point there had been no official position on either side
as to their respective maritime territorial claims. It was not until 21 March 1982, after Nicaraguan
coastguards captured four Honduran fishing vessels in the vicinity of the Nicaraguan cays of Bobel
and Media Luna located some 16miles to the north of parallel15 ⎯ as can be appreciated in
graphic 16 ⎯ that Honduras reacted and for the first time in a diplomatic Note on 23 March of that
year, officially identified parallel15 ˚ as a line “traditionally recognized by both countries” in the
Atlantic ocean (MH, Ann.8). This Honduran No te was answered by Nicaragua with a Note on
14April of that year in which it manifested its surprise “since Nicaragua has not recognized any
maritime frontier with Honduras in the Caribbean Sea” (MN, Ann. 9).
42. After this incident and exchange of No tes there have been countless occasions when
Nicaragua has reaffirmed that there is no maritime boundary in the Caribbean Sea that is based on - 28 -
tradition or on any tacit acceptance by Nicaragua ⎯ see generally on this question Chapter V of the
Memorial of Nicaragua.
43. At best ⎯ and there is not even an at best on this point ⎯ this would be a tradition that
began in 1963, a tradition younger than practically all of us present here! And it would be a
tradition that would have ceased developing when Nicaragua suggested negotiations on a maritime
boundary in 1977 and Honduras accepted to negotiate without conditions or any indication that a
tradition was in place and that there was nothing fu rther to negotiate. If this so-called tradition
started its gestation in 1963 it would have ended quite abruptly in 1977 before it reached the age of
consent!
44. During the 1990s there were several attempts to find a negotiated solution to the problem
of the delimitation of the Caribbean Sea. A description of these failed negotiations between the
Parties is provided in the Nicaraguan Memorial, in Chapter V (Sect. C).
45. Perhaps the best example of these failed negotiations are those that took place between
22January1996 and 31Januaryof that year, with the object of agreeing on a special régime “in
order to avoid the arrest of fishermen from either country” in the Caribbean. With this purpose, the
Ad Hoc Commission of the delegations of both pa rties recommended “the establishment of a
common fishing zone for fishing vessels of both coun tries”. The minutes of the two meetings held
can be read in Annexes 93 and 94 of the Nicara guan Memorial. No agreement was reached during
these meetings and they ended with both parties reiterating their original positions; that is,
Nicaragua maintained its claim to maritime areas up to the 17 ˚N parallel and Honduras up to the
15˚N parallel.
46. What finally provoked the end of any further attempts at finding a negotiated solution
was the ratification of a maritime delimitati on treaty Honduras had signed with Colombia on
2 August 1986. It was a treaty that met the most extreme aspirations of Honduras and Colombia in
relation to Nicaragua. In this treaty both countries attempted to boost their position by reciprocally
recognizing each others most radical claims vis-à- vis Nicaragua. This treaty had been signed by
Honduras with Colombia in a period of maximum political and military tension between Nicaragua
and Honduras. On 28 July 1986, a few days before this treaty was signed, Nicaragua had brought a - 29 -
case before this Court against Honduras for the armed activities against Nicaraguan territory, the
case concerning Border and Transborder Armed Actions.
47. The treaty with Colombia was ratified by Honduras on 2December1999. By it,
Colombia recognized and accepted the maximalist claim of Honduras to a line of delimitation with
Nicaragua running on a parallel close to 15° north latitude. Its ratification put an end to any
possibility of a negotiated solution to the dispute on the delimitation of the Caribbean Sea. The
only possibility left open for Nicaragua was to ha ve recourse to other means of peaceful settlement
of this intractable question. This Nicaragua did a few days after the treaty was ratified by
introducing an application before this C ourt that initiated the present proceedings on
8 December 1999.
The invariable position of Nicaragua
48. Honduras has attempted to portray Nicar agua’s impugnation of the Honduran claim to a
traditional line of delimitation following the para llel of latitude, as some form of new fangled
political reaction by the Government of Nicaragua that came into power in 1979. Thus, in its
Counter-Memorial, Honduras states that, “[t]he Sandinista Revolution that overthrew the
Government of Nicaragua on 19 July 1979 brought a radical change in Nicaraguan policy towards
Honduras and other Central American countries” (par a.3.25). In its Rejoinder Honduras further
claims that “Nicaragua’s acceptance of the traditional line until the Sandinista Government came to
power is consequently a relevant circumstance . . .” (RH, para. 2.46).
49. These repeated statements by Honduras are a blatant misrepresentation of the facts.
Honduras is perfectly aware that the Nicaraguan positi on that there is no line of delimitation in the
Caribbean Sea between Nicaragua and Hondur as has been the official position of all the
Nicaraguan governments that have been faced with the question of delimitation in the Caribbean
Sea.
50. The invariable position of Nicaragua before bringing this case to court was that there was
no maritime delimitation with Honduras. Nicaragua further claimed that any delimitation based on
equity would result in a delimitation line that would start from a point originating on the thalweg of
the mouth of the Coco River and then would run in a north-easterly direction until it reached the - 30 -
17th degree N parallel. This position of Nicaragua can be seen for example in the two Notes sent
by Nicaragua to Honduras on 12 December 1994 (MH, Notes Nos. 940507 and 940508 in Anns. 49
and 50) where, in response to Honduran protests for the capture of fishin g vessels in the area in
dispute, Nicaragua reminded the Honduran Minister for Foreign Affairs that Nicaragua “has always
extended its jurisdiction up to parallel 17 ˚ latitude north” (MN, p. 118). This same position was
reaffirmed in the negotiations held between the Pa rties in January1996 in the attempt, mentioned
before, of establishing a zone of tolerance for fi sherman of both countries in the Caribbean. This
maximalist claim, now not insisted upon by Nicara gua, implied, for example, that the important
fishing bank of Rosalinda located roughly between parallels 16 ˚ and 17 ˚ north would, on its
western side, appertain exclusively to Nicaragua and no part of it to Honduras.
51. When Nicaragua brought this case to court, it consulted international experts on several
technical fields and requested from them, not a ju stification of the traditional position or perhaps
maximalist ambition of Nicaragua but, on the contra ry, consistent with its position that there was
no line of delimitation in place, Nicaragua requested from the experts an indication of what
Nicaragua could reasonably claim as a delimitation line in the area. The result was the suggestion
of the bisector line that Nicaragua is requesting the Court to adjudge and declare as the equitable
delimitation line between the Parties.
52. Honduras, on the other hand, has not modifi ed the claim it first made to Nicaragua in
1982, alleging that there was a line of delimitati on in place that, starting from the point determined
by the Mixed Commission inDecember1962, ran in an easterly direction following a parallel of
latitude. This maximalist claim by Honduras, s hown on the screen as graphic17, has not varied
since it was first officially formulated to Nica ragua in 1982, presumably because any relaxation on
this point would set Honduras face to face with th e realities of geography that could lead to no
results resembling their most ambitious claim.
53. In view of the attempts by Honduras to characterize the dispute as something originating
in the conflicts of the 1980s in the Central American area, it is necessary to set the record straight.
The claims by Nicaragua in these proceedings reflect the invariable position of all the governments
of Nicaragua that have been faced with the prob lem of the maritime delimitation in the Caribbean
Sea. - 31 -
54. (A). From 1936 to 1979 the Somoza Government was in power in Nicaragua. The
relations between the Governments of Nica ragua and Honduras, especially from 1963 to 1979,
were very friendly (MN, p. 33). There is no communication between the Honduran Governments
of that period with the Nicaraguan Governments suggesting even by the most remote indication
that there was a line of delimitation in place in the maritime spaces in the Caribbean. If there is any
note or other official communication even hinting at this to the Nicaraguan Government during that
period, the Nicaraguan team has not seen it among the records in Nicaragua or among the
numerous documents filed, either regularly or in a sui generis fashion, by Honduras in these
proceedings. Iwould go even further, if there is any document that proves the contrary and that
Honduras by some mistake has not been able to produce so far, Nicaragua would not oppose the
presentation of such a document even at this late stage of the proceedings.
55. But the simple truth is that the only official reference during all that period of the
Somoza Government up to 1979 was the Nicaragua n diplomatic note dated 11May1977, sent to
the Foreign Minister of Honduras, indicating that the Government of Nicaragua “wishes to initiate
conversations leading to the determination of the definitive marine and sub- marine delimitation in
the Atlantic and Caribbean Sea zone” (MN, Ann. 4). This Nicaraguan Note could not possibly be
clearer or lend itself to misinterpretations: it clear ly asks to “initiate conversations”, not continue
or follow up on any pre-existing situation.
56. The Honduran reply was with a diplomatic Note from the Foreign Minister in which he
unambiguously states that Honduras “accepts with pl easure the opening of negotiations and in this
respect, instructions have been given to Hi s Excellency AmbassadorJimenezCastro for the
initiation of the preliminary stages of the conver sation as soon as he takes possession of his post”.
The Honduran official reply to the request from the Nicaraguan Government of that period prior to
1979 was an unequivocal acceptance of negotiations without the remotest indication of any
preconditions. The reply that speaks of “openi ng negotiations” and of the “initiation of the
preliminary stages of the conversations” cannot be construed to mean what Honduras now alleges,
that is, that there was nothing to negotiate becau se there was already a so-called “traditional” line
of delimitation. Where in this exchange of Notes ⎯ the only diplomatic correspondence filed in - 32 -
this case and dating from before the 1980s ⎯ are the Honduran claims of a traditional line and of
its alleged sovereignty over the cays presently in dispute?
57. (B). From 1979 to 1990 the Sandinista Government was in office in Nicaragua. During
this period the relations between the Govern ments of both Parties were very rocky and
confrontational. In any case, it was during this period that Honduras for the first time officially
claimed that there was a line of delimitation that followed a parallel of latitude eastwards from the
main mouth of the river Coco. As indicated above, this Note was se nt after the Nicaraguan
coastguard captured Honduran fishing boats in the area of some of the cays presently in dispute.
During the whole of this 1980s decade there were constant incidents both on land and at sea. Many
diplomatic Notes were sent to each other by the Pa rties. In all of them, Nicaragua maintained the
position that there was no line of delimitation in th e Caribbean and that any equitable line to be
established would reach parallel 17 of north latitude. The relations between the Parties at the time
can be appreciated in the App lication filed by Nicaragua against Honduras in this Court on
28July1986, and the Memorial on the merits it filed on 8December1989, all in the case
concerning Border and Transborder Armed Actions (Nicaragua v. Honduras).
58. (C). From 1990 to 1997 the Government of Mrs.Chamorro was in office in Nicaragua.
During this time the relations between the Parties were generally friendly. Nonetheless, there were
continuous confrontations in the maritime area in dispute. The diplomatic correspondence
generated by this dispute on the ground can be appreciated in the Memorial of Nicaragua
(e.g.,Anns.48-56, 62-66, 71-73 and 76-88). The problems were so acute that the Presidents of
Nicaragua and Honduras, meeting at the presidentia l inauguration of the latter in December 1995,
decided to set up the Ad hoc Committee referred to above with the purpose of studying the
possibility of establishing a zone of tolerance in the area in dispute for fisherman of both Parties.
The result of these meetings, as already indicated, was not an agreement but rather that both Parties
retreated to their original positions. Thus, this new Government of Nicaragua also maintained the
only real tradition on this issue: that there was no line of delimitation and that such a line had to be
negotiated.
59. (D). From 1997 to 2002 the Government of Dr.Aleman was in office. The relations
between the Parties were in appearance very frie ndly. Nonetheless, on the issue before the Court - 33 -
the position of Nicaragua suffered no variance: ther e was no line of delimitation in the Caribbean.
And also, during this Government incidents occurre d in the area in dispute as may be appreciated
in the diplomatic notes sent by Nicaragua to Honduras and reproduced in the Memorial of
Nicaragua (e.g., Anns.67-69). During this Govern ment the relations between the Parties reached
the critical point where it was decided to bring this case to the Court on 8 December 1999.
60. (E). From 2002 to 2007 another Government was in place in Nicaragua, that of
Mr.Bolaños. This Government also had frie ndly relations with Honduras but also clearly
maintained the consistent position of Nicara gua since the period of the Government of
Mr. Somoza.
61. (F). At present the Government of Mr. Ortega is now in office since last January and we
are here before the Court again maintaining th e traditional and invariable position of all the
Governments of Nicaragua since the question of delimitation in the Caribbean first became an issue
between the Parties.
Critical date
62. At this point, I will address some initial comments on the question of the critical date. In
its Rejoinder, Honduras claims that the critical date of 1977 selected by Nicaragua is of an
“arbitrary nature” (RH, para.1.17) and was asserted for the first time by Nicaragua in its Reply
(RH, para.1.15). Further, Honduras states that “ it is doubtful whether the concept of the critical
date is of much value in a case like the present wh ere the conduct of both States goes back a long
way and is based on a pattern of practice manifes ting a tacit agreement between the parties” (RH,
para. 1.15).
63. On the first assertion by Honduras ⎯ that is, that the critical date of 11May1977
selected by Nicaragua is arbitrary ⎯ it should be recalled that 1977 is the year in which it first
became apparent that it was necessary to negotiate a maritime delimitation. Before that time
neither Nicaragua nor Honduras had claimed the ex istence of a tacit or traditional line of
delimitation. In fact, even after Honduras r eceived the invitation to start negotiations on
11 May 1977 it did not point out that this delimitation already was in place. Quite the contrary, it
agreed to negotiate without any preconditions. If Honduras is not comfortable with calling this the - 34 -
critical date, then let us refer to it as the moment when any possible diplomatic uncertainty over the
question of maritime limits was ended.
64. Honduras also points out that Nicaragua only brought up the question of a “critical date”
in its Reply (RH, para. 1.15). It is true that Nicaragua did not use the phrase “critical date” in its
Memorial. But the existence of a critical date is normally of the essence in boundary disputes
whether it is referred to by that name or not . So, whether Nicaragua referred to 1977 as the
“critical date” or not in its Memorial is irrelevant. What is relevant is that it did clearly describe
what transpired in 1977; namely, that for the fi rst time the question of the maritime delimitation in
the Caribbean came out in the open with the offer by Nicaragua to start negotiations on that issue.
In Nicaragua’s view, the effect of the inte rchange of notes by the Parties in 1977 on the
commencement of negotiations without preconditions on the delimitation of the Caribbean Sea was
that it put the Parties on notice on this issue and any subsequent activity by either of them had to be
coloured by the fact of this notification. The best characterization for this effect is that of “critical
date” but the use of the name does not change the nature or the consequences of the act that gave
rise to it.
65. The reference to a critical date is not to ask the Court to exclude from consideration all
documents dating from after 1977, but simply to po int out to the Court that the activities these
documents might reflect were taken with the inte ntion of trying to improve the legal position of
Honduras. By referring to the year 1977 as the cr itical date, Nicaragua is not attempting to put
limits on the material that the Court may take into consideration. Quite the contrary, we welcome
the Court to go through all the material produced by Honduras in order to verify that most of the
so-called “evidence” filed by Honduras refers to very recent occurrences, some of it even dates
from after the filing of this case in 1999. With the exception of some oil exploration concessions
that were granted between 1963 and 1975, all th e other material filed as evidence by Honduras
refers to activities occurring for the first time after that date of 1977. All the other material that has
been presented by Honduras and dated before that period has no clear reference to any specifically
identifiable maritime area.
66. The Honduran Rejoinder has two long chapters devoted to Nicaraguan and Honduran
effectivités or sovereignty over islands. All this evidence will be analysed minutely by - 35 -
Dr. Oude Elferink later in these pleadings. For the moment let me point out that Chapter 5 of the
Honduran Rejoinder refers to s upposed Honduran activities in the area in dispute. All of the
activities that refer to the area in dispute, as an identifiable area, occur after 1977. I will address
some of these issues in a general way at the e nd of this presentation but they will be analysed
extensively by my colleagues Professor Remiro and Dr. Oude Elferink.
67. Finally, Honduras attempts to undermine the consequences of the critical date or, if it is
preferred, the consequences of the interchange of notes agreeing to start negotiations of the
maritime limits in the Caribbean. Honduras do es this by casting doubt on the importance of these
events in 1977 because, according to Honduras, “the conduct of both States go back a long way and
are based on a pattern of practice manifesting a tacit agreement between the parties”.
68. At this point, it must again be reiterated that any conduct that could be relevant to the
arguments of Honduras could only have occurred af ter 1963. This would be, to use the Honduran
phrase, the start of the “long way” that the conduct of the States could possibly go back to! Up to
the year 1963 there is no possibility that Hondur as could claim any conduct or tacit acceptance by
Nicaragua in any part of the area in dispute since Nicaragua had been physically and legally
controlling it at least since the break up of the Central American Federa tion in 1838-1840, more
than a century before. This occupation by Nicaragua of the areas in question up to 1963 is a matter
of public record. So if there are any actions by the Parties that could have any bearing on the
Honduran allegation of a tradition, it would have to refer to acts occurring after this date. And
when would the importance of any self-serving actions by the Parties cease? Naturally, when the
existing situation was first questioned and these acts lost any innocence they might have had. This
occurred when Nicaragua on 11May1977 sent the diplomatic Note to Honduras requesting the
start of negotiations. It is also useful to reca ll that this note was not sent during the “Sandinista
régime” as referred to by Honduras, but rather it was sent during the “Somoza régime” that had
very friendly relations with the “LopezArellano ré gime” in Honduras. If it were true that before
that date Honduras had been contemplating a clai m of a maritime delimitation running through the
15thparallel North, then this remained an id ea in their mind only and they never dared to
communicate it to the Nicaraguan Government of that time, that is, to the Somoza Régime. - 36 -
Islands
69. Honduras alleges in its Rejoinder (para. 10) that it was not until its Memorial that
Nicaragua “made for the first time a claim to na med islands north of the 15th parallel”. On the
general question of the subject of the dispute be fore the Court, the Rejoinder of Honduras alleges
that
“Nicaragua has not requested the Court to determine which State has
sovereignty over the islands, rocks and cay s immediately north of parallel 14°59.8'
and that prior to the filing of its Memori al, Nicaragua had not protested any activities
authorized by Honduras on these islands, rocks and cays.” (Para. 1.03.)
70. To begin with this last assertion of Honduras, it must be clear that there were no
activities of any consequence taken by Honduras in the area in dispute prior to the 1980s that
would have justified souring the friendly relations existing up to that moment. Prior to the 1980s,
there was no public knowledge of the use of any of these islets, rocks and cays by the Honduran
authorities or by private parties with Honduran authority. The Honduran navy only came into
existence in mid-1976 and there could hardly have been any patrols or acts of authority by
Honduras before that period. These islets, cays a nd rocks were not and are not fit for permanent
human habitation, even for persons willing or ha ving to live under the most extreme conditions.
The largest of these features is hardly equivalent to the area occupied by the Peace Palace. They
are at best 1m above water and are located in an area of a rainy hurricane season that lasts six
months out of every year. That is why the only certified and verified use of these cays before the
critical date was by the Cayman fisherman who used these cays as temporary housing for the turtles
they caught in the area. Of course, they were f it habitation for turtles and that is why the British
subjects used them as “crawls” or enclosed “pastures”, but they were hardly fit for human beings!
71. What is true is that the control of fisher ies was not very strict, particularly before the
critical date in the year 1977. Perhaps that is why the first documented conflict over fishing in the
area in dispute occurred only on 21March1982 when Nicaraguan coastguards captured four
Honduran fishing boats in the vicinities of the Nicaraguan cays of Bobel and Media Luna, cays that
according to Honduras, Nicaragua had never clai med before or protested Honduran activities
supposedly exercised on them. But this is typically putting the facts on their head. There is no
documented occurrence of Honduras capturing boats in the area in dispute before this date of 1982.
It was Nicaragua capturing Honduran boats, and that is why the protest came from Honduras who - 37 -
used the occasion to claim for the first time in all its historical relations with Nicaragua that
parallel 15 was a line “traditionally recognized by bo th countries” as a delimitation in the Atlantic.
Nicaragua, as usual, reacted immediately to this Honduran protest by denying the existence of any
line of delimitation with Honduras.
72. At least two relevant conclusions ma y be drawn from this initial episode of open
hostilities on the question of a line of delimitation.
73. (A). Nicaragua did not wait until the presen tation of its Memorial to claim sovereignty
over these cays, as Honduras alleges in its Rejoinder (para.1.10). This incident involving two of
the most important features in question proves th at Nicaragua claimed and exercised sovereignty
over these islands and cays long before this case came to Court. Furthermore, there is no evidence
at all that prior to this incident Honduras had cl aimed or exercised sovereignty over these features.
I ask the Court to review the evidence and no mention of any capture by Honduran patrols of
Nicaraguan boats fishing in that area occurred befo re that incident of 1982. Why were there no
captures? Was it because the Nicaraguan fisher men up to the 1980s were so obedient of these
alleged Honduran regulations that were not even in the public domain at that period in question?
This would certainly be quite amazing especially since there was no Honduran navy before 1976 to
enforce this compliance! Besides, the Nicaraguan Government had quite openly published in 1971
a geographical index of Nicaragua that Nicaragua n fisherman would not have ignored and that
listed all the islets and cays in dispute and in particular Bobel and Media Luna as being under the
sovereignty of Nicaragua (MN, Chap. IV, para. 12).
74. (B). The Honduran protest note after the incident in 1982 claimed that “two coastguard
launches of the Sandinista Navy penetrated as far as Bobel and Media Luna Cay, 16miles to the
North of parallel15. This has been traditionally recognized by both countries to be the dividing
line in the Atlantic.” Honduras, therefore, at th at late stage was not claiming sovereignty over the
cays and islets based on purported acts of sovereignty exercised independently of their location, but
only that these areas were located north of the 15t h parallel, and presumably, by implication, they
were under Honduran sovereignty. At this point in time Honduras did not invoke any direct acts of
sovereignty over these uninhabited and uninhabitable features, that is, that it had sovereignty over - 38 -
the islands and cays involved in the incident indepe ndently of their location on the alleged line of
delimitation, but only that they were located north of the 15th parallel.
75. The Rejoinder of Honduras (para.2.17) calls the Nicaraguan claim to sovereignty over
the islands “ambiguous and equivocal”. Even granting this were so, which is not the case, then this
alleged ambiguity and equivocation has not cau sed any misunderstandings or inconvenience to
Honduras, since it has devoted the greater part of its arguments and pleadings to this point!
76. The other question raised by Honduras in its Rejoinder and quoted before is that
“Nicaragua has not requested the Court to determ ine which State has sovereignty of the islands,
rocks and cays . . .” (RH, para. 1.03.) As we shall see, this is simply not true.
77. Nicaragua’s position on the question of the cays and rocks located in or around the area
in dispute is that these features have never been susceptible of effective occupation by any
sovereign. As indicated before, these minor incidents located barely above water in an area of very
heavy seas and rains and yearly hurricane threats ha ve never been the object of permanent use by
anybody. That is why Nicaragua considered that by using a bisector as a method of delimitation,
sovereignty over these features could be attribut ed to either Party depending on the position of the
feature involved with respect to the bisector line. It was clearly pointed out in the Memorial of
Nicaragua (Chap.IX, para.42) that, with the bi sector line proposed by Nicaragua, the result was
that “all islets and rocks under the sovereignty of Nicaragua are situated to the south of this line and
those under the sovereignty of Honduras to the nor th of the line”. Furthermore, as a subsidiary
point Nicaragua indicated in its Memorial (p. 166) that “in the absence of the adoption of a bisector
delimitation by the Court, Nicaragua reserves the so vereign rights appurtenant to all the islets and
rocks claimed by Nicaragua in the disputed area”, and went on to name ⎯ in the Memorial ⎯ each
one of these islets and cays.
78. So the question is: what are the Parties requesting the Court to decide on the issue of
sovereignty over the islands, cays and rocks located in the area in dispute? The short answer is that
the position of Nicaragua is as follows:
79. (A). Nicaragua indicated in its Memorial that all the islands, cays and rocks located in the
area in dispute, that is, north of parallel15 a nd south of the bisector proposed by Nicaragua or
south of any other equitable line decided by the Court, appertain to Nicaragua. - 39 -
80. (B). Nicaragua further indicated that in the event that the Court determines that the
method of delimitation to be used cannot decide th e issue of sovereignty over these features then
Nicaragua claims that the factual evidence points to Nicaraguan sovereignty over them.
81. On the other hand, the position of Honduras parallels that of Nicaragua and would seem
to be:
82. (A). That all islands, cays and rocks lo cated north of the 15thparallel appertain to
Honduras.
83. (B). That in the event that the Court d ecides that the sovereignty over these features has
to be decided on their own merits and not on thei r location, then Honduras claims that the factual
evidence points to its sovereignty.
84. At this point of the Agent’s presentation, it is not the appropriate moment to analyse
in extenso the bases of sovereignty alleged by both Pa rties over these cays. This question will be
addressed later in our presentation by ProfessorRemiro and Dr.Oude Elferink. Their extensive
analysis of this question might present some ove rlap but this is inevitable because Honduras in
general does not specify whether an argument it us es concerns the maritime delimitation or the
cays or both.
Madam President, I have about 20 minutes more to go. I do not know if you wish me to stop
at this moment, or . . ?
The PRESIDENT: Yes, we are clearly going to have to sit late today because you have lost
time at the beginning of your presentation. It w ill be perhaps convenient for the Court to take a
short break now and we’ll resume very shortly. Thank you.
Mr. ARGÜELLO: Thank you.
The Court adjourned from 11.35 to 11.50 a.m.
The PRESIDENT: Please be seated. You have the floor, Your Excellency.
Mr. ARGÜELLO: Thank you, Madam President. - 40 -
The question of evidence
85. The claim by Honduras of the existence of a traditional line of delimitation that was in
place since time immemorial cannot be seriously opposed to the Nicaraguan request for the
determination of a line of delimitation of maritime spaces whose existence was not even dreamt of
before the mid-twentieth century.
86. The Nicaraguan request is not for a delimitation of a 3-mile or at best a 6-mile territorial
sea, that were the only maritime areas considered susceptible to State sovereignty in the nineteenth
century at the time of independence, but rather it is a request for the delimitation of the extensive
maritime areas that were beginning to be discussed in the mid-twentieth century and were finally
admitted by international law with the entry into force of the United Nations Convention on the
Law of the Sea.
87. As ProfessorRemiro will point out, the concept of uti possidetis that was used to
determine the boundaries of the administrative divisions of the colonial Power that were considered
to be frozen in place at the moment of independence had nothing to do with maritime matters. The
concept of uti possidetis did not even apply within the 3- or some say 6-mile limit in colonial
Spanish America up to the date of independence, because these areas were not under the control of
the local authorities but directly under the control of the Royal Navy in Madrid and its
representatives in other parts of the Caribbean, ev en at one point, as ProfessorRemiro will point
out, as distant as the island of Cuba.
88. Apart from these observations that are based on elementary legal and historical
considerations, it is an indisputable fact that up until the Judgment of this Court in 1960 confirming
the validity of the Arbitral Awa rd of the King of Spain of 1906, and even until the end of 1962,
when the Commission of the Organization of Amer ican States finally determined the main mouth
of the Rio Coco whose thalweg would fix the continental limits of the Parties, Nicaragua continued
effectively to control areas located substantially to the north of the present border.
89. Furthermore, that up until that same period Nicaragua had been dealing with
Great Britain in relation to turtle fisheries in the area in dispute that included the use of the islands,
cays and rocks in that area ⎯ a use, it should be emphasized, consistent with the nature of these - 41 -
features since it involved not the use for human habitation but for pens where the captured turtles
could crawl about until they were shipped to their final destination, usually in Cayman.
90. There is not the least shred of evidence that Honduras exercised any authority over these
islands during all this period or even up to the early 1980s. Chapter 5 of the Honduran Rejoinder
has an extensive list of alleged exercise of s overeignty by Honduras over the area in dispute,
including the islands and cays. All of these points will be addressed in extenso by my colleagues
ProfessorRemiro and Dr.Oude Elferink. At presen t, only a bird’s eye view of this so-called
“evidence” and some short comments on the most salient of them.
(i) Fisheries: Practically all of the highly selected testimony by fishermen filed by Honduras
refers to situations dating from after 1977. On the other hand, none of the evidence
referring to situations before 1977 is clearly centred on the area in dispute. If the Court
peruses these transcripts it will find that th ese testimonies would be equally valid for any
delimitation with Guatemala and Belize, far to the north of the area in dispute. The same
applies to any fishing regulations before th e 1980s. There is no area identified that could
even vaguely be considered as referring to the area in dispute.
(ii) Honduran administration and legislation, application and enforcement of Honduran civil
and criminal laws, regulation of immigration and public works and scientific surveys, all
cited in the Honduran written pleadings, are a ll related to facts occurring after the 1980s
and some even after this case came before th e Court. Any references prior to that period
are vague and could refer to any area in the Caribbean under Honduran sovereignty.
(iii) The first Honduran Constitution to include some of the islands and cays in dispute dates
from 1982.
(iv) The Honduran military and naval patrols could not possibly have antedated the creation of
the Honduran navy in 1976.
(v) The only evidence filed by Honduras that has some reference to the area in dispute is to
certain oil concessions that were granted by Honduras between 1963 and 1975. - 42 -
Oil concessions
91. To begin with, it is abundantly clear that the granting of oil concessions by a State is not
a method of acquiring sovereignty over territory. The distinguished Tribunal in the Eritrea/Yemen
Arbitration considered that offshore oil concessions had no implications on the sovereignty of the
territories involved. Thus, it indicated that,
“Ethiopia in the 1970s entered into a number of offshore concession
agreements... in the view of the Tr ibunal these agreements simply reflect
technological and commercial realities and carry no implication for the rights of the
parties at issue in these proceedings.” (Eritrea/Yemen (Phase I) Award, ILR, Vol. 114,
p. 1, para. 423.)
92. It is clear that Honduras cannot establish sovereignty or sovereign rights over areas based
on the granting of concessions. But since the question of the oil concessions are the only
documented activities of Honduras that might have so me relation to the area in dispute before the
critical date, I have selected this issue for some preliminary comments but anticipate that this point
will be analysed minutely by Professor Remiro in a later presentation.
93. (A). Honduras attempts to blow up in tim e and in space the concessions granted in the
area in dispute. Thus in the Counter-Memorial of Honduras (para.6.26), it claims that the first
concession was granted in 1955 and the last one in 1983. The concession granted in 1955 did not
refer to the area in dispute. It was a gene ral concession over the territory of the Mosquitia,
including territorial seas. In fact, it applie d to a very large and undefined area. The 1983
concession was granted in an area located to the nor th of the area in dispute. The only concessions
granted in the area in dispute occurred between 1963 and 1975 and were granted to two companies:
Pure Oil Company Honduras Inc. (later Union Oil Company), and Lloyd Honduras Inc. (CMH,
Anns. 192, 194).
94 (B). The concessions granted by Nicaragua in the same period and located near the area in
dispute expressly stated that the closing boundary to the north of such concessions was left
undetermined because there was no line of delimitation with Honduras ⎯ thus, for example, the oil
concession granted to the Pure Oil Company of Ce ntral America in September 1968 (RN, Vol. II,
Ann.14) and the oil concession granted to the Union Oil Company of Central America in
June 1972 (RN, Vol. II, Ann. 15). The Honduran concessions, on the other hand, had no indication - 43 -
that their southern limit coincided with the mariti me limit with Nicaragua; they simply indicated
the geographical co-ordinates without any reference to boundaries.
95. (C). The Honduran concessions in the area in dispute had no reference to the islands in
the area. No exploratory activities relating to th e oil concessions were expressly authorized on
these islands and, to the knowledge of Nicaragua, n one took place. This lack of mention of the
islands in the area is the more telling if we c onsider that other concessions by Honduras further
north, outside the area in dispute, specifically ment ioned the islands in the area. For example, in
the box of documents that were introduced by Honduras at the moment of filing its
Counter-Memorial on 21March2002, we find th e document identified with the number6-10
which was not translated by Honduras but is part of the record it filed in the Court. This document
refers to oil concessions granted by Honduras to Honduran corporations that indicate the area of the
grant with specific mention of the islands and cays in that area: graphic 18 on the screen shows the
location of two of these concessions. The translati on of the description of the area granted in these
concessions is as follows ⎯ and I will make this short translation because, as I have indicated,
these documents were not translated by Honduras:
“The oil exploration granted to Compañia Petrolera Hondureña
In Vivorillos No. 1 zone, located in the Cayitos zone, in front of the Caratasca
Lagoon sandbank, La Mosquitia, Gracias a Dios District, and it will have the
following limits: to the north, the sea, Becerro s Cays and reefs, to the south, the sea,
to the east, Vivorillos cays and reefs and to the west, Vivorillos zone No. 2.
Oil exploration zone granted to Compañia Petrolera Hondureña
In Caratasca No. 1 located in the Cayitos zone, in front of the Caratasca Lagoon
sandbank, La Mosquitia, Gracias a Dios Distri ct, and it will have the following limits:
to the north, Cajones Cays or Hobbies and reefs, to the east, Caratasca Cays and reefs,
to the south, Becerro Zone No. 1, and to the west, Carratasca Zone No. 2. (Document
filed by Honduras as additional Annexes to the Counter-Memorial, No. 6-10.)
96. During the period in question, that is at least up to the 1980s, neither Nicaraguan
legislation nor Honduran legislation prescribed that a public offer of specific and determined areas
for oil concessions should be made. No grid was published on any map indicating which areas
could be offered to the public. Therefore there are no maps ⎯ and Honduras cannot produce any
before that period ⎯ in which the Honduran authorities made a general offer to the public of
concessions in any specific areas and much less that had as limit the 15th parallel to the south. - 44 -
Article4 of the Nicaraguan Law on the Expl oration and Exploitation of Petroleum of
3December1958 (RN, Ann,13 (b), Decree No. 372) divided in very general terms the national
territory into
“four large zones, to wit:
(a) Pacific zone, including the department s of Chinandega, León, Managua, Masaya,
Carazo, Granada and Rivas, including lakes Managua and Nicaragua;
(b)central zone, including the departments of Nueva Segovia, Madriz, Estelí,
Jinotega, Matagalpa, Boaco and Chontales;
(c) Atlantic zone, including the rest of the national territory on mainland; and,
(d) zones of the Continental Shelf on both oceans.”
97. The law did not provide any more detailed description or geographical co-ordinates of
the areas that could be offered. The only spa tial limitation imposed on the concession by this
legislation referred to the size of the area that could be offered. Thus in the Atlantic Ocean it could
not exceed 400,000 hectares (Art. 9).
98. Based on this law, Nicaragua granted c oncessions wherever the oil companies requested
them. There were no specially identified blocks on offer. The whole Atlantic areas appertaining to
Nicaragua were on offer without any indication of what were the limits of these Atlantic areas.
When the northern border of the Nicaraguan concess ions was located near the area of any possible
maritime boundary with Honduras, then the decree issued by the Nicaraguan authorities indicated
expressly in the concession grant that this northern limit was left open, that is, no geographical
co-ordinates were indicated for the northern lim it of the concession because, as each decree would
expressly state, there was no delimitation with Honduras.
99. Honduras makes much of the lack of Nicaraguan protest in view of the concessions it
granted between 1963 and 1975 in the area in dis pute. The inference of acquiescence that
Honduras tries to elicit from this lack of formal pr otest by Nicaragua during this period should be
dismissed in the same way that the Court dism issed the Canadian argument against the United
States of America in the Gulf of Maine case on a similar issue. T hus Canada argued that it had
issued regulations and concessions in the area in dispute without eliciting any protests from the
United States of America. The Chamber’s opi nion was that the period from 1965 to 1972, which - 45 -
according to Canada was “at least” the period in which the conduct took place, was “too brief to
have produced a legal effect of this kind, even supposing that the facts are as claimed”
(Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/UnitedStates of
America), Judgment, I.C.J. Reports 1984, p. 246, para. 151).
Further points on Nicaragua’s submissions
Starting-point of the maritime delimitation
100. In Nicaragua’s written pleadings it did not request any pronouncement by the Court on
the question of the location of the endpoint of the land boundary and hence of the starting-point of
the maritime delimitation. The reason for this w as that if a point was fixed at the mouth of the
Coco River as the starting-point of the maritime delimitation, and the river mouth continued to
change position as has happened in the past, then this fluctuating starting-point would be the source
of uncertainty and possible disputes in the future. Therefore, in its Memorial (Chap. VII, para. 29)
Nicaragua indicated that it considered more appropr iate that the situation of the short strip of
boundary located between the point determined in November 1962 by the Mixed Commission, and
the 3-mile outer limit it proposed as a starting-point should be left to the determination of the
Parties.
101. In its written pleadings, Honduras has come up with an extrao rdinary claim for the
location of the starting-point for the delimitation and the direction or route it should follow out to
sea. In plate 20 of its Counter-Memorial, now be fore us in graphic19, we can appreciate this
claim. According to this Honduran position, the f act that the mouth of the river Coco has moved
some distance east and north from the point determined by the Mixed Commission in 1962 does
not change the fact that that 1962 point is the starting-point for the maritime delimitation. And
thus, with Olympic disdain of reality, Honduras o ffers a line that cuts through the mainland of
Nicaragua to connect to a point located on the ma inland coast of Nicaragua from which point the
maritime delimitation would commence. It is tr ue that, in its Reply, Honduras indicates that it
would accept the starting-point suggested by Nicar agua located 3miles from the mainland coast,
but this in no way represents a change of position as to the star ting-point of the delimitation being
located on the ⎯ according to Honduras ⎯ invariable point determined by the Mixed Commission - 46 -
in 1962. From Nicaragua’s point of view, the task of the Commission in 1962 was to determine the
position of the thalweg of the main mouth of the Coco River as it was at that moment in time and
not to fix it for all time . Its object was not to change the Arbitral Award of the King of Spain that
clearly fixed the thalweg as the starting-point an d not any specific geographical co-ordinates.
These co-ordinates were indicated by the Commission in order to identify the location of the
thalweg at that point in time.
102. The bizarre position of Honduras on the qu estion of the endpoint of the land boundary
and starting-point of the maritime delimitation w as not known by Nicaragua before Honduras filed
its Counter-Memorial. Since the Honduran reply does not alter this position, Nicaragua has come
to the conclusion that, if the determination of the first segment of delimitation from the endpoint of
the land boundary to the 3-mile suggested starting- point out at sea is left to negotiations between
the Parties, these negotiations may become a point of friction and irresoluble conflicts. Therefore,
as from this point Nicaragua wishes to anticipate th at in its final submissions it will add a request
that the Court confirm and declare that the starti ng-point of any delimitation as determined by the
Award of the King of Spain is the thalweg of the main mouth of the river Coco such as it may be at
any given moment. This is what the Arbitral Award decided in 1906 and it has come as a surprise
to Nicaragua that this Award, accepted by both Part ies and so particularly cherished by Honduras,
is now being attempted to be set aside.
Islets, cays and rocks
103. In view of the allegations made by H onduras on the question of sovereignty over these
features, Nicaragua considers that it should empha size that its request fo r a line of delimitation
based on the bisector also entails a decision on th e question of sovereignty over these features in
the area in dispute. Therefore, so that there is no possible misunderstanding on this point ⎯ that is,
whether the issue of sovereignty over these features is in question ⎯ then as of this moment
Nicaragua wishes to anticipate that in its final subm issions at the end of these oral pleadings it will
specifically request a decision on the question of sovereignty over these features. This more
explicit request that will be made in the final submissions will not change the main position of - 47 -
Nicaragua that the location of the islands and cays north or south of the line of delimitation decided
by the Court should also decide the question of sovereignty.
104. Madam President, Members of the Court, the subsequent presentation of the Nicaraguan
oral pleadings will be as follows:
105. Dr. Alex Oude Elferink will provide the geographical framework of the dispute.
106. Mr.Ian Brownlie will address the question of the appropriate method for effecting an
equitable delimitation of the areas in dispute a nd, in doing so, will explain why the bisector line
requested by Nicaragua achieves an equitable result.
107. Professor Antonio Remiro Brotóns will next rebut the Honduran argument based on the
uti possedetis juris.
108. Dr.Alex Oude Elferink will again then address the issue of the cays in the area of
overlapping claims.
109. Dr.Antonio Remiro Brotóns will rebut the Honduran argument based on the alleged
tacit agreement or the acquiescence by Nicaragua to the so-called traditional line of delimitation.
110. Professor Alain Pellet will address the point of departure and terminus of the maritime
boundary ⎯ the territorial sea.
111. And finally, Mr.Ian Brownlie will end the Nicaraguan first round of pleadings by
explaining the equitable character of the Nicaraguan claim compared with the inequitable character
of the Honduran claim.
112. Madam President, Members of the Court, with this I end my presentation and I would
respectfully request, Madam President, if my colleague, Dr. Alex Oude Elferink, could be called to
the podium. Thank you for your attention.
The PRESIDENT: Thank you, Your Excellenc y. I now call Dr.OudeElferink to address
the Court. - 48 -
EMLr.ERINK:
The geographical framework of the dispute
1. Thank you, Madam President. Madam Pres ident, Members of the Court, it is a great
honour for me to appear before you on behalf of the Government of Nicaragua today.
Introduction
2. I will be addressing the geography relevant to the delimitation between Nicaragua and
Honduras. Geography is no doubt the major factor in any maritime delimitation.
The PRESIDENT: Dr.Elferink, could you lift your microphones a little? That’s splendid.
That will help us. Thank you.
Mr. ELFERINK: Geography is no doubt the majo r factor in any maritime delimitation. In
the present case, the Parties have thus far pr esented widely diverging views on the relevant
geography and this matter deserves careful consideration. The first part of my presentation is
concerned with the regional geographical setting of the dispute. Next, I will turn my attention to
the mainland coasts of the Parties and the islands located in the area to be delimited. The
geography of the mainland coasts and the islands in front of those coasts will be set out, which will
be followed by a discussion of the significance the Parties have attached to that geography. The
final part of my presentation concerns the argument of Honduras that the maritime delimitation
practice of Honduras and third States is relevant for the delimitation of the maritime boundary
between itself and Nicaragua. During my presentation I will show a number of figures on screen.
These are also included in the judges’ folders. The figures are all numbered AE1, followed by a
unique number to which I will refer during my presentation.
The regional geography
3. Madam President, what does the relevant geography look like? As can be seen on
figure1, Nicaragua and Honduras are situated in th e south-western part of the Caribbean Sea.
Their mainland coasts face in sharply diverging di rections. The mainland coast of Nicaragua runs
approximately in a north/south direction. The mainland coast of Honduras runs approximately in - 49 -
an east/west direction. To the south, the ne ighbouring States of Nicaragua are Costa Rica and
Panama and to the east it faces the opposite main land coast of Colombia. To the north-west of
Honduras are Guatemala, Belize and Mexico and to the north Honduras faces Cuba and the
Cayman Islands. Finally, Jamaica is situated to the north-east of Nicaragua and Honduras. The
south-western tip of the island of Jamaica is about 340 nautical miles distant from the mouth of the
Rio Coco where the land boundary between Nica ragua and Honduras terminates on the Caribbean
coast.
4. The mainland coasts of Nicaragua and H onduras abut on the Nicaraguan Rise as is shown
on figure2. The Nicaraguan Rise is one of the submerged ridges and rises that divide the main
basins of the Caribbean Sea. The Nicaraguan Rise is a wide triangular ridge that extends from the
continental landmass of Nicaragua and Honduras, via the island of Jamaica, to the island of
Hispaniola on which the Dominican Republic a nd Haiti lie. The Nicaraguan Rise separates the
Cayman Basin from the Colombian Basin.
5. The Nicaraguan Rise is also easily recognized on figure3, which indicates water depth
contours. The water depth over a large part of the Nicaraguan Rise is 200m or less. After the
200m isobath water depth drops rapidly to 1,000m and more. A number of banks can be
distinguished on the Nicaraguan Rise. The most southern of these is Miskito Bank. To the
north-east of the mainland coasts of Nicaragua and Honduras, at a distance of some
60nauticalmiles from the terminus of their land boundary in the RioCoco is Gorda Bank. At
about three times that distance lies Rosalind Bank. Rosalind Bank is at a distance of about
170nauticalmiles from the mouth of the RioCoco and lies approximately midway between
Jamaica and the coast of Nicaragua and Honduras.
6. Madam President, why specifically note th at location of Rosalind Bank in relation to
Nicaragua, Honduras and Jamaica? It is of course not Nicaragua’s intention to invite the Court to
pronounce itself in any way on the maritime delimita tion of Jamaica. However, what is relevant
for the present proceedings is that Nicaragua and Honduras both are neighbouring States of
Jamaica that have an opposite coastal relationship with Jamaica as can be ascertained from figure 4.
Their maritime zones meet and overlap with those of Jamaica in the area of Rosalind Bank. This
geographical relationship of Nicaragua and Hond uras to Jamaica provides a telling illustration of - 50 -
the inequity of the parallel of 14° 59' 48" N proposed by Honduras as its maritime boundary with
Nicaragua. That line would exclude a maritime boundary between Jamaica in the area of Rosalind
Bank, or for that matter anywhere else. Th e maritime boundary between Nicaragua and Honduras
proposed by Honduras is more than 100 nautical miles to the south-west of Rosalind Bank.
The cays in the area to be delimited
7. On the banks in front of the mainland coasts of Nicaragua and Honduras there is a
considerable number of reef areas. On most of those reefs there are small islands. These are
generally referred to as cays or, in Spanish, cayos. Cays consist mostly of sand or coral. They are
formed when the action of waves and wind deposits sand and coral debris onto reef flats. Weather
conditions affect the formation of cays. The dir ection of winds and tidal currents influences the
amount of sand and coral that is deposited and where it will be deposited. Cays in general will only
be a couple of feet above water. Hurricanes can easily disperse this material, which may lead to
changes in the shape and size of cays or even their disappearance. Th e hurricane season in the
south-western part of the Caribbean Sea lasts from June to November.
8. The most extensive group of cays off the mainland coast of Nicaragua extends northwards
from Punta Gorda. This is indicated on figure 5. Punta Gorda is some 75 km south of the mouth of
the Rio Coco. Due east of Punta Gorda are the Morrison Denis Cays and the Miskito Cays. The
main cay of this latter group is also called Miskito. Miskito Cay is by far the largest island in the
2
area. It measures approximately 21.6km . Almost all other cays in the area measure much less
than 1km 2. North of Martinez Reef and the Edinburgh Channel is EdinburghReef on which
Edinburgh Cay is located. To the north of Edinburgh Cay are Media Luna Reef, Savanna Reef and
Alargardo Reef. There are a number of cays on these reefs, including Media Luna Cay, Bobel Cay,
Savanna Cay, Port Royal Cay and Alargardo Cay ⎯ also referred to as South Cay. These cays are
indicated in figure 6. According to Honduras, these cays to the north of Edinburgh Cay fall under
the sovereignty of Honduras, because they are located to the north of the alleged traditional
boundary of 14°59'48"N that is claimed by H onduras. Nicaragua reject s this claim because it
already had a title to these cays long before Honduras st arted to claim them. That issue of title to
the cays will be addressed later this week. As fa r as the geography is concerned, it can be noted - 51 -
that these cays are closer to Edinburgh Cay of Nicaragua than any territory of Honduras to the west
or north of them. This is explained by presence of the Main Cape Channel to the north-west of
Media Luna Reef.
9. A description of the Main Cape Channel can be found in the East Coast of
Central America and Gulf of Mexico Pilot published by the United Kingdom Hydrographer of the
navy, which can be found at Annex231 of the Counter-Memorial. The Pilot observes that the
Main Cape Channel is one of the main channe ls crossing the Miskito Bank. The Main Cape
Channel leads from the vicinity of Cape GraciasaDios ⎯ and the RioCoco ⎯ to deep water
north-north-east. The fairway in the channel is at least 5miles wide. The boundary along the
parallel proposed by Honduras would place the Main Cape Channel wholly in the territorial sea of
Honduras. The bisector proposed by Nicaragua gi ves the Parties joint control over this access to
the Rio Coco.
10. To the north of the Main Cape Channel there are further reef areas and cays as is shown
on figure 7. Those reefs and cays are a larger distance from the mainland coast and further apart.
They include the False Cape Banks, Cinco Palo s Cays, the Cayos Cajones or Hobbies, Cayo
Caratasca and Gorda Cay, which is located on the northern extremity of Gorda Bank.
11. In the Reply, Nicaragua argued that the conti guity of all of the islands to the south of the
Main Cape Channel was a relevant consideration to determine the title to the cays that are in
dispute. As will be set out by ProfessorRemi roBrotóns this Wednesday, it is impossible to
establish the situation of the uti possidetis juris of 1821 in respect of the cays in dispute. As a
consequence, contiguity is a rele vant consideration to establish the title to the cays at that date.
Figure 8 on the screen, which is based on figure VIII annexed to the Reply shows the territorial sea
of Nicaragua and Honduras in 1821, the date of relevance for the uti possidetis juris, as is discussed
in the Reply (RN, pp.127-128, paras.6.90-6.92). A 6-nautical-mile territorial sea from the
Nicaraguan mainland coast and Miskito Cay forms an almost uninterrupted chain up to the Main
Cape Channel. That chain includes the cays that are now in dispute between the Parties. It should
moreover not be excluded that there may have been times during which all cays south of the Main
Cape Channel lay in one belt of territorial sea. As I will set out later in my presentation, the
surveys on which the charts of this area are based stem mostly from the period 1830-1843 and are - 52 -
incomplete. In the area south to the Main Cape Channel there are reef areas on which more cays or
low-tide elevations may have been present. This especially concerns the reef area on which Cock
Rocks are located. As a matter of fact, the publication Índice Geográfico de Nicaragua from 1971,
published by the Nicaraguan Ministry of Public Wo rks, observes that there is a cay called Cock
Rock (reproduced in RN, Ann. 31). A territorial s ea around that cay results in a belt of territorial
sea of 6nautical miles from the Nicaraguan mainland coast and MiskitoCay all the way north to
the southern edge of the Main Cape Channel. On the other hand, the cays to the north of the Main
Cape Channel have always been separated from the cays to the south by the deeper waters of the
Channel.
12. This contiguity of the cays to the south of the Main Cape Channel is not some recent
invention. It was also observed by CommanderKennedy of the United Kingdom Hydrographic
Office in the 1950s. CommanderKennedy, on more than one occasion, commented on the
geography relevant to the present proceedings. As was observed in the Memorial a description of
the Rio Coco was included in a document prepared by Commander Kennedy at the request of the
Secretariat of the United Nations in connection with the 1958 Geneva Conference on the Law of
the Sea (MN, pp. 10-11, para. 18).
13. In 1958 CommanderKennedy reviewed the potential straight baselines along
Nicaragua’s Caribbean coast. That review concerne d all of the cays to the south of the Main Cape
Channel. In a letter to Mr.E.C. urr of the Colonial Office of 27November1958,
Commander Kennedy indicated that it should be noted that an increase in breadth of the territorial
sea to 6miles ⎯ the United Kingdom at that time rejected any claim to a territorial sea beyond
3 nautical miles ⎯ would turn nearly the whole area of the waters between the cays and reefs to the
south of the Main Cape Channel into territorial sea. Annex39 to the Reply also contains a
figure ⎯ figure9 of the judges’ folder ⎯ the CommanderKennedy prepared in connection with
assessing the potential straight baselines of Nicaragua. That figure indicates that
Commander Kennedy in that assessment took into acc ount all of the cays to the south of the Main
Cape Channel.
14. In the Rejoinder, Honduras responded ⎯ albeit indirectly ⎯ to the argument that the
contiguity of the disputed cays and undisputed Ni caraguan territory is relevant to establishing title - 53 -
to them at the time Nicaragua and Honduras attain ed their independence from Spain in 1821. In
the Rejoinder Honduras has included a number of plates indicating a 12-nautical-mile territorial sea
(RH, Vol. I, plates 44, 47 and 48). Under the curre nt law of the sea, the 12-nautical-mile territorial
sea of the cays in dispute overlaps with the 12- nautical-mile territorial sea of the undisputed
territory of both States. However, the current 12- nautical-mile limit is not relevant to establish the
situation in 1821 and does not negate the fact that the cays in dispute are closer to undisputed
Nicaraguan territory than any territory of Honduras.
15. Honduras also has made an explicit argument concerning the contiguity of the cays south
of the Main Cape Channel to other territory. Th e Rejoinder argues that the islands and rocks that
lie north of the parallel of 14°59'48"N are mo re proximate to the mainland coast of Honduras
than to the coast of Nicaragua (RH, p.114, pa ra.6.26). Honduras submits that “it remains for
Nicaragua to prove its sovereignty over the islands and rocks that are more proximate to Honduras”
(RH, p. 114, para. 6.26). It is true that the cays to the north of the Main Cape Channel are closer to
Honduras than to Nicaragua. But those cays are not in dispute between the Parties. The cays to the
south of the Main Cape Channel which are in dispute between the Parties are closer to the
Nicaraguan mainland coast. The southern, Nicara guan, bank of the Rio Coco extends further
seaward than the northern, Honduran bank of that river.
16. In any case, the relation between the mainland coasts and the cays in dispute that
Honduras seeks to establish without success is not d ecisive for the contiguity argument. The cays
are closer to the undisputed insular territory of Nicaragua to the south of the parallel of
14° 59' 48" N than either mainland coast by a fairly big margin.
17. As I mentioned before when I discussed the nature of cays, new cays may build up on
reefs and existing cays may also disappear. That is also the case for the area to the east and north
of the Rio Coco. This uncertainty about the geography of the area is compounded by the
inadequacy of the hydrographic surveys of the area.
18. The first hydrographic surveys along the Atlantic coast of Nicaragua and Honduras were
carried out by the United Kingdom in the first half of the nineteenth century. Those surveys still
provide the basis of two charts of the United Kingdom Hydrographic Office covering the area.
Those charts have been used by the Parties to these proceedings. That concerns chart 1218 “Cuba - 54 -
to Miskito Bank” and the larger scale chart2425 “R iver Hueson to False Cape”. Chart1218 was
for instance used to compile figure A to the Memo rial and a section of chart 2425 was reproduced
as plate 3 in the Counter-Memorial.
19. Chart 2425 indicates that surveys for it were carried out between 1830 and 1843 and that
uncharted shoals may exist within the area c overed by the chart. Chart1218 registers the
uncertainty concerning the information contained in it in the following terms in a note on
Incomplete Surveys:
“Depths over Miskito Bank and adjoining reefs south of 17° N are derived from
various nineteenth century Admiralty surv eys, supplemented by some recent open
surveys. Uncharted shoals may exist in these areas.”
That area south of 17°N mentioned in the note covers all of the banks that were described before.
A survey that would allow establishing the presence and location of all cays and low-tide
elevations on those banks would be very expensive. It would cost some €5 million. Such a survey
would moreover only provide information of a transient situation due to the instability of offshore
features, making it of limited use.
20. The latest edition of chart 1218 indicates some of the uncertainties and changes that have
taken place in the offshore geography. In respect of Alargardo Reef, which lies almost due east of
the mouth the RioCoco, the chart observes that it is reported to be 2nautical miles east. The
Pichones Cays, located to the north of the Main Cape Channel, according to the chart are awash.
That means that they are also under water at low-water.
21. There are other sources of information th at confirm that the cays in the area to be
delimited are not stable. As Honduras has indicated in its Counter-Memorial ⎯ footnote2 of
Chapter 2 ⎯ the cays that were originally referred to as Logwood Cay and Media Luna Cay are
now both submerged. A further case in point is the Constitution of Honduras. The Constitutions of
Honduras of 1957, 1965 and 1982 all make referen ce to Cayos GraciasaDios. The location of
these cays is indicated on plates 37 A to C of the Rejo inder. At that same location on charts 1218
and 2425 of the United Kingdom Hydrographic Office no cays are present. The same is the case
for an official map of Honduras that was publishe d in 1954 just three years before the adoption of
the 1957Constitution. That official map of Honduras can be found at plate25 of the
Counter-Memorial. - 55 -
22. It is beyond doubt that there is a large deal of uncertainty in respect of the geography of
the cays in the area to be delimited. Cays that are mentioned in three successive Constitutions of
Honduras are inexistent. Cays that did exist have become submerged and there is uncertainty about
the location of reef areas and the depth of the water overlaying them.
23. Madam President, in the face of the uncertain ties related to the cays, the relevance of the
mainland coasts of Nicaragua and Honduras for the maritime delimitation is all the more obvious.
The general direction of those coasts can be ascertained without difficulty. Those general
directions are not subject to significant changes as they do not vary as a result of minor shifts of
individual points along the coast. At this point however, it is worthwhile to stress that the
uncertainty concerning the location or existence of cays is not the main reason to accord them no
weight in the maritime delimitation. Even if no such uncertainty existed, a treatment of the cays on
their merits should not accord them any weight in the maritime delimitation between Nicaragua and
Honduras. I will return to that question later.
The views of the Parties on the geography ⎯ the relevant coasts
24. Madam President, I will now turn to the views of the Parties on the geography. First of
all, allow me to say something more about the mainland coasts of Nicaragua and Honduras and
their relevance for the maritime delimitation. These coasts meet at the mouth of the Rio Coco. The
land boundary between the Parties through much of the central and eastern land territory follows
the thalweg of the RioCoco. The endpoint of the thalweg at the mouth of the river forms the
starting-point of the maritime boundary between Nicaragua and Honduras (MN, p. 24, para. 9; RN,
p. 29, para. 3.10 and pp. 197-203, paras. 10.7-10.22). This Friday, Professor Pellet will have to say
more about the starting-point of the maritime delimitation.
25. The most significant feature of the mainland coasts is the radical change in direction at
the land boundary terminus. In the Memorial (MN, p.14, paras.32-33), Nicaragua described the
coastal relationship between Nicaragua and Honduras as an elbow fo rmation. As figure 10 shows,
the mainland coast of Nicaragua from the termi nus of the land boundary with Honduras generally
runs south. The mainland coast of Honduras starting from that same point generally runs west. At - 56 -
the terminus of their common land boundary these coasts form an acute angle, or if you like, a bent
elbow.
26. What did Honduras have to say about this marked coastal geography thus far? In its
Counter-Memorial very little; just one paragraph. At the very end of the last chapter before the
submissions, Honduras argues that, based upon a bisector of the two coastal fronts, Nicaragua
invokes in respect of Honduras a coastline which bears no relation to the actual configuration of the
coastline (CMH, p.149, para.8.11). No explanati on for this statement was offered. It also
remained unclear how Honduras viewed its relevant coastline. As I will explain subsequently,
Honduras in the Rejoinder has presented a view of its coast that is very similar to the configuration
of that coast identified by Nicaragua. The C ounter-Memorial did not offer any criticism of the
relevant coast of Nicaragua as defined in the Memorial.
27. In the Rejoinder, Honduras does present its views on the configuration of the relevant
coasts. The Rejoinder reveals that Nicaragua and Honduras differ on three points of fundamental
importance: the definition of the relevant coasts in their relation to the area to be delimited; the
point at which the direction of the coasts of Ni caragua and Honduras changes; and the length of
the relevant coasts.
28. Honduras submits that the relevant coast will not extend beyond where it ceases to face
the maritime area to be delimited (RH, p. 111, pa ra. 6.16). According to Honduras, since the land
boundary between Nicaragua and Honduras meets the sea along a portion of the coast of Central
America that faces east, only such eastward-facing coasts are relevant (RH, p.112, para.6.19).
Honduras for its own coast distinguishes two sector s. Honduras holds that a first sector between
the land boundary terminus and False Cape faces eastwards (RH, p. 112, para. 6.19). That sector is
indicated now on figure 11. Actually, that part of the coast of Honduras does not face east. I will
return to that point in just a minute. Let me first finish with Honduras’s view on the relevant
coasts. The Rejoinder submits that the second sector of Honduras’s coast faces north. According
to the Rejoinder “the northward facing coast of Honduras west of CapeFalso has no relevance in
the maritime boundary analysis between Honduras and Nicaragua” (RH, p.112, para.6.18).
Honduras submits that the entire Atlantic coast of Nicaragua faces east, but that only a very small
sector of that coast is Nicaragua’s relevant coast (RH, p. 112, paras. 6.19-6.20). - 57 -
29. Figure 12 on the screen illustrates the projec tions of the coasts as defined by Honduras.
What is immediately apparent is that a large part of the maritime area on which the coasts of
Nicaragua and Honduras abut is not included in the projections of the coasts of the Parties. This
concerns an area that is, however, part of the over lapping entitlements of the Parties. All of this
area is within 200 nautical miles of the coasts of the Parties and is directly in front of their coasts.
The fact that the approach to the maritime delimitation proposed by Honduras completely
disregards a large part of the area to be delimited proves that it is an artificial construction to boost
Honduras’s claim line allegedly based on the conduct of the Parties.
30. If the area of overlapping entitlements of the Parties is taken into consideration it
becomes obvious that the bisector proposed by Nicaragua is based on the coastal geography and its
relation to the maritime area on which it abuts. As figure13 shows, Nicaragua’s approach takes
into account the overlapping entitlements of the Parties and proposes to divide them equally
between the Parties.
31. The second point in respect of the relevant coasts on which the Parties differ is the point
at which the direction of the coasts of Nicaragua and Honduras changes direction. That
disagreement should, however, not hide from view th at there also is a large measure of agreement
between the Parties on the general direction of th e coasts. Nicaragua considers that the general
direction of the coast of Honduras is almost due east-west and faces almost due north. Honduras
agrees that its coast west of False Cape faces north ward (RH, p. 112, para. 6.18). The Parties also
agree that all of the Atlantic mainland coast of Nicaragua faces east. The admission of Honduras
that the mainland coasts change direction near the land boundary is of great significance. It implies
that the method of delimitation that will be adopt ed by the Court should reflect that change in
direction. That method should result in a delimitati on line that has an equal relationship to these
two general directions.
32. Where the Parties differ in respect of the general direction of the mainland coasts of
Nicaragua and Honduras is whether that change takes place at False Cape, as Honduras maintains,
or at Cape Gracias a Dios, which is the position of Nicaragua.
33. Honduras’s choice for FalseCape as the point at which the mainland coasts change
direction is explained as follows in the Rejoinde r. First, Honduras submits that since the land - 58 -
boundary between Nicaragua and Honduras meets th e sea along a portion of the Central American
coast that faces east, only such eastward-facing coasts are relevant (RH, p. 112, para. 6.19). Next,
Honduras argues that although the local Honduran coast between CapeGraciasaDios and
FalseCape runs north-west, that does not deny the fact that the Central American coast of
FalseCape to Nicaragua’s border with CostaRica runs south (RH, p.112, para.6.20). In other
words, Honduras, although it has to recognize that no part of its coast faces east, is using the
general direction of the coast of Nicaragua to acco rd itself a coast that fits its purposes of creating
the impression that only east-facing coasts are re levant and only areas to the east of those
east-facing coasts need to be delimited. As I observed before and as was indicated on the figure
showing the Honduran view on coastal projections , Honduras ignores that the area to be delimited
does not only lie due east of Cape Gracias a Dios, but also encompasses the much larger area to the
north of it.
34. A closer look at the geography shows that the point at which the northward-facing coast
changes in an eastward-facing coast is not at False Cape. On the screen we now have figure14
showing the general direction of the coast betw een Punta Patuca and Fal se Cape and the general
direction of the coast between False Cape and Cape GraciasaDios. The change of direction at
False Cape is hardly discernable. It would seem that it is not without reason that False Cape got its
name.
35. To the contrary, a marked change in th e direction of the mainland coast takes place at
Cape Gracias a Dios. This is apparent if the general di rection of the coast between
Cape Gracias a Dios and Punta Gorda is added to the figure on the screen.
36. Apart from the physical geography, there is the political geography. The land boundary
between Nicaragua and Honduras terminates in the thalweg of the Rio Coco at Cape
GraciasaDios. In the present case, the political and the physical geograp hy both point towards
Cape GraciasaDios as the hinge upon which the ma ritime delimitation turns. This coincidence
facilitates the task of the Court. The relationshi p of the mainland coasts to the north and the south
of the land boundary terminus indicates the direction of the maritime boundary. The land boundary
terminus at the same time provides the point of departure for the maritime delimitation. - 59 -
37. A third point in respect of the relevant co asts on which the Parties differ is their length.
As Nicaragua set out in the Memorial and the Reply (MN, pp.95-114, paras.20-61; RN,
pp.27-28, paras.3.3-3.5 and pp.180-182, paras. 9.6-9.15) the relevant coasts of Nicaragua and
Honduras are formed by their mainland coasts abutti ng on the maritime area to be delimited. The
Nicaraguan coast has, measured along a straight line as indicated in figure15, a length of
approximately 453km. The mainland coast of H onduras has, measured in the same way, a total
length of approximately 559km. The mainland coasts stand in a ratio of 1 to 1.2. Those coastal
lengths are such that the bisector method proposed by Nicaragua satisfies the criterion of
proportionality (RN, p. 193, para. 9.53).
38. In the Rejoinder, Honduras takes a radica lly different view. Honduras submits that its
relevant coast is the coast from FalseCape in Honduras to the land boundary with Nicaragua.
Honduras holds that for Nicaragua the coast from LagunaWano to the land boundary is the
relevant coast (RH, p.112, para.6.19). H onduras included these relevant coasts in a large-scale
figure in the Rejoinder at plate42, on the screen as figure16. To give a better impression of the
location of these relevant coasts as proposed by Honduras, they have been included on a map of the
coasts of Nicaragua and Honduras. As can be seen , the relevant coast proposed by Honduras is an
insignificant part of the coasts of Honduras and Nicaragua.
39. How does Honduras reach the conclusion that the relevant coasts are only such a minute
part of the coasts of Nicaragua and Honduras that face the delimitation area? As was mentioned
before according to Honduras, since the land boundary between Nicaragua and Honduras meets the
sea along a portion of the Central American coast th at faces east, only such eastward facing coasts
are relevant (RH, p. 112, para. 6.19). As I just set out, Honduras is mistaken in its belief that there
is a part of its coast that faces east. The gene ral direction of the coasts changes at the land
boundary terminus at Cape Gracias a Dios. The only part of the Central American coast that faces
east is the mainland coast of Nicaragua from its land boundary with Honduras up to its land
boundary with Costa Rica. The coast of Honduras generally faces in a northern direction and that
north-facing coast is the relevant coast for the maritime delimitation with Nicaragua.
40. Now what about the Nicaraguan relevant coast? As was just mentioned, according to
Honduras only east-facing coasts are relevant fo r the delimitation between Nicaragua and - 60 -
Honduras. However, as can be seen on the map of th e region included in figure 17, all of the coast
of Nicaragua is east facing. Still, Honduras maintains that only the coast of Nicaragua between the
Rio Coco and the Laguna Wano is the relevant coast of Nicaragua. How does Honduras succeed in
cutting off almost all of the eastward-facing coast of Nicaragua? Honduras offers two reasons.
First, according to Honduras where the shared coast of the Parties is nearly linear “the length of the
relevant coast of one Party should no t be substantially greater than that of the other. This is so
because there is no advantage to a relatively longe r coast in such circumst ances.” (RH, p.111,
para. 6.17.)
41. What Honduras is saying is that Nicaragua should not have the advantage of a much
longer east-facing coast because Honduras does not have such an east-facing coast. As a matter of
fact Honduras has no east-facing coast and there is no linear relationship between the coast of
Nicaragua and Honduras. That is not a justification for disregarding most of Nicaragua’s
east-facing coast. Honduras does not mention any authority to support its position.
42. The second justification Honduras gives for attributing Nicaragua an insignificant part of
its east-facing coast as its relevant coast can be found at paragraphs 6.20 and 6.21 of the Rejoinder.
Honduras submits that the maritime boundary “must respect the islands of one Party or the other
Party as the boundary makes its way between them a nd extends further to the east”. That is an
absolutely novel view on the role of islands in maritime delimitation. Honduras’s thesis implies
that in any case involving islands in front of a mainland coast, that mainland coast would not
qualify as a part of the relevant coast of the Stat e concerned. Let me illustrate this with two
examples. In the Gulf of Maine case, a Chamber of this Court had been requested to delimit a
maritime boundary off the mainland coasts of Canada and the United States. The area concerned is
strewn with small islands and rocks. These have been indicated in green on figure 18. If the view
of Honduras were to be accepted only those islands and rocks would qualify as the relevant coasts
of Canada and the United States. That is not the methodology the Chamber adopted. The Chamber
took into account the mainland coasts of Canada and the United States behind these minor features
to establish the relevant coasts for the delimitation ( I.C.J. Reports 1984 , pp.332-333,
paras. 210-213). - 61 -
43. In the Libya/Malta case the Court considered the delim itation of the continental shelf
between Libya and Malta. The Court gave a decision that was limited to the area lying between the
meridians of 13°50'E and 15°10'E ( I.C.J. Reports 1985 , pp.26-28, para.22). A hypothetical
equidistance line between Libya and Malta ⎯ shown on figure 19 ⎯ is controlled by basepoints on
the Libyan mainland coast and the Maltese islet of Filfla. Figure20 shows a large-scale map of
Malta identifying the location of Filfla. If one were to accept the Honduran thesis concerning the
definition of the relevant coasts set out in the Re joinder, the Court should not have looked at any
other coast of Malta, apart from Filfla. That is not what happened. The Court found it equitable
not to take into account Filfla in the calculati on of the provisional equidistance line between Malta
and Libya (ibid., p.48, para.64). That line was calculated from the coast of the island of Malta,
lying to the north of Filfla. To establish the relevant coast of Malta the Court not only looked at the
island of Malta, but also took into account the island of Gozo ( ibid., p. 20, paras. 15-16 and p. 50,
para. 68). That definition of the relevant coast of Malta by the Court, just as the Court’s treatment
of Filfla, contradicts the thesis of Honduras conc erning the definition of the relevant coast of
Nicaragua in the present case. The Court’s approach confirms Nicaragua’s position that very small
islands should not be given any weight even at the initial stage of a mar itime delimitation that
consists of the drawing of a provisional line.
44. Honduras’s definition of the mainland coasts is clearly an ex post facto attempt to
provide a geographical justification for a maritime boundary along the parallel of 14°59'48"N.
That parallel runs due east. Honduras has conjured up an east-facing coast fo r itself to support the
parallel. The parallel results in an unequal divisi on of the area to be delimited, leaving all of the
maritime area to the north of it to Honduras. H onduras invites the Court to look due east standing
at Cape Gracias a Dios and ignore th e maritime areas to the north-east of Cape Gracias a Dios. In
Honduras’s views those maritime areas are a no-man’s-land that is beyond Honduras’s north-facing
coast and Nicaragua’s east-facing coast. This maritime area is not a no-man’s-land. It is an area of
overlapping entitlements of the Parties. Noneth eless, Honduras does not have any problem with
attributing all of that area to itself. In thatprocess Honduras completely ignores the presence of
Nicaragua. Honduras’s arguments concerning the mainland coasts of the Parties only confirm - 62 -
Nicaragua’s view that Honduras’s preferred method of delimitation has no relation to the
geography of those mainland coasts.
45. Madam President, let me now return to the cays in the area between the maritime
boundary claims of the Parties. Much of the ar gument of Honduras in this case is devoted to those
cays. In what seems to be an attempt to c onfuse matters, Honduras has repeatedly argued that
Nicaragua, by using the terms “islets” and “rocks” to refer to certain islands in the area to be
delimited, attempts to diminish their legal significance (e.g., CMH, p.16, para.2.6; RH,
pp. 114-115, para. 6.28). Honduras has explained that it understands that the reference to islets and
rocks is intended to denude the features concerne d of the legal status accorded to islands under
Article 121 of the Law of the Sea Convention (CMH, p. 16, para. 2.6). Nicaragua has never made
such a suggestion concerning Article 121. What is at issue is the weight to be attributed to islands
in the maritime delimitation before the Court. In that respect, three issues are particularly relevant:
title to islands, their size and their location. Th e issue of sovereignty will be addressed later this
week. As was said earlier, Nicaragua holds that it has title to all of the cays to the south of the
Main Cape Channel.
46. Honduras considers that the cays located between the maritime boundary claims of the
Parties are important islands. The implication a pparently is that the cays, because of their
importance, should receive full weight in the maritime delimitation between Nicaragua and
Honduras. Madam President, are those cays really important islands? In the Counter-Memorial, at
paragraph 2.3, Honduras identified four important islands, Savanna Cay, South Cay, Bobel Cay and
PortRoyalCay. These cays are identified in figur e21. The largest of those cays is Bobel Cay.
2
Bobel Cay measures 0.029km . That surface area represents a square of about 170m. The
smallest of the cays, Port Royal Cay, is just 0.0028 km 2, the same surface area as a square of just
over 50 by 50 m.
47. To give a better impression of the size of the cays allow me to compare them to two
other features of some notoriety. The first is Ro ckall. This rock, which is part of the United
Kingdom, is located some 380 km west of Scotland. Rockall may be considered a typical example
of an island that falls under Article121(3) of the United Nations Convention on the Law of the
Sea, which provides that rocks which cannot sust ain human habitation or economic life of their - 63 -
own shall have no exclusive economic zone or cont inental shelf. Rockall is about 30 by 25 m, not
that much smaller than Port Royal Cay. As I just mentioned, that cay has the same size as an area
with sides of 50m. I already referred to the role of Filfla in the Libya/Malta case. The Court
disregarded Filfla in the delimitation it effected between Libya and Malta. Filfla is approximately
500 m by 250 m. Savanna Cay, So uth Cay, Bobel Cay and Port Royal Cay would easily fit within
the area occupied by Filfla.
48. Another consideration to establish the weight of islands is their location in relation to
their relevant mainland coasts. The location of the cays off the mainland coasts of Nicaragua and
Honduras implies that they have a disproportionate effect on the course of an equidistance line. An
equidistance line starting from the mouth of the Rio Coco extends in a north-easterly direction for
about 8 nautical miles without being affected by the presence of the cays located in the delimitation
area. After that distance the equidistance line is completely controlled by basepoints on the cays.
That line completely disregards the mainland coasts of the Parties.
49. In the Reply, Nicaragua submitted that the Pa rties agreed that the islets in the area have
no effect on the delimitation (RN, p.10, para.1.19 ). In this connection, the Reply referred to
paragraph7.28 of the Counter-Memorial. That paragraph concludes that Honduras does not use
these islands ⎯ that is, the disputed cays ⎯ as basepoints, and claims neither shelf nor economic
zone for the islands as such. Honduras’s claim, the Counter-Memorial observes, is based on its
mainland and the long history of an establishe d and accepted boundary. In the Rejoinder,
Honduras on more than one occasion takes issue with Nicaragua’s reference to paragraph7.28 of
the Counter-Memorial (RH, pp.5-6, paras.1.13-1. 14; p.16, para.2.15; p.26, para.2.44).
However, the Rejoinder does not explain why Ni caragua is wrong in considering that the cays
should get no weight in the delimitation to be eff ected by the Court. All Honduras does is to refer
to the alleged acceptance of the parallel of 14° 59'48"N as a maritime boundary (RH, p.16,
para. 2.15). At the end of paragraph 2.15 of the Rejoinder Honduras suggests that it has argued that
the cays are significant in establishing a maritime bounda ry that is not along its parallel. However,
in that context Honduras only refers to the fact that the cays demonstrate the practicality of a
boundary along the parallel of 14°59'48"N. The a lleged practicality of that line does not mean
that it treats the cays on their merits or that it provides an equitable solution. - 64 -
50. To conclude on the geography of the cays. Whether the cays in the area to be delimited
are indicated by the term “island”, “islet”, “rock” or yet another term is not an issue. What is
important ⎯ and that has been stressed by Nicaragua throughout its pleading ⎯ is that they be
treated on their merits (MN, pp.138-144, par as.31-43; RN, pp.30-34, paras.3.12-3.21 and
pp. 181-182, paras. 9.12-9.15). The bisector method proposed by Nicaragua achieves such a result
(MN, p.144, paras.42-43; RN pp.181-182, paras.9.12-9.15). That method ensures that due
weight is accorded to the mainland coasts of the Parties and that no disproportionate weight is
accorded to the cays to the north and the south of the bisector.
51. Honduras’s 15°N line does not achieve an equitable result. The 15°N line bears no
relation to the mainland coasts of the Parties a nd places the Nicaraguan cays to the south of the
Main Cape Channel on the wrong side of th e maritime boundary. Honduras has presented a
provisional equidistance line to justify its parallel. That line was depicted on plate 48 of the Reply
now reproduced on figure 22. That provisional equidistance line ⎯ based on the assumption that
the disputed cays are part of the territory of Honduras ⎯ leads to an even larger cut-off of the
maritime zones of Nicaragua than the paralle l. To argue, as Honduras does (RH, pp.130-131,
paras.8.16-8.20), that this provisional equidistance line shows that its parallel is equitable is not
credible. Two inequitable lines do not make an equitable boundary.
Madam President, I still have some 15 minutes more. Would you like me to finish or would
you like me to pause now?
The PRESIDENT: We would like you to finish. Please do proceed.
Mr. ELFERINK: Thank you.
The geography at the mouth of the Rio Coco
52. The maritime boundary between Nicaragua and Honduras has to start from the terminus
of the land boundary between both States in the Rio Coco. The Parties agree that the land
boundary is the thalweg of the Rio Coco. They disagree about the implications of the continuous
accretion at the mouth of the river for the maritime delimitation. That matter will be addressed on - 65 -
Friday by my colleague ProfessorAlainPellet. I would like to point out some aspects of the
changing geography at the mouth of the river.
53. In 1962 a Mixed Nicaraguan-Honduran Boundary Commission established the endpoint
of the thalweg as it existed at that time. Figure23 contains a recent image of the mouth of the
Coco River that shows the extent of the seaward shift of the endpoint of the thalweg since 1962.
This is a SPOT image that was submitted to the Cour t last month. This is the most recent image
that was available. It is from November 2006. The red dot in the river shows the endpoint of the
thalweg in 1962. In November 2006 the endpoint of the thalweg had moved more than 2 km to the
north and the east. Honduras apparently has difficulties in dealing with this geographical reality.
As Nicaragua explained in the Reply, the maritime boundary proposed by Honduras in the
Counter-Memorial cut across Nicaraguan territory. In the Rejoinder, Honduras recognized that
effect of its proposed maritime boundary and now requests the Court to establish the maritime
boundary from a point seaward of the mouth of the Rio Coco (RH, pp. 125-127, paras. 8.02-8.06;
and submission 2).
54. Honduras in the Rejoinder still has not come to grips with the geography at the mouth of
the Rio Coco. That is apparent from the provisional equidistance line it presents in the Rejoinder.
Honduras observes in respect of that line: “[d]ue to the unstable character of the mouth of the
River Coco, the initial segment is a simplified equidistance line that runs from the point established
by the 1962 Mixed Commission to the tripoint with Honduras’s Bobel Cay and Nicaragua’s
Edinburgh Cay” (RH, p. 130, para. 8.17).
55. Part of that segment of Honduras’s provi sional equidistance line in the RioCoco has
been included in the satellite image of the mouth of the River from November2006. This
equidistance line, if one may call it that, starts landward of the terminus of the land boundary and
cuts across the land territory of Nicaragua. There is no justification for such an approach.
The general direction of the land boundary
56. The Parties continue to disagree about the general direction of their mutual land
boundary. Nicaragua considers that the general dir ection of the land boundary in the RioCoco is
approximately north-east. That general direction is indicated on figureII of the Reply and on - 66 -
figure24 on the screen. That general direction is about the same as the general direction of the
Main Cape Channel that gives access to the river from the sea.
57. In the Rejoinder, Honduras maintains that the Rio Coco runs east as it nears the coast
(RH, p. 108, para. 6.05). Again, this is an instance in which Honduras focuses on micro-geography
to argue its case. As was set out earlier, this is also the case for Honduras’s view on the relevant
coasts ⎯ Honduras focuses on a short stretch of the mainland coasts in the vicinity of the land
boundary terminus ⎯ and the weight it attributes to the cays in the area to be delimited. As far as
the general direction of the Rio Coco is concerned, Honduras looks at a small section of the river as
it nears the coast to determine its general direction. This micro-geographical approach is then used
to justify a maritime boundary that extends seaward s for a distance that is much longer than the
small section of the river Honduras uses to determ ine the general direction of the land boundary.
The section of the land boundary Nicaragua takes in to account to establish its general direction is
comparable in length to the maritime boundary between Nicaragua and Honduras.
The Nicaraguan Rise
58. Yet another point on which the Parties now differ is the significance of the Nicaraguan
Rise. The geography of the Nicaraguan Rise was se t out in detail in the Memorial (MN, p.18,
paras.42-45). The Nicaraguan Rise is the natura l prolongation of the land territory of Nicaragua
and Honduras. Nicaragua has argued that the Nica raguan Rise is a relevant circumstance for the
delimitation between the Parties (MN, pp1 . 31-133, paras1.4-21; RN, pp1 .83-184,
paras.9.20-9.25). On the screen we have ag ain the figure that shows the contours of the
Nicaraguan Rise as represented by water depth lines ⎯ now numbered 25. The Nicaraguan Rise
runs in a north-easterly direction. That north-eastward trend of the Nicaraguan Rise is aligned with
the bisector Nicaragua considers to be an equitable boundary.
59. Honduras does not agree with Nicaragua’s views concerning the Nicaraguan Rise.
Honduras’s legal argument to reject the Nicara guan Rise as a relevant circumstance for the
maritime delimitation will be addressed tomorrow by my distinguished colleague,
Mr. Ian Brownlie. As far as the geography of th e Nicaraguan Rise is concerned, the only criticism
of Honduras is that the Nicaraguan Rise is of dubious geomorphologic authenticity, with a - 67 -
nomenclature which is largely new (CMH, p. 24, pa ra. 2.22; RH, p. 117, para. 6.33). Apart from
that uncorroborated statement, Honduras does not offer any argument refuting Nicaragua’s detailed
argument concerning the geography of the Nicaraguan Rise set out in the Memorial.
60. Before these proceedings, Honduras had no di fficulty in recognizing the existence of the
Nicaraguan Rise and the fact that it was relevant for the maritime delimitation between Nicaragua
and Honduras. In a diplomatic Note from the Mi nister for Foreign Affairs of Honduras to the
Minister for Foreign Affairs of Nicaragua of 11July1995 (CMH, Vol.II, Ann.54) a number of
paragraphs address the Nicaraguan Rise. Far from refuting its authenticity, the Note asserts the
relevance of the Rise in no unclear terms (CMH, Vol. II, Ann. 54, at p. 140). The diplomatic Note
only reveals a difference of opinion with Nicaragua as far as the attachment of the Rise to the
mainland coasts of the Parties is concerned, but no difference about its existence or relevance to
maritime delimitation. Among others, the Honduran Note refers to an “unquestionable geomorphic
reality”. The Note also obser ves that the continental territory of Honduras dominates the
Nicaraguan Rise to the east and the north of the parallel that Honduras claims as a maritime
boundary. As the figure depicting the Nicaraguan Rise shows, that assertion, is not borne out by
geography. The Nicaraguan Rise has an equal rela tionship to both mainland coasts. That equal
relationship is not reflected in the 15°N lin e of Honduras, which attributes most of the
Nicaraguan Rise to Honduras.
The delimitation practice of Honduras and third States
61. The final topic I will address today is th e reliance of Honduras on bilateral delimitation
treaties. I will not address the issue of the interest s of third parties that might be affected by the
delimitation line the Court has been requested to es tablish. As will be argued later in this first
round of pleadings of Nicaragua by my distin guished colleague ProfessorAlainPellet, the
delimitation line that Nicaragua proposes does not affect the rights of third States.
62. In the Counter-Memorial, Honduras relied on the delimitation practice in the Western
Caribbean to bolster its 15°N line (CMH, pp.20-23, paras.2.13-2.20). In the Reply, Nicaragua
made a detailed analysis of the Honduran argum ent (RN, pp.34-48, paras.3.22-3.54). It was
concluded that none of the treaties invoked by Honduras supports the thesis that Nicaragua has - 68 -
accepted the parallel of 14°59'48"N as a mar itime boundary with Honduras (RN, pp.34-40,
paras.3.22-3.37). Bilateral delimitation treati es also do not provide support for the Honduran
thesis that the use of a parallel results in an e quitable delimitation in the case of Nicaragua and
Honduras (RN, pp. 40-44, paras. 3.38-3.44). The Reply also concluded that the analysis of regional
practice showed that examples invoked by Hondur as rather supported the method of delimitation
proposed by Nicaragua (RN, p. 44, para. 3.44).
63. The Counter-Memorial also suggested that th e approach of this Court and other tribunals
in respect of bilateral treaties of third States implied that those treaties could have consequences for
a State that is not a party to them (CMH, p. 23, para. 2.20). The Reply addressed this point (RN,
pp.45-48, paras.3.45-3.54) and concluded that agreements involving third States or one of the
parties in a litigation cannot lead to ignoring the geography of a case to the detriment of the other
party to that litigation (RN, pp. 47-48, para. 3.54). As was also noted, the Court in the North Sea
Continental Shelf cases took exactly the opposite approach than the one proposed by Honduras
(RN, p. 46, paras. 3.48-3.49).
64. The Rejoinder does not revisit the Counte r-Memorial’s argument on the relevance of the
delimitation agreements in the regi on or elsewhere. There is no need to address that issue further
for the moment. The only point for me to note is the recent Barbados v. Trinidad and Tobago
arbitration. The tribunal in that arbitration cons idered an argument made by Trinidad and Tobago
that it was required to take into account other delimitations in the region. The tribunal rejected that
view, except in so far as another delimitation might identify the limit of the area claimed by one of
the parties to the proceedings (in the Matter of an Arbitration Between Barbados and the Republic
of Trinidad and Tobago (Barbados/Trinidad and Tobago) , Award of the Tribunal (11 April 2006),
pp. 104-105, paras. 344-349). That conclusion reaffirms the positi on of Nicaragua that bilateral
treaties of third States or of Honduras and third States are res inter alias acta for Nicaragua.
Moreover, in the context of the present case the c onclusion of the Award also implies that the
parallel of 14°59'48"N identifies the limit of the area claimed by Honduras. Honduras has
concluded a delimitation treaty with Colombia that employs that parallel as a boundary. - 69 -
Conclusions
65. Having come to the end of my pr esentation on the geography of the maritime
delimitation, one thing should have become clear: there is a striking difference in the geographical
perspectives presented by the Parties. Honduras seeks to focus the attention of the Court
exclusively on the mainland coasts of the Parties in the direct vicinity of the CocoRiver and the
cays off the mouth of the river. Honduras discards a ll of the geography that is not in the direct
vicinity of the mouth of the river.
66. Geography obviously does not help the Honduran case. A map that shows the mainland
coasts of Nicaragua and Honduras immediately points out two things. All of the islands in the area
to be delimited are insignificant in comparison to these mainland coasts. Equally important, the
mainland coast of Honduras faces almost due north and the mainland coast of Nicaragua faces east.
As a result, the mainland coasts of Nicaragua a nd Honduras form an acute angle. An equitable
maritime boundary between Nicaragua and Honduras has to reflect those geographical realities.
Nicaragua submits that the bisector method achie ves such a result. MadamPresident, this
concludes my statement. I thank you and the other Members of the Court for your kind invitation.
The PRESIDENT: Thank you very much, Dr. Oude Elferink.
This brings to an end today’s sitting. Th e Court will meet again at 10 a.m. tomorrow to
continue the pleadings of Nicaragua. The Court now rises.
The Court rose at 1.30 p.m.
___________
Public sitting held on Monday 5 March 2007, at 10 a.m., at the Peace Palace, President Higgins presiding, in the case concerning Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)