Non-Corrigé
Uncorrected
CR 2007/9
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2007
Public sitting
held on Thursday 15 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 jeudi 15 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
Abraham
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
Abraham
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. Professor Sands.
Mr. SANDS: Thank you very much, Madam President, Members of the Tribunal . . .
The PRESIDENT: Tribunal? Are we Members of the Tribunal?
Mr. SANDS: I apologize. I have written that word in error and I hope you will forgive me.
THE CONDUCT OF THE P ARTIES II ⎯ THE 15TH PARALLEL
I. Introduction
1. Madam President, Members of the Court, on Tuesday I addressed Honduras’s effectivités
in support of its sovereignty argument on the islands that lie north of the 15thparallel. Today, I
will address a closely related issue: the c onduct of the Parties recognizing and accepting the
15thparallel as the line that divides the maritimespaces of the Parties. I use the words “closely
related” because it will be apparent that conduc t in relation to the islands and the maritime
boundary are closely, even intimately, connected. Many of the acts expressing sovereignty over
the islands also constitute conduct recognizing the 15thparallel as the boundary. That is
particularly true for acts relating to oil explotion, such as the construction of the antenna on
Bobel Cay, erected under the concession granted by Honduras to Union Oil in 1967. It is also true
for the fisheries licences that provided the co mmercial rationale for the fishermen to base
themselves on Savanna Cay and othe r islands and cays and who e ngage in fishing activities down
to the 15th parallel but not beyond.
2. My presentation this morning focuses on the conduct of Honduras and Nicaragua mainly
in relation to the two main elements of conduct ⎯ oil concessions and fisheries ⎯ although I will
touch also on the question of naval patrols. I can briefly summarize the arguments we made in our
written pleadings, before turning once again in detail to the actual evidence that is before the Court.
3. In our submission, the Parties’ conduct demonstrates the existence of a tacit agreement
that the 15thparallel has long been treated as the line dividing the maritime spaces. There is no
ambiguity in the mutual practice in granting oil concessions from as far back as the mid-1950s,
through the 1960s, into the 1970s and even beyond. The conduct in relation to oil concessions is
crystal clear: both sides have treated the 15th parallel as th e dividing line of their respective areas - 11 -
of sovereignty and exercise of jurisdiction. Th ere is no evidence before the Court that Honduras
has ever granted a concession that goes south of th e 15th parallel. There is no evidence before the
Court that Nicaragua has ever granted a concession that goes to the north of the 15th parallel. Last
Thursday, Professor Remiro Brotóns conjured up wh at we thought was the rather novel idea of the
open-ended oil concession, the oil concession that has no limit. Professor Remiro Brotóns referred
to concessions with a northern limit that was “ouverte et indéfinie” 1. On our side of the table we
have been debating what the word “indéfinie” means, is it “indefinite” or is it “undefined”? Not
much turns on it, but it seems to us that the only thing that is open-ended and undefined or
indefinite in this case is Nicaragua’s capacity to conjure up new legal arguments. Everyone in this
room knows that there is no such thing as an open- ended oil concession. I will show that all of
Nicaragua’s concessions in the area in question ⎯ every single one of them ⎯ extends precisely to
the 15thparallel and no further north. The practice has been absolutely consistent.
Professor Remiro Brotóns also suggested that th ese concessions represented nothing more than the
actions of private oil companies. The truth is that all of the concessions ⎯ every single one of
them ⎯ were granted in the knowledge of the other Pa rty’s conduct. There is no evidence of any
reservation of rights, or of protest. And exactly the same may be said in relation to the fisheries
licences and concessions that have been granted. Honduras has introduced several licences, as well
as those documents known as bitácoras, that show the significance of the 15th parallel. Nicaragua
has introduced no documents. No le gislation. No licences. No bitácoras. Nicaragua has
introduced nothing to show the grant of any fishing rights beyond the 15thparallel, at any time,
ever; nothing in documentary form. How curious it is that a State that argues for rights north of
the 15th parallel has been unable to produce a single contemporaneous document over a period of
50 years in relation to that area.
4. The relevant documentary expressions of c onduct in the area north of the 15th parallel are
exclusively Honduran. The Court will have noted that, in its Memorial, Nicaragua made no
reference to oil concessions or fishing licences. The reason is now clear: they had, apparently,
none which could support their case. And none were introduced in the Reply. I want to be clear
1
CR 2007/4, p. 25, para. 38. - 12 -
also about the nature of our case on the law, whic h Professor Dupuy talked about yesterday, and I
simply refer to his arguments. It is not our assertion that concessions and oil wells and fishing
licences are in themselves to be considered as relevant circumstances justifying the adjustment or
shifting of a provisional delimitation line; it is not just that. Rather, as the Court put it in its
2002Judgment in the Cameroon v. Nigeria case, “the existence of an express or tacit agreement
between the parties on the siting of their respective oil concessions may indicate a consensus on the
maritime areas to which they are entitled” ( Land and Maritime Bounda ry between Cameroon and
Nigeria (Cameroon v. Nigeria), Judgment, I.C.J. Reports 2002, p. 447, para. 304). In that case, the
Court concluded that there was no consensus or tacit agreement. But the facts in that case ⎯ as
well as others like the Gulf of Maine case ⎯ were rather different from this one. In those cases
there was no example akin to the two Coco Mari na oil concessions that were granted north and
south of the 15thparallel, respectivel y by Honduras and Nicaragua. And in Tunisia/Libyan Arab
Jamahiriya, the mutual practice that was referred to by the Parties was rather shorter in time and
not quite as consistent. These concessions, north and south of the 15th parallel, reflect a geological
reality that straddled ⎯ in the case of Coco Marina ⎯ the consensually recognized boundary
across the 15thparallel. To take the words of this Court, they “indicate a consensus” and
2
Nicaragua has been notably defensive about Coco Marina in its written pleadings .
II. Oil concessions
5. So, let me turn to the oil concessions. The concessions reflect a perfect agreement
between the Parties as to the location of their northern and southern oil concession boundaries.
Professor Remiro Brotóns showed you seven plates during his presentation last week . Every one
of them was prepared for the purposes of this oral hearing; none of them was contemporaneous.
(Figure 1) On the screen you can see one example; it is ARB2/2, and it shows, in blue, the
apparent concessions for Union II, Union III and Un ion IV. On this graphic, no northern limit is
shown to any of these concessions. The message it seeks to convey is that Nicaragua granted
concessions that went to the north of the 15th parallel ⎯ we have added a red line showing where
2
See RN, para. 5.26.
3Nicaragua, judges’ folder, 8 March 2007, plates ARB2/1-ARB2/7. - 13 -
the 15thparallel is located ⎯ or perhaps could have gone to the north of the 15thparallel.
PlateARB2/2, like each of the other six plates that Professor Remiro Brotóns and some of his
colleagues put up, is manifestly inaccurate. It is not an accurate representation of the facts or of the
evidence that is before the Court. What counsel for Nicaragua did not do was take you to the plates
which the Government of Nicaragua itself had prepared before this case came to Court, before the
Application was filed. And they tell a rather different story.
6. On the screen now (figure2) you can see a graphic entitled Mapa de Concesiones
Petroleras (RH, plate 32). This was prepared in March 1969, not by Honduras, not by any counsel,
not by a private company but by the Directorate General of Natural Resources of the Nicaraguan
Ministry of Economy, Industry and Commerce. It is an official map, it is authoritative map, it is an
expression of public authority. What does it show ? The concessions for Union II, III and IV
followed the 15th parallel. It does not show ope n-ended concessions. You cannot get much more
authoritative than this.
7. And now on the screen (figure3) is an extract from a report published by another
Nicaraguan governmental body, the Instituto Nicar agüense de Energía, published in June 1994 4 ⎯
25years later. The Instituto is a public body th at regulates and supervises the energy sector in
Nicaragua. This report shows the oil concessions th at were available as at 1986. And, once again,
you will see that the northern limit follows the 15th parallel boundary, as it did 25 years earlier, in
1969; it does not show any extension north of th e 15thparallel or any availability north of the
15th parallel ⎯ or any reservation of rights to be permitted to go north of the 15th parallel. There
are no open-ended concessions here. And you will see, in close up, the Coco Marina area is very
clearly marked. It goes north and south of the 15th parallel, but there is no suggestion that the area
to the north is available.
8. Now on the screen (figure 4) you see an extr act from the report published by the Instituto
5
Nicaragüense de Energía in June 1995 . It is the following year but it shows the oil concessions
available in 1995 ⎯ the year of publication. The colours have changed, but the line has not.
Curious indeed that, as recently as 1995, a State that believes it has sovereignty over the islands
4
RH, plate 33, p. 1.
5RH, plate 33p 2. - 14 -
north of the 15thparallel and s overeign rights over the appurtena nt maritime spaces, should not
have offered any oil concessions in those areas, or indicated its sovereignty over those areas, or
indicated that those areas were in dispute or s ubject to any reservations. The Nicaraguan practice
in 1995 was as it was in 1969. You have got befo re you evidence of three decades of consistent
practice.
9. Why were you not shown these plates by the Nicaraguan counsel, prepared by the
Government of Nicaragua itself? We respectfully suggest that the question admits of only one
possible answer.
10. It is appropriate to look in a little more detail now at the concessions. I am going to try
to proceed systematically and fairly. First, we will look at the concessions granted by Honduras,
which treat the 15thparallel as the southern boundary. Second, we will consider the concessions
granted by Nicaragua, which treat the 15th parallel as the northern boundary. Third, we will look
at the concessions that have been granted in as sociation, jointly or collaboratively, by the two
Governments, where a potential oil and gas field stra ddles the 15th parallel. It is very difficult to
conceive of many governmental acts that could be more indicative of agreement as to the location
of a maritime boundary than the simultaneous gran t of public concessions for an oil field which
straddles the 15th parallel.
11. Let us begin with the area to the north of the 15thparallel. In 1955 Honduras initiated
the process of granting oil concessions in that area. By 1980 no less than 21 concessions had been
granted: it is quite a lot of concessions . Each has been identified in Honduras’s
6
Counter-Memorial . A copy of each concession has been made available to the Court and to
Nicaragua. There is no evidence before the Court to show that Nicaragua has ever objected to any
of these 21concessions. Information on each and every one was published in Honduras’s
La Gaceta, the official journal. All the relevant information has long been in the public domain. In
its written pleadings Nicaragua did not claim that it was unaware of the concessions. Now it seems
to have changed direction. Again. Professor Remiro Brotóns claimed that Nicaragua could not
7
have known of all of these concessions . With great respect, that is a most surprising suggestion,
6
CMH, paras. 6.24 to 6.28 and related annexes.
7CR 2007/4, p. 34, paras. 76-77. - 15 -
and one that is not supported by any evidence. The information was publicly available. We may
recall that in its Judgment of 1951 in the Fisheries case this Court rejected the argument by the
United Kingdom Government that the Norwegian sy stem of delimitation was not known to it. The
Court noted that the United Kingdom was a maritime power, a coastal State on the relevant sea ⎯
the North Sea ⎯ greatly interested in the fisheries in the area in question. “[T]he United Kingdom
could not have been ignorant of the [Norwegian] Decree of 1869”, the Court ruled. “Nor, knowing
of it,” added the Court, “could it have been under any misapprehension as to the significance of its
terms” ( Fisheries (United Kingdom v. Norway), Judgment , I.C.J. Reports 1951 , p.139) ⎯ no
misapprehension as to the significance of its terms. We say, Nicaragua could not have been
ignorant of the oil concessions or under any misappreh ensions as to their terms, especially over so
long a period of time as pertains in this case.
12. Nicaragua has failed to explain its argument as to lack of knowledge. Counsel for
Nicaragua referred to a passage in this Court’s Judgment in the Pulau Ligitan and Pulau Sipadan
8
case, at paragraph 48 . But that passage does not assist Nicar agua. In that case Indonesia argued
that a map attached to an Explanatory Memorandu m that had been sent by the Dutch to the British
was part of an agreement within the meaning of the 1969 Vienna Convention on the Law of
Treaties, and, very understandably, the Court did not buy that argument. In this case that is not the
argument we are making. We simply say, that ov er a very lengthy period of time, after Nicaragua
had implemented the 1960 Judgment of this Cour t, Honduras adopted a pattern of behaviour in
respect of which Nicaragua had knowledge but to which it did not object. Coupled with
Nicaragua’s own practice in relation to oil con cessions, its silence can only be taken as expressing
consent to Honduras’s actions. Such silence reflect s, at the very least, a tacit agreement to which
Nicaragua has lent its active support or to wh ich it has acquiesced. Our argument goes no further
than that.
13. What has Nicaragua tacitly agreed to? You can see that graphically illustrated on the
screen (figure5). That is a larg e version of plate 11 of the Honduran Counter-Memorial. That
plate shows the concessions, all of them which have been granted since 1955. It is taken from a
8
CR 2007/4, p. 33, para., 75. - 16 -
chart originally produced in 1977 by an organiza tion called Petroconsultants, taking into account
the official petroleum concession map of Honduras. The plate identifies blocks in three categories.
First, in light green, are blocks that are held in national reserve; second, in darker green, are blocks
that are free; and third, in purple, are those blocks in use.
The PRESIDENT: Mr. Sands, could you help us identify this map, or chart, in our files? It
may be that we do not have it.
Mr. SANDS: It ought to be chart No.5. I apologize. It should be marked on the bottom
right-hand corner ⎯chart No. 5 (PS2-5).
The PRESIDENT: This, now the one behind you is 5 ⎯ something else was previously
showing. Do you want to start the section again and then we will follow you better?
Mr. SANDS: Thank you very much. The first map that I had shown was in fact the overall
picture and this focuses in on the area that is in question. What you can see on this map, which
dates back to 1977, is concessions in three categori es of colour. In light green, blocks which are
held in national reserve, in dark er green, blocks which are free ⎯ have not yet been awarded ⎯
and, in purple, blocks which are in use. And the blocks which are in use, as well as the blocks in
national reserve, follow precisely the 15th parallel. The map shows clearly that Honduras’s islands
fall within some of those blocks, as I explained y esterday. And this confirms, we say, Honduras’s
sovereign intent and actions over those islands . Nicaragua has never objected to Honduras’s
concessions. It did not reserve its rights in rela tion to these concessions. It did not object to the
concessions that included the insular territory of PalodeCampeche, as well as the other islands
located north of the 15th parallel, to which the Constitution of 1957 explicitly referred as belonging
to Honduras.
14. These Honduran concessions were granted on the basis that the 15thparallel was the
southern boundary in the sea. Honduras’s concessions explicitly refer to the line of 14º 59' 08" as - 17 -
9
the southern limit of the concession . ProfessorRemiro Brotóns told the Court that none of the
concessions that refer to that limit “ne précisai ent une quelconque relation avec la frontière
10
maritime des Parties” . Now I cannot have misheard him, because he said it not once but twice:
“aucune des concessions honduriennes ne précise que sa limite sud coïncide avec la frontière
maritime avec le Nicaragua” 1. And the distinguished Agent of Nicaragua said the same thing:
“The Honduran concessions... had no indication that their southern limit coincided with the
maritime limit with Nicaragua.” 12 These statements, I am afraid, are factually wrong. On the
screen is one example of a Honduran concession that expressly refers to the 15thparallel as the
southern limit and boundary with Nicaragua (figure 6) 13. It concerns the 1967 concession granted
by Honduras to the “Pure Oil Company of Hondur as, Inc.” –– it is the Coco Marina concession ––
to explore and exploit oil in lot or block8, th at is the area that comprises the islands. It was
published in La Gaceta of Honduras on 17April1967. And I want to read out the relevant
extracts, and you can then follow the lines of the concession on the map that is projected. This is of
course the Coco Marina block, and I am going to read from the text:
“then to the East to meridian 82º10'W est longitude; then to the South until the
maritime border between Honduras and Nicaragua; then to the West following that
borderline until it intersects with the coast in the estuary of RiverWansCoco or
Segovia which is the natural limit betw een Honduras and Nicaragua, and from the
point we follow the coastline setting a northw est direction of 83º10'West longitude
which is the original starting point of this lot. The area of this block encompasses a
total of TWO HUNDRED AND FIFTEEN THOUSAND AND FOUR POINT NINE
HECTARES (215,004.9).”
So you have got a concession that refers no less than threetimes to the border between the two
countries. And we invite the Court to read all of the primary material with great care, as we know
9Certification of Decree Concerning an Oil Concessi on granted to “Pure Oil Company of Honduras, Inc.”,
published in the official gazette of H onduras No. 19.140 of 17 April 1967, CMH, Vol. 2, Ann. 192. See also extensions
thereof at CMH, Vol.2, Anns.197 and 200. Certification of Decree Concerning an Oil Concession granted to “Signal
Exploration (Honduras) Company”, publis hed in the official gazette of H onduras No.19.111 of 9March1967, CMH,
Vol. 2, Ann. 108 (parallel 15º00); Certification of Decr ee Concerning an Oil Concession granted to “Texaco Caribbean,
Inc.”, published in the official gazette of Honduras No.23.233 of 17October1980, CMH, Vol.2, Ann.114
(parallel 15º00); Certification of D ecree Concerning an Oil Concession granted to “Lloyd Honduras, Inc.”, published in
the official gazette of Honduras No. 19.668 of 11 January 1969, CMH, Vol. 2, Ann. 194 (parallel 15º00); Certification of
Decree Concerning an Oil Concession granted to “Texaco Cari bbean, Inc.”, published in the official gazette of Honduras
No. 22.313 of 4 October 1977, CMH, Vol. 2, Ann. 201 (parallel 15º00).
10
CR 2007/4, p. 34, para. 78.
11
Ibid., p. 27, para. 48.
12CR 2007/1, (figure 6) p. 42, para. 94 (B).
13See another example of such a concession in CMH, Vol. 2, Ann. 107. - 18 -
it always does, and to form its own view on these concessions. Now we appreciate that this is a
very laborious and time-consuming task, but it is a necessary and important one in proceedings
such as these.
15. Nicaragua has adopted a similar approach in its treatment of witness statements. Counsel
14
explained that Nicaragua “a renoncé à se la ncer dans un concours d’affidavits” . Well, that is
Nicaragua’s right. But the witness statements are evidence before the Court, they have been sworn
on oath, and they have not been contradicted by evidence from Nicaragua. So all the witness
statements stand, as uncontradicted evidence. Let me take one example. The witness statement of
15
Mr.Rafael Leonardo Callejas Romero, at Annex247 . He is not just another person, as counsel
for Nicaragua described him 16. From 1972 to 1980 he was Under Secretary of State and Secretary
of State in the Honduran Ministry of Natural Resources, precisely in the period of time when the oil
concessions were granted. And he then went on to become President of Honduras. As he said in
his statement, the oil concessions were granted against the background of what he understood to be
a mutual understanding of Honduras and Nicaragua, th at the 15thparallel was the location of the
maritime boundary between the two States. Now that is compelling evidence. It stands
unchallenged before this Court. Has Nicaragua put any witness statement from its own Minister at
the time to contradict the statement of Mr. Callejas Romero? It has not.
16. What about Nicaragua’s concessions? The Memorial maintained a conspicuous silence.
A reader of that document would have been blissf ully unaware that any oil activity had ever taken
place south of the 15thparallel, would also have been unaware that there had been any fisheries
activities south of the 15thparallel or indeed an y other activity apart from what paragraph15 of
Chapter II of the Memorial referred to as traditiona l activities of Sambo Miskito Indians. And that
silence resonates. The fact is Nicaragua has ne ver granted an oil concession in any area north of
the 15thparallel, and it has never sought it. It makes no claim that it has ever done so. No
evidence before the Court from Nicaragua to show that it ever treated any area north of the
14
CR 2007/4, p. 35, para. 81.
15
RH, Vol. 2, Ann. 247.
1CR 2007/4, p. 35, para. 80. - 19 -
15th parallel as one in which it was even entitled to grant any oil concessions. The two reports of
the Instituto Nicaragüense de Energía that I took you to makes that very clear . 17
17. So it fell to Honduras to introduce th e evidence on Nicaragua’s oil concessions. These
are depicted at plate 12 of the Honduras Counter-Memorial, which you can now see on your screen
in large scale. This plate shows the concessions granted by Nicaragua, and here you ought to have
a document that is PS2-7 (figure 7), granted by Nicar agua for the exploration or exploitation of oil
and gas within the territory of Nicaragua, in19 79, on the basis of another synopsis prepared by
Petroconsultants. In cream colour are concessions where petroleum rights have been granted; in
light orange are areas where replacement licences have been granted; in deeper orange are areas
where rights have been relinquished; and in pink are areas where applications were pending. Like
the earlier plate of 1969 produced by the Governme nt, to which I took you earlier, this plate
demonstrates clearly that Nicaragua never went north of the 15th parallel. You’ve got consistency:
69, 77, 86, 95. Nicaragua’s oil concessions are all located south of the 15thparallel. Nicaragua
has not challenged the accuracy of this plate. A nd we say it cannot do so: the evidence before the
Court is very clear.
18. These concessions apparently have given rise to a certain difficulty for Nicaragua’s
counsel. Several of the Nicaraguan concessions refer explicitly to the 15th parallel as the northern
limit18. And that has led their counsel to put togeth er what we thought were some quite interesting
arguments. Professor Remiro Brotóns told the Court that the references to the 15th parallel in the
Nicaraguan concessions (as well as those of Hondur as) “suggèrent que les dispositions concernant
19
ces concessions furent préparées dans les bureaux des entreprises concessionnaires” . Now, when
he said that I thought I might have misunderstood him, since he seemed to be saying that the
17
See RH, paras. 4.27-4.28. The reports of the Instituto Nicaragüense de Energía are at RH, Vol. 2, Ann. 255.
18See e.g. Certification of Decree Concerning an Oil Concession granted to “Western Caribbean Petroleum
Company”, official gazette of Nicaragua No.117 of 29 May 1967, CMH, Vol.2, Ann.203; Certification of Decree
Concerning an Oil Concession granted to “Western Caribbean Petroleum Company” and “Occidental of Nicaragua, Inc.”,
official gazette of Nicaragua No.161 of 18 July 1968, CM H, Vol.2, annexes 115-116; Certification of Decree
Concerning an Oil Concession granted to “Western Caribbean Petroleum Company” and “Occidental of Nicaragua, Inc.”,
official gazette of Nicaragua No.272 of 28 November 1974, CMH, Vol.2, Ann.117; Certification of Decree
Concerning an Oil Concession granted to “Mobil Exploration Corporation”, official gazet te of Nicaragua No.202 of
4 September 1968, CMH, Vol. 2, Ann. 202; Certification of Decree Concerning an Oil Concession granted to “Western
Caribbean Petroleum Company”, official gazette of Nicarag ua No.259 of 14 November 1975, CMH, Vol.2, Ann.206.
Some of these concessions were later extended.
19CR 2007/4, p. 27, para. 47. - 20 -
concession limits were not the responsibility of Nicara gua. But then he said that the oil companies
that had sought the concessions “pouvaient définir à discrétion les limites de l’aire prétendue là où
elles le considéraient opportun. . . . L’admini stration nicaraguayenne accorda donc les concessions
sollicitées.”20 Now, that truly is a remarkable statemen t. It seems to say that the oil companies
could act at will. The reality is rather differe nt, as the evidence shows. I refer you to the
1994Report of the Instituto Nicaragüense de Ener gía which makes clear how different the true
story is. That is Annex255 and at page6, it states: “All oil exploration activities in Nicaragua
from 1958 to 1981 were regulated by ‘The General Law on Exploration of Natural Resources’ and
21
‘The Special Law on Exploration and Exploitation of Petroleum’.” There is no indication that oil
companies are free to come to Nicaragua and ch oose where they want to put their concessions,
choose the co-ordinates themselves and even have open-ended oil concessions.
19. On your screen now (figure 8) is a copy of relevant passages in La Gaceta of Nicaragua,
of 4September1968, and that shows the gran t of the oil concession “Mobil Uno” to Mobil
22
Exploration Corporation in 1966 . This also deals with the Coco Marina area in part and it states:
“The description of the limits star ts on a point where parallel 14degrees
59minutes 8seconds latitude north intercepts with meridian 82 degrees 15 minutes
longitude west... From this point it continues eastwards along the parallel
14degrees 59 minutes 8 seconds latitude north for an approximate distance of
38kilometres up to its intersection with meridian 81 degrees 54 minutes longitude
west.”
And then it goes northwards. It takes the 15thpara llel as the northern limit. It was published in
La Gaceta and it was adopted as a presidential decree, you can go to the decree and trace the
decision-making process internally in the Government of Nicaragua. So there is no question that
the oil concession is anything but the exercise by the State of its sovereign authority. And that
includes the limits of the concession, and in this case the choice precisely of the 15th parallel. It is
an act of Nicaragua, a sovereign State, it is not an act of any other person.
20. Honduras submitted plenty of eviden ce on Nicaragua’s oil concessions in its
Counter-Memorial , and the evidence speaks fo r itself. Nicaragua’s oil concessions confirm tacit
20Ibid., p. 27, para. 50.
21
INE Report, June 1994, RH, Vol. 2, Ann. 255, p. 6.
22
CMH, Vol. 2, Ann. 202.
23See, e.g., CMH, paras. 6.27-6.28 and the related Anns. 115-118 and 202-215. - 21 -
agreement between the Parties, peacefully applied as such for approaching two decades, until 1979
when Nicaragua saw fit to unilaterally change its practice. But it did then proceed to treat the
15thparallel as the basis for oil concessions, as th e 1994 and 1995 reports show. By the time it
unilaterally changed direction, 18 concessions had been granted by Nicaragua, so you have in total
39 concessions. Of the 18 concessions granted by Nicaragua in the area in question, nine explicitly
referred to the 15th parallel as the northern limit: si x of those were original concessions and three
were renewals of original concessions. In its pleadings, and again last week, Nicaragua has
provided no explanation as to why that line was chosen, other than as the northern limit of the
concessions if it was not considered to be the northern limit of the maritime boundary. All of the
concessions were approved by Nicaraguan presidential decrees and duly published in La Gaceta ⎯
that is how we were able to get hold of them . As late as 1976 Nicaragua was still granting
concessions and renewing existing concessions th at explicitly delimited by reference to
24
parallel 15 .
21. Of the nine Nicaraguan decrees that do not refer explicitly to the 15thparallel, five are
extensions or renewals of earlier concessions that did. So you are left with just four, out of the 18,
which do not refer explicitly to the 15thparallel. ProfessorRemiro Brotóns told you that these
concessions had northern limits which were “ouverte et indéfinie” 25, and, with respect, that is not
correct. No oil company would enter into a concession for an area which was not precisely
defined. We all like and want certainty, but oil companies have to have certainty when they are
investing very large sums of money on projects such as these. So, the four concessions did provide
for limits: and they did so in the form of acr eages. The four concessions are: the concession
granted to Pure Oil in 1968 for bloc ks PureII, PureIII and PureIV 26; the concession granted to
Union Oil in 1972 for blocks Un ionII, UnionIII and UnionIV ⎯ of the same extension as the
Pure Oil concessions 27; the concession granted to Union Oil in 1974 for block Union V 2, and the
24
Resolution concerning renewal of pe troleum concession to “Western Caribbean Petroleum Company” and to
“Occidental of Nicaragua, Inc.”, official gazette of Nicaragua No. 140 of 23 June 1976, CMH, Vol. 2, Ann. 205.
25
CR 2007/4, p. 25, para. 38.
26
CMH,Vol. 2, Ann. 207.
27Ibid., Ann. 208.
28Ibid.,Vol. 2, Ann. 210. - 22 -
concession granted to Union Oil in 1975 for block Union VI . In each case the presidential decree
specified precisely and publicly the acreage of th e concession. So it is therefore very easy to
calculate the limits and we did so in the Rejoinder 30. You can see the result at plate34 of the
Rejoinder, which will come up on the screen. Plate 34A (figure9) shows UnionIII, it is there in
yellow, marked I, II, III and IV, and it has an acr eage of 192,800hectares. The northern limit is
precisely at the 15thparallel. Plate 34B (figure10) shows UnionIV, with an acreage of
192,800 hectares. The northern limit is at the 15th parallel. Plate 34C (figure 11), Union V, has an
acreage of 65,500hectares. The northern limit is the 15thparallel. And plate34D (figure12)
shows UnionVI, with an acreage of 350,000hectares, and, again, the northern limit is at the
15thparallel. The next plate 34E (figure13) is a composite and it shows you all the concessions
combined. So you can see on the right-hand side that UnionIII and IV go slightly further north
than Union V and VI, but that is only because they did not pick up the error that was made by the
Commission in 1962 and to which Nicaragua referred last week. Now, we wanted to test the
accuracy of our own calculations to make sure that they were correct, and we did that by comparing
our calculations, which you have just seen, with t hose of the Nicaraguan Government itself, in the
1969 Mapa de Concesiones Petroleras , which I showed at the beginning and which you can now
see on the screen in front of you (figure 14). On th at 1969 map you can also see that Union V and
VI do not go quite as far north up to the 15t hparallel. And so we have compared, by
superimposing, the 1969 map with our own calculations, and what you can see when the two plates
are superimposed on top of each other (figure 15) is that they are identical in result. Now compare
that with what ProfessorRemiro Brotóns showed you last week: you will see the concessions of
the 1969map and plate34E as Nicaragua depicted them last Thursday: ) that is plateARB2/4
(figure 16). That is rather different from what act ually happened. The claim that Union II, III and
IV somehow migrated north, or could migrate north, is the figment of a fertile imagination. And
we trust the Court will base its decision on evidence, and not on anything else.
22. Lest there be any doubt as to th e consistent practice of the two States ⎯ and it really is
very difficult to see how there could be ⎯ nature has provided its own assistance in the form of a
29
Ibid.,Vol. 2, Ann. 211.
3RH, paras. 4.31 et seq. - 23 -
possible oil deposit which appears to straddle the 15th parallel. This deposit is known as the Coco
Marina Oil Field. I am now putting up on the screen plate35 (figure17) of the Honduran
Rejoinder, which shows the location of Coco Marina ⎯ and you can see also its very limited
distance from Bobel Cay, 5.735nautical miles. No w the oilfield here was jointly authorized by
Nicaragua and Honduras for exploration, in a pr oject that was known as Operación Conjunta Coco
Marina. Two concessions were granted. One was granted by Honduras ⎯ block 8 ⎯ to the Union
Oil Company of Honduras, to the north 31. The other was granted by Nicaragua ⎯ and this is
known as UnionIII ⎯ to a sister corporation, the Union Oil company of Central America, to the
south. This joint initiative was proposed privately by both corporations, but of course it required
governmental approval. And that is what it got from the two Governments ⎯ the Government of
Honduras and the Government of Nicaragua appr oved it. Operational expenses were shared
equally between the Parties.
23. A well was drilled in 1969 on the Honduran side at a point located at 15ºN,
82°43'30"W, but for the purpose of exploring both concessions. The Union Oil Company of
Honduras reported to the Honduran Ministry of Natu ral Resources the precise location of the well.
It indicated that this location was conditioned by seismic studies which had been carried out. In its
report the Union Oil Company of Honduras stated expressly that the points picked out for the
drilling of the oil well were set at the chosen lo cation “to explore the common structure that was
32
defined with the seismic survey and covers concession areas in Honduras and Nicaragua ” : I
emphasize ⎯ concession areas in Honduras and Nicaragua ⎯ I make that emphasis. The
Honduran Government issued an opinion on the ma tter, confirming that the maritime boundary
with Nicaragua was at 14° 59'8", and that all concessions granted by Honduras reached this limit
and the information concerning activities north of this boundary had to be reported exclusively to
the Honduran Government 33. And we do not have the material that would, presumably, have
flowed from the Nicaraguan side of the operation. It was for Nicaragua to put that material in, we
do not have access to that, it has not been put before the Court. But, clearly, the Coco Marina Joint
31
See CMH, para.6.28 and RH, para. 5.13 with the corres ponding Annexes. See concessions to Pure Oil and to
Union Oil in CMH, Vol. 2, Anns. 207-208.
32
See CMH, Vol. 2, Ann. 110.
3See Opinion of the Interstate Study Commission (undated), CMH, Vol. 2, Ann. 109. - 24 -
Operation confirms a tacit agreement, and perhaps it confirms more than that. I am not aware of an
analogous arrangement in any case that has come before this Court, showing so precise acts of
convergence over so extended a period of time. If Coco Marina did not reflect a tacit agreement
then it is very difficult to see what would. The jo int arrangement destroys in our view Nicaragua’s
opposition to Honduras’s sovereignty or sovereign rights in the area north of the 15th parallel.
24. Now, Nicaragua has not challenged this evidence, with any evidence of its own; it’s hard
to see how it could. So what did counsel for Nicarag ua have to say about it? Well, counsel said, if
it was a joint enterprise, “c’est d’un projet conjoint des filiales de l’Union Oil, et non du Nicaragua
et du Honduras” 34. Again, we think that is a curious reading of the concessions granted on either
side of the 15thparallel by the two States. So Nicaragua goes beyond that and takes refuge in
attacking the quality of our evidence, but it introdu ces none of its own. It focuses its attention for
example on the opinion I just referred to ⎯ the opinion by the Honduran Interstate Study
Commission. It is undated; we accept that, but it explicitly refers to the Coco Marina project. It
was introduced as Annex 109 to the Counter-Memorial and it speaks for itself. It confirms clearly
that Honduras considered the 15thparallel as “t he maritime boundary with the Republic of
Honduras”, and advised that the concessions grante d by Honduras to the Union Oil Company of
Honduras “should reach up to that limit in the bo rdering maritime zone, in order that none
intermediate zone is left between that limit and the limit fixed for the granting of concessions by
35
the Nicaraguan Government” . That is precisely what happened; Nicaragua did grant a
concession up to that parallel. And then the opinion added: “Any drilling carried out by the Union
Oil Company of Honduras . . . North of the parallel . . . must be solely notified to the Government
of Honduras.” And that is precisely what happened. Madam President, Members of the Court, if
Nicaragua had any documentary evidence to cont radict this document one assumes that it would
have been introduced as evidence. But nothing has been introduced as evidence.
25. There is one further aspect that has to be mentioned. These activities relating to
CocoMarina were very closely associated with the islands. As you will recall, I mentioned on
Tuesday that it was this very same Union Oil Company of Honduras that contributed to the
34
CR 2007/4, p. 30, para. 58.
3See opinion of the Interstate Study Commission (undated), CMH, Vol. 2, Ann. 109. - 25 -
construction of the antenna on Bobel Cay. And you saw contemporane ous documents of 1975
explaining that. Bobel Cay is less than 6 nautical miles from the Coco Marina oil concession. That
insular territory was used to assist in exploration activities. The evidence is irrefutable. In this way
the activities associated with oil exploration on the Honduran side are very closely connected with
Honduran sovereignty over the islands.
26. Madam President, I will conclude on oil concessions. The concessions granted by
Nicaragua and Honduras are not tainted by any ambiguity or doubt whatsoever. On the screen
(figure18) is projected plate13 of the Counter-Memorial. It is a composite plate, showing all
Honduran and Nicaraguan oil concessions as at 197 9 and 1977 respectively, taking the erroneous
critical date of 1977 as a base for one of them. I would not say that it is as good as a painting by
PietMondrian, but the precision of the lines is very striking, especially along the 15thparallel,
which we show in red. There are no exceptions. Nicaragua has never gone north of the
15th parallel; it has never sought to do so; it has never reserved its right to do so.
III. Fisheries
27. I turn now to the second indicator of Honduran activity around the islands and in the
maritime areas that confirm that the 15thpara llel was treated by both States as the maritime
boundary. That is the conduct relating to fisheri es. Professor Dupuy has already set out the legal
criteria that are relevant for taking into account these activities.
28. You can see the Honduran fishing zones on the screen (figure 19). Gorda Bank ⎯ which
is the circled light blue, bottom cente r light blue, circular construction ⎯ is located just to the
north-east of the islands over which Honduras has s overeignty. The southernmost area of Gorda
Bank is about 40 miles from Palo de Campeche and Savanna Cay, respectively.
29. As Honduras explained in the written pleadings 3, for over 60years third States and
international organizations have recognized the fishing area immediately to the north of the
15thparallel and around the cays as falling within th e jurisdiction of Honduras. For example, a
1943 report by the Fish and Wildlife Service of the United States Department of the Interior
36
See for example CMH, paras. 6.29 et seq. and its related annexes. - 26 -
addressed the fishery resources of Honduras 37. It described the potential fishing area in the
Caribbean coast of Honduras. Nicaragua complains that it does not mention the islands in issue.
Well, that is true, it was dealing with fisheries. So it mentions the banks. And this is what it says:
“They include Gorda Bank, Rosalind Bank, Serra nilla Bank, Thunder Knoll and others.”
(Figure 20.) That is a 1943 document, treating the area in question as part of Honduras.
30. In 1971 the United Nations and the Food and Agriculture Organization (FAO) published
a biological study of crustaceans in the Western Caribbean. The study was based on scientific
research cruises ⎯ three in Honduras and one in Nicaragua. The 1971study states that the
Honduran research included areas between 15º 00' N a nd 16º 00' N; the research in Nicaragua was
38
undertaken in areas between 13º 50' N and 14º 15' N, well south of the 15th parallel . In the 1980s
the FAO, in collaboration with the Unite d Nations Development Programme and the
Inter-American Development Bank supported further fisheries studies in Honduras, including right
in the very area now claimed by Nicaragua. These studies were initiated by a proposal from the
Honduran Government, which sought financial assist ance to examine the poten tial for fisheries in
the northern area of Honduras, including specifically around the fisheries banks of Rosalinda and
Thunder Knoll, as well as the Media Luna reefs ⎯ Half-Moon reefs ⎯ which were expressly
39
mentioned in the document .
31. The evidence of Honduran fisheries authority in the area to the north of the 15th parallel
even at this stage ⎯ 1943, 1971, early 1980s ⎯ is rather compelling and there is none from
Nicaragua that goes the other way: Honduras has authorized fisheries activities in the waters down
to the 15thparallel without protest or objection from Nicaragua. It has provided documentary
evidence in support of that, some of it predating Nicaragua’s artificial critical date of May1977.
Honduras’s evidence in cludes licences and bitácoras, and it also includes numerous witness
statements. We say, it is simply not good enou gh for Nicaragua to criticize the testimony of
37
CMH, Vol. 2, Ann. 162.
38
“Exploratory and Simulated Commercial Fishing Operations in the Wester n Caribbean Sea. R/V ‘Canopus’,
May to November 1970” by Marcel Giudicelli, CCDO-FAO-UNDP, San Salvador 1971, CMH, Vol. 2, Ann. 163.
3CMH, Vol. 2, Ann. 161. - 27 -
40
fishermen on the grounds that it is “highly selected” . The distinguished Agent of Nicaragua and
his counsel have provided no evidence to support that charge.
32. There was no basis either for the distingui shed Agent’s claim that “[a]ll of the activities
that refer to the areas in question, as an identifiable area, occur[red] after 1977” 4. Or for his claim
that all the material filed as evidence by Honduras in relation to fisheries referred to “activities
occurring for the first time after” Nicaragua’s critical date. Or to the claim that the evidence “has
42
no clear reference to any specifically identifiable maritime area” . Yet again those assertions are
simply not true, on the basis of the evidence that is before this Court. The document now on the
screen (figure21) shows that. This is a resolution from the Honduran Ministry of Natural
Resources to a Honduran fishing company that extends for one year ⎯ and I emphasize the word
extends ⎯ a provisional fisheries licence that was or iginally granted on 16 December 1974. This
resolution is dated 7 January 1977 ⎯ well before Nicaragua’s erroneous critical date. At Clause 6
it defines the limits of the fishing area. It does so by specific co-ordinates. For the avoidance of all
doubt I want to read out the co-ordinates, so that I am not accused of reading the document
selectively. This is what it says:
“From 154 °4' orth Latitude, 88w° est longitude, From 855 °7W' est
Longitude, 18°01'North Latitude. From 84º02'West Longitude, 18º58'North
Latitude. From 80°38W ' est Longitude , 16°30' orth Latitude, 79°51W' est43
Longitude, 15° North Latitude. From 83° 09' Longitude, 15° North Latitude.”
And please note the signature of the person who signed the resolution: it is the same
Mr.RafaelLeonardoCallejas who was Under-Secretary of State and Secretary of State in the
Honduran Ministry of Natural Resources and w ho provided the witness statement to which I
referred earlier. So, this is contemporaneous documentary evidence corroborating his witness
statement as to the use of the 15° parallel as the southern boundary. And you may well now ask,
where on earth is this limit? So, hopefully, depi cted on the screen right now is the fisheries limit
that that resolution adopts (figure 22), and you will see that it runs ⎯ the southernmost part of it ⎯
precisely along the 15thparallel. It includes all the islands and reefs that are now in issue. It is
4CR 2007/1, p. 41, para. 90 (i).
41
CR 2007/1, p. 35, para. 66.
42
CR 2007/1, p. 34, para. 65.
4This is a corrected translation of the co-ordinates of the fisheries concession set out in Ann. 258. - 28 -
January 1977, extending a resolution previously adopted in 1974. So, with very great respect,
when Nicaragua says there is no evidence of fisher ies licences that predates its critical date and
specifically refers to the area in question, that is simply wrong.
33. Can Nicaragua show us any equivalent document that it has issued in an area north of the
15th parallel? Apparently, it cannot. Nicar agua has put no contemporaneous evidence ⎯ none ⎯
before the Court to demonstrate that it has ever a pplied or enforced its fisheries laws in areas north
of the 15thparallel, and I emphasize the word contemporaneous documents. If Nicaragua had
granted any licences to the north of the 15thparallel, why has she not put them before the Court ?
There is only one inference to be drawn, and that is that none were issued.
34. The fact is there has been a consistent and longstanding practice of Honduras in granting
licences and issuing bitácoras in this area. This is confirmed by documentary evidence, by witness
statements that are in evidence before the Court, and by recognition of third States and international
organizations.
35. There is one document in which Nicaragua di d try to go north of the 15th parallel and it
provides evidence that Nicaragua was persuaded to recognize that the 15th parallel was indeed the
northern limit of its fisheries boundary. On 17November 1986, well after the critical date that
Nicaragua has chosen, the Nicaraguan Fisheries Authorities (INPESCA) granted a lobster fishing
permit to a Mr. Ramon Sánchez Borba. It extended to the north of the 15th parallel 44. It was not
published, but when it came to the attention of th e Honduran authorities, they reacted very firmly
and at the highest levels of government. On 20 March 1987, the Minister for Foreign Affairs, no
less, of Honduras sent a protest Note to his counterpart, and you can see that projected on the
screen (figure 23). Paragraph3 of the protest Note read s as follows: “The above-mentioned
contract goes against the traditional maritime border existing between Honduras and Nicaragua,
established at parallel 14º56'09".” 45 That is an error that has obviously fallen into the letter.
Nicaragua’s reaction? It did not object. It did not enter a reservation of rights. What did it do? It
amended the contract. By an act on 7 April 1987, INPESCA amended the contract. You can see
that on the screen (figure 24). Clause 6 of the amendm ent to the contract changes the fishing area.
44
RH, para. 5.37.
4See CMH, Vol. 2, Ann. 123. - 29 -
Clause6 says: “The fishing area for each fishi ng boat shall be determined by INPESCA in areas
south of parallel15.” That is rather clear ev idence and the Court will note that nowhere did
Nicaragua reserve its rights. Is there any equi valent objection in writing by Nicaragua to any
sovereign act of Honduras north of the 15th parallel in relation to licences issued? It appears there
is none.
36. I really do apologize, Madam President, for descending into such mind-numbing detail,
but we are really concerned that the Court should be directed to specific evidence so that it can see
for itself what the evidence actually says, not what Nicaragua claims that it says. Nicaragua has no
evidence of its own, so its strategy seems to be to raise a smokescreen of concerns about the quality
and substance of Honduras’s evidence. Once we go into the detail, into the minutiae, it becomes
apparent, we say, that Honduras has presented evid ence and done so in a fair and balanced way.
We respectfully submit that we have not gone beyond what the evidence will sustain. We
appreciate the limitations of the exercise for both States ⎯ developing countries that perhaps do
not have the best record-keeping systems that all States may wish to have. But given the
inhospitable nature of the area in question we say that it is abundantly clear that the evidence
before the Court is compellingly in favour of Honduras’s argument.
37. There is another technique that is used by Nicaragua in relation to the witness statements,
and that is the technique of mockery. ProfessorRemiro Brotóns referred to the statement of
Mr. Santos Calderón Morales, noting his stupefaction that Mr. Calderón should have been aware of
this Court’s Judgment of 1960 46. Well, it is true that Mr.Calderón is not a professor of
international law, but surely that cannot be held against him. In 1978, he was the Mayor of the
municipality of RamonVilleda Morales, in Cape Gracias a Dios, so he does know a thing or two
about the fisheries communities that work in the area and about land disputes. And it is not
surprising at all that he should know about the Court’s Judgment of 1960, or the Arbitral Award of
1906. Anyone who has been to that area will co me to understand the significance of the Award
and of the Court’s Judgment enforcing it. The Court’s Judgment of 1960 caused Nicaragua to
leave great areas of land territory. Many of this Court’s judgments are very well known in the
46
CR 2007/4, p. 41, para. 102. - 30 -
areas they affect. Another Judgment, after all, of th is Court dating back to the 1980s, is still rather
well known in Nicaragua. I remember many y ears ago reading a book by the British author
Salman Rushdie, published in 1989; it was called The Jaguar Smile. The subtitle is A Nicaraguan
47
Journey . And I was struck by the numerous passages in that book which referred to the
resonance of this Court’s Judgment in the 1980s to people in Nicaragua. That book described very
clearly how judgments of this Court can and do permeate public consciousness in very important
ways. And that is a reflection of the Court’s authority.
38. Counsel for Nicaragua was equally scathi ng about the statement of DanielSantos
Solabarrieta Armayo. He attested to the fact that he had fished in the waters around the cays
48
between 1958 and 1974, under licences gr anted by the Honduran authorities . Mr. Armayo gave
his statement in Guanaja in July 2001, when he was in his eighties ⎯ he was an elderly man. What
could justify such harsh words from counsel for Ni caragua in the absence of any evidence at all?
He and many others were based in Guanaja. They would take very lengthy fisheries expeditions to
fish around the islands, including Savanna, Bobel a nd Media Luna. Anyone who troubles to read
all of his statement will see that he is an educated man. He was born in Spain, he studied in France
and he went to Honduras as a political refugee. His evidence has not been challenged by
Nicaragua. On rereading his statement, which I did after I listened to Nicaragua ⎯ it is at
Annex 82 ⎯ it struck me that there was nothing in it that would suggest that it was anything other
than that of a balanced and honest individual. It attested that when he visited the cays 40 or so
years ago they were not then occupied by anyone. If he had been manipulated in some way, why
would he have said that? If we were being selec tive in our choice, why would we have included
his statement in our presentation of witness statements? The evidence is unchallenged ⎯ the man
says he fished pursuant to licences ⎯ and that is clear, Honduras stands by it. In the absence of
evidence to the contrary there is no reason to doubt his integrity. Mockery, MadamPresident, is
not a substitute for hard evidence.
47
Salman Rushdie, The Jaguar Smile: A Nicaraguan Journey, Picador; reprint ed. (1 Sept. 2003).
4CR 2007/4, p. 42, para. 105; CMH, Vol. 2, Ann. 82. - 31 -
39. The fishing area in question is depicted at plate14 of Honduras’s Counter-Memorial
(figure 25). This is the area over which Honduran fisheries conservation laws apply 49. Witness
statements and other evidence show that Honduras h as regulated fisheries activities in the area for
several decades. Those statements are consiste nt with the terms of Honduras’s Constitution of
1957, which expressly mentioned one cay in the area ⎯ Palo de Campeche ⎯ as being part of
50
Honduras. and fishermen attesting to Honduran regulation . All but four refer to the role of the
cays in sustaining Honduran authorized fisheries activities. In its Rejoinder Nicaragua ignored
most of these witness statements, which have gone unchallenged. These powerful testimonies
confirm Honduras’ longstanding regulatory role in respect of fisheries around the islands and in the
waters up to the 15thparallel. The Court befo re it has no less than 28 witness statements from
51
government officials and fishermen attesting to Honduran regulation , backed by
contemporaneous documentary evidence. All but four ⎯ in some cases ⎯ all but four of those
witness statements refer to the role of cays in su staining Honduran authorized fisheries activities.
In its Reply Nicaragua ignored most of these witness statements, which remain unchallenged.
These powerful testimonies confirm Honduras’s long-standing regulatory role in respect of
fisheries around the islands and in the waters up to the 15th parallel.
49For example, a resolution adopted in 2000 by the Ministry of Agriculture and Livestock and the
Directorate-General on Fisheries, provides that all fishing boats that fish north of the 15thparallel up to the limit of
Honduras’s maritime jurisdiction shall be decommissioned and their fishing li cences suspended. See Annex “E”,
resolution N.06-2000 to Operations Orde r N.21-2000, CMH, Vol.2, Ann.142. The resolution includes a map which
clearly shows that the resolution shall apply to the waters ar ound the cays, as well as the fishing banks in the area. The
resolution extends an earlier resolution dating back to 1999, and is based on Article 340 of the Honduran Constitution,
Article 116 of the General Law on Administration, and Article 43 of the Law of Fisheries.
50
See, as e.g., Statement of Edgar Henry Haylock Arrech avala, CMH, Vol.2, Ann. 74 (“during all the time he
has been in charge of fishing boats [30 years], Honduras has regulated the fishing activities ... he represents that the
fishing permits were obtained in Tegucigalpa”; statem ent of Mario Domínguez, CMH, Vol.2, Ann.80 (“to his
knowledge since he occupied Cay South, the Jamaicans have been fishing in Savanna Cay with permits issued by the
Honduran authorities and they only capture fish”); statement of Angela Green de Johnson, Vol. 2, Ann. 77 (“as far as she
is aware the Jamaicans have been in those cays since the year [1972] and have been granted work permits by the
Honduran authorities”); statement of Robert Richard Gough, Vo l.2, Ann.84 (“the fishing permits were issued by the
Natural Resources Ministry and it was the Honduran authorities who provided documents to the seamen”).
51See as, e.g., statement of Edgar Henry Haylock Arrechavala, CMH, Vol. 2, Ann. 74 (“during all the time he has
been in charge of fishing boats [30 years], Honduras has regul ated the fishing activities . . . he represents that the fishing
permits were obtained in Tegucigalpa”; statement of Mario Domínguez, CMH, Vol. 2, Ann. 80 (“to his knowledge since
he occupied Cay South, the Jamaicans have been fishing in Savanna Cay with permits issued by the Honduran authorities
and they only capture fish”); statement of Angela Green de Johnson, Vol.2, Ann.77 (“ as far as she is aware the
Jamaicans have been in those cays since the year [1972] and have been granted work permits by the Honduran
authorities”); statement of Robert Richard Gough, Vol.2, Ann.84 (“the fishing permits were issued by the Natural
Resources Ministry and it was the Honduran authorities who provided documents to the seamen.”) - 32 -
40. One example is at Annex 84 of the Honduran Counter-Memorial. It was the statement of
RobertGough, a Honduran fisherman, who stat ed that between 1980 and 1983 he fished in
Nicaraguan waters, south of the 15th parallel, with a permit from the Nicaraguan authorities. North
of the 15thparallel he obtained fishing permits issued by the Honduran Natural Resources
Ministry. And he confirms that if they went s outh of the parallel 15, their boats were captured by
the Nicaraguan authorities. However, he states cate gorically that in all the time they engaged in
fishing, they never encountered any Nicaraguan fishing boats or Nicaraguan patrols north of
parallel 15 52.
41. So, Honduras has also put in evidence be fore the Court confirming that when fishing
licences or concessions were not complied with, or where they had expired, the Honduran
authorities take the necessary enforcement measures 53. These statements have not been challenged
by Nicaragua.
42. Some fisheries concessions are granted by congressional decree, and published in
Honduras’s official journal, La Gaceta. The concessions indicate the maritime areas to which they
54
apply , as well as the type of fish to be harvested and the proposed duration of the concession.
Copies of the fisheries concessions dating back to 1962 are before this Court 55. They have not been
challenged by Nicaragua. A number of witness statements confirm the effect of these
52
Statement of Robert Richard Gough, CMH, Vol. 2, Ann. 84.
53
See statement of Fabián Flores Ramirez, CMH, Vol.2, Ann.73; statement of Ramón Antonio Nell Manister,
CMH, Vol. 2, Ann. 72.
54
See, e.g., area described in Notification Concerning an Application for Fishing concession submitted by
“Hondureña de Pesca, S. de R.L.”, published in the offici al gazette of Honduras No. 17.611 of 23 February 1962, CMH,
Vol. 2, Ann. 119.
“The area destined for fishing will include the area from the Bay of Puerto Cortés up to the mouth
of the River Wans Coco or Segovia, in a North bound direction, up to where the territorial sea of
Honduras extend to, in the bed and s ubsoil of the submarine shelf, cont inental shelf and other zones that
correspond to Honduran sovereignty, in accordance with the provisi ons of the Constitution of the
Republic.”
See also area described in Notification Concerning an App lication for Fishing permit, submitted by “Alimentos Marinos
Hondureños, S. A.”, published in the official gazette of Honduras No. 22.551 of 17 July 1978, CMH, Vol. 2, Ann. 120:
“from the Bay of Puerto Cortés, in the Department of Cortés up to the mouth of the River Wans Coco o
Segovia, in the territorial sea, in the bed and subso il of the submarine shelf and other adjacent submarine
zones in its territory, and up to where the depth of t hose waters allow for the e xploitation of the marine
resources, in accordance with the Law and International Treaties . . .”
55CMH, Vol. 2, Anns. 119 and 120. See also RH, Vol. 2, Anns. 256-259. - 33 -
56
concessions . They too have not been challenged. Their value to this case was first questioned
last week by counsel for Nicaragua, who said th at only one of the con cessions referred to by
Honduras in the Rejoinder takes as referen ce the 15º parallel beyond meridian 80º 57. But there is
no reason why all the concessions should extend as far as Nicaragua’s counsel would wish. An
extension of three miles into the sea, or seven m iles or 12 miles along the 15th parallel is as valid
and relevant for the purposes of recognizing the 15 thparallel as an extension of 40 miles or 60
miles or 80 miles. To illustrate, let me show y ou the graphical representation of the extension of
two such concessions. On the screen you will see plate38 (figure26) of Honduras’s Rejoinder.
This shows a concession granted to fishing company “del Mar” in 1975 ⎯ well before Nicaragua’s
artificial critical date 58. As you can see ⎯ in yellow, the line ⎯, the southern limit of the area
licensed for fishing follows the 15th parallel up to meridian 83º E latitude. Similarly, you can see
now on the screen plate 39 (figure 27) of Honduras’s Rejoinder, the graphic description of the area
of delimitation of a concession granted by Honduras to the company Mariscos de Bahía in 1976. It
59
too takes the 15th parallel as the southern limit .
43. In addition to licences and concessions, H onduran authorities provide fishermen with a
document known as a bitácora, and they have done so since the 1970s 60. A bitácora indicates the
area in which fishing is permitted. It is to be returned to the Honduran authorities with an
indication of the quantity and type of the fish that has been caught, as well as the location where the
catch occurred. To ascertain the location, the area in question is divided into grids. The bitácora
issued for the area now claimed by Nicaragua uses the 15thparallel as the southernmost limit of
Honduras’s fishing area. On the screen y ou can see plate31 (figure28) of Honduras’s
56See inter alia statement of Edgar Henry Haylock Arrechavala, CMH, Vol. 2, Ann. 74, who states:
“[T]hey fished in the area from Patuca to the parallel15º and from there out to sea until they
reached the Rosalind Fishing Bank . . . the company that hired them was called Alimentos Marinos; . . .;
he further deposes that within the fishing areas we find South Cay, Savanna Cay and Bobel Cay because
there are fishing banks next to these Cays; the fishing boats sold their captures in Guanaja except those
boats hired by Alimentos Marinos (Marine Foods) that unloaded their production in Puerto Lempira; he
started out as a Master with Alimentos Marinos and la ter continued working for local fishing boats of the
islands; the owners of the fishing boats paid their taxes in Guanaja and those of Alimentos Marinos in
Puerto Lempira.”
57
CR 2007/4, p. 39, para. 97.
58RH, Vol. 2, Ann. 256.
59RH, Vol. 2, Ann. 259.
60CMH, para. 6.44 as well as RH, para. 5.18. - 34 -
Counter-Memorial. It was shown to you last w eek by counsel for Nicaragua. It shows two
bitácoras dating to 1978. They clearly show that the 15th parallel is the southern limit of the area
authorized for fishery, in the red line. Dr. Elferi nk was heroically inventive in his efforts to attack
61
this evidence . But the simple fact is ⎯ no getting away from it ⎯ it confirms that Honduras
regulated fisheries activities in the waters down to the 15th parallel. Nicaragua has not put a single
bitácora before the Court, not a single bitácora to show that it has ever treated waters to the north
of the 15th parallel as falling within its fisheries jurisdiction.
N4ic.arguaae no claim in its Application that it had ever applied or enforced its
fisheries laws in the area north of the 15thparallel. Its Memorial produced no evidence
whatsoever. Only in response to Honduras’s Counter-Memorial did Nicaragua come to this issue.
And we say it has done so inadequately, it has faile d to engage with the evidence. And we make
three points. First, Nicaragua challenges the sufficiency of Honduras’s evidence, not its
authenticity. In our submission the evidence tende red by Honduras is overwhelmingly sufficient.
Second, Nicaragua provides no evidence to show that it has ever protested a Honduran authorized
fishery activity, including the ones published in La Gaceta.
A4n5d. third, Nicaragua provides no contemporane ous documentary evidence that shows
that it has ever granted any fishing licence north of the 15th parallel. It has provided no evidence
that it has ever advertised licences in that area. It has produced no logbooks. It has produced no
bitácoras. There are no licences, no concessions. There is nothing at all. And that may explain
why Nicaragua is now so defensive, even arguing that fishing licences and fisheries regulation are
62
“not directly relevant” . In our submission that argument is not well-based, as this Court’s
consistent jurisprudence has shown 63. In the Qatar v. Bahrain case, the Court expressly referred to
the licensing of fish traps as one of the activities ca rried out by Bahrain in support of its claim to
sovereignty ( Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Judgment, I.C.J. Reports 2001 , pp. 99-100, paras. 196-197). In Pulau Ligitan
and Pulau Sipadan the Court ruled that private fishing activities may be taken as effectivités where
6CR 2007/3, p. 40, para.11.
62
RN, para. 6.107.
6RH, para. 4.35. - 35 -
they take place “on the basis of official regulations or under governmental authority”, i.e., under
governmental licence or pursuant to a governmental concession ( Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002 , p.683, para.140). The
activity set forth in Honduras’s evidence shows that fisheries have taken place under Honduran
governmental authority.
46. All Nicaragua has to offer is the five witnesses that I mentioned on Tuesday. And we
have gone through each of these very carefully: I refer you to our Rejoinder and what I said on
Tuesday. The five statements are wholly inade quate. None emanates from any person who is or
was a government official. Three make no referenc e whatsoever to the ex istence of any fishing
licence granted by Nicaragua. The two that remain provide no supporting evidence, no
documentary evidence of a contemporaneous or other character, to buttress even their modest
claims. So we invite you to read the five Ni caraguan witness statements, and then compare these
statements and the contemporaneous docum entary evidence tendered by Honduras. The
differences are, we say, very, very telling.
47. Bringing together the threads, the evidence before the Court overwhelmingly points to
the fact that Honduras has authorized fisheries activities in the waters north of the 15th parallel and
around the cays for many decades, without interr uption, without protest pursuant to a tacit
agreement that the 15th parallel was treated as th e maritime boundary. By contrast, Nicaragua has
provided no contemporaneous evidence that it has ev er sought to regulate fisheries activities north
of the 15th parallel.
IV. Naval patrols
48. I turn finally to naval patrols. I have al ready referred in passing to these: they enforced
Honduran Laws in maritime and insular areas north of the 15thparallel, as long ago as 1976.
Plate 15 of the Honduran Counter-Memorial, now on the screen (figure 29), depicts the geographic
extent of the Honduran naval patrol zone. These naval patrols perform a number of functions,
including the enforcement of fisheries laws, the enforcement of immigration laws, and the
maintenance of security in Honduras. - 36 -
49. Honduras has put before the Court the testimonies of two officials ⎯ a Honduran
immigration officer and a port supervisor ⎯ who worked with the Honduran navy in undertaking
patrols to the cays to enforce immigration laws 64. Honduras has also provided documentary
evidence, in the form of patrol logbooks and ot her materials, showing Honduran patrols around the
65
cays, the reefs and the banks in the areas to the north of the 15thparallel . These patrols began
in 1976, once Honduras had created its navy. They have been routine ever since. Since 1986 two
dedicated patrol boats have carried out regular operations, visiting the cays as well as Rosalinda
66
and Thunder Knoll Banks. These naval pa trols inspect fishing boats and catches , occasionally
arresting ships fishing or trading illegally 67. Again, the evidence before the Court shows that they
assist boats in distress 68and they provide injured sailors with first aid and other medical
69
assistance .
50. After 1982 the evidence shows that patr ols have also had to respond to occasional
incursions into Honduran waters by Ni caraguan vessels, including military vessels 70. Since 1995,
special patrols have been undertaken with three obj ectives: first, to ensure that Nicaraguan vessels
do not enter Honduran waters and harass or appreh end Honduran fishing vessels; secondly, to
prevent and control narco-trafficking activities; and thirdly, to ensure that duly authorized fishing
64
Statement of Harley Seision Paulisto, CMH, Vol.2, Ann.71 and Statement of Fabián Flores Ramirez, CMH,
Vol. 2, Ann. 73.
65
CMH, paras. 6.60-6.62 and HR, paras. 5.54-5.57 and related annexes.
66
See e.g., logbooks of the two boats ( Honduras and Hibueras) patrolling around the various cays and banks
including Media Luna, South Cay and Bobel Cay, CMH, Vol. 2, Ann.133-136. See also CMH, Additional annexes,
Anns. 20-224.
67
For, e.g., a United States vessel captain was arrested in May 1988, at 16º 20' N 80º 09' W with 3,000 pounds of
lobster and no permits, Report of the Naval Squadron of the Atlantic of Puerto Cortés (May 1988), CMH, Vol.2,
Ann. 132; see also a report regarding the capture of a Nicaraguan vessel while engaged in illegal activities to the north of
the 15th parallel (15º 09' N 82º 12'), CMH, Vol. 2, Ann. 141.
68
See, e.g., logbook of the Hibueras. CMH, Vol. 2, Ann. 130. See also Logbook of the Hibueras (Patrolling of
18 January 1989, describing rescue of fishing crew at South Cay), CMH, Additional Annexes, Ann. 226.
69
See, e.g., logbook of the Hibueras. Naval Base of Puerto Cortés (Patrolling of 6, 7 and 8August1986 and
6 May 1987 on an incident at South Cay), CMH, Vol. 2, Ann. 130.
70
See, e.g., logbook of the Hibueras, entries of 18 September 1982 (incident at Bobel Cay), April 1983 (incident
at Bobel Cay), 9 September 1983 (incident at 15º02' 00"N 82º 30' 00" W), 6 November 1983 (incident at 15º 01' 00" N
82º 58' 00" W), CMH, Vol. 2, Ann. 129; Note dated 21March1982, addressed by the Chief of the Honduran Armed
Forces to the Minister of Foreign Affairs of Honduras Rega rding an Incident with Sandinista Patrol boats in Bobel and
Media Luna Cays, CMH, Vol. 2, Ann. 139; Report dated 9 December 1982, addressed to the Commander in Chief of the
Honduran navy about an Incident with a Nicaraguan Patrol boa t in the Bobel Cay Area, CMH, Vol. 2, Ann. 140. There
are also other documents that have been filed as additional annexes. See CMH, p. 122. - 37 -
vessels respect Honduran fisheries conservation measures 71. In its Rejoinder Honduras provided
72
further evidence of military patrols in the area .
51. By contrast, Nicaragua has produced no co mpelling evidence to show that it has sought
to enforce its fisheries or other laws in any insu lar or maritime areas north of the 15thparallel,
whether before or after 1979. Honduras has provide d extensive evidence: 17annexes of official
military records 73; six witness statements 74, several diplomatic Notes. What does Nicaragua rely
on? Just two witness statements. Even this limite d testimony is flawed. On the basis of the first
witness statement offered by Mr. Arturo Möhrke Vega, Nicaragua refers to Honduran patrols as not
being present in the area before Nicaragua’s “critical date” of 1977 75. But his statement deserves to
be read carefully. Mr. Möhrke Vega does not actually mention any date in his statement as to when
he was there. It is simply not possible to know when Nicaraguan naval patrols in the area he
76
describes are said to have occurred .
52. The second statement on which Nicaragua relies is by Mr. Clark Mclean 77. He describes
fishing in the areas where, he says, “Nicaraguans patrolled”. Those two words constitute the full
extent of his description of alleged patrols. Ther e is no indication of any date, no indication of any
precise location and no sense of whether they overl apped with Honduras’s oil concessions in the
area and the construction of the antenna on Bobel, f acts which appear to be in contradiction with
his evidence.
53. So in sum, we are very content to l eave the Court to weigh up the evidence on patrols
provided by Honduras with that provided by Nicaragua. In the balancing exercise that follows, in
our submission, the scales can only go in one direction.
71
See e.g., Operations Order N.003-95 of the Naval Base of Puerto Castilla (patrolling of February1995 at
Bobel Cay, Cabo Falso Cay, Cape Gracias a Dios and La Mosquitia), CMH, Vol. 2, Ann. 137. See also Ann. 38, 142 and
others.
72
See RH, para. 5.57 and related documents.
73
CMH, Vol. 2, Anns. 129-145.
7CMH, Vol. 2, Anns. 68, 71, 72, 73, 75 and 78.
7RN, paras. 5.4 (iv), and 6.65.
7RN, Vol. 2, Ann. 23; RN, para. 6.110.
77
RN, Vol. 2, Ann. 22; RN, para. 6.110. - 38 -
V. Conclusions
54. Madam President, Members of the Court, that brings me to my conclusions. The Court
has a mass of evidence before it. In our subm ission, the evidence on oil concessions, fisheries
concessions, naval patrols, points decisively to wards the existence of a tacit agreement over
twodecades of the 15thparallel as the maritime boundary, and its mutual recognition as such by
Honduras and Nicaragua. Taken together the cumulative evidence presents an overwhelming
expression of Honduras’s long-established sovereignty and exercise of jurisdiction over waters that
lie to the north of the 15th parallel.
55. Amidst all of this evidence there is one pi ece that I found particular ly telling. It is the
witness statement of Mr.Bob Ward Macnab Bodden (CMH, Ann.86 ⎯ figure30). Mr.Bodden
describes how a fishing vessel registered in Ho nduras was found by Nicaraguan patrols in waters
south of the 15th parallel, where it was alleged to have been fishing illegally in Nicaraguan waters.
The Nicaraguan patrol apprehended the vessel, escor ted it to the 15thparallel, and then released
it8. That happened in 2000, after Ni caragua filed its Application in this case, and as the National
Assembly in Managua was preparing to a pprove the 1998Central American Free Trade
Agreement, which they did in November of that year. So the National Assembly was not alone in
acting in support of Honduras’s claim. The Na tional Assembly of Nicaragua was in good
company. The authorities in Managua that created this claim in December 1999 somehow forgot to
tell Nicaraguan navy patrols about the case.
56. Madam President, Members of the Court, be fore I conclude there are just two points I
would like, with your permission, to address. The first is a minor correction of something that
Professor Dupuy said yesterday. He made inadve rtent reference to a 1994 Note from Nicaragua. I
need to just clear up the fact that the Note referr ed only to the maritime spaces; it did not refer to
any islands, as he inadvertently suggested 7. And second, on a personal note, I would like to record
my deep thanks to all of my colleagues for th eir assistance in navigating this vast amount of
material on effectivités and conduct, and in particular to An jolieSingh of the Indian Bar and to
AdrianaFabra of the University in Barcelona. Gath ering all of this material has not always been
78
Statement of Bob Ward McNab Bodden, CMH, Vol. 2, Ann. 86.
7CR 2007/8, p. 49 and footnote 56. - 39 -
the easiest of tasks, as I am sure the Members of the Court will appreciate. So I want to express my
gratitude, in particular to all of my Hondur an colleagues, but in particular to one,
Engineer Luis Torres. He took a great role on the issues of conduct and effectivités, but very sadly
he passed away between the close of the written pleadings and the opening of these oral hearings.
He was a man of dedication and inte grity. He and I were the same age, so I feel his loss very
keenly. The Republic of Honduras and his family have every right to be deeply proud of the
contribution that he made to this case.
57. Madam President, I thank you very much fo r your kind attention and invite you, perhaps
after the coffee break, to call to the Bar Mr. David Colson.
The PRESIDENT: Thank you very much, Professor Sands. The Court will now rise.
The Court adjourned from 11.25 to 11.40 a.m.
The PRESIDENT: Please be seated. Yes, Mr. Colson.
Mr.COLSON: Thank you very much, Madam President. Madam President, Members of
the Court, before I begin perhaps I could just say a word about the plans of the Honduras team for
the next remainder of today and tomorrow. It has been decided that I will be the last speaker for
Honduras in this first round of pleadings. I have a longish speech which will certainly go through
today. I will make every effort to end it at about the time of the coffee break tomorrow, the normal
coffee break time. The Registry and the translators have a portion of that speech for today. I will
not get all the way through it, but we will pick up wherever we end today and we will supplement it
and we will then proceed tomorrow with additional maps in your folders.
T HE H ONDURAN LINE
1. My task is to present the Honduran line and to discuss its equitable character.
2. Honduras and Nicaragua are party to the 1982 Law of the Sea Convention. Thus, the law
governing this case, the maritime delimitation in this case, is Articles15, 74 and 83 of the
Convention, as has been reviewed by Professor Dupuy. - 40 -
3. There is nothing in the Law of the Sea Convention pertaining to lines of allocation of
sovereignty, which is what Nicaragua requests. The Convention is based ⎯ and its Articles of
delimitation are based ⎯ on an understanding of the territorial sovereignty of coasts, both the
mainland and the islands, and then the application of that law and the application of delimitation
method based upon that appreciation. The approach of Nicaragua is backward; it has no basis in
law; it is without precedent; and were the Court to go down the road suggested by Nicaragua of
deciding a maritime boundary line without reference to territorial sovereignty, letting sovereignty
be determined by reference to the line created, I submit it would have far-reaching implications,
worldwide, in island and maritime boundary disputes.
4. In consideration of the application of Articles 15, 74 and 83 of the Law of the Sea
Convention to this case, Honduras believes that its lin e is fully in keeping with those provisions.
Why?
5. First, the line that is proposed by Hondur as runs east separating the islands that belong to
Honduras from the islands that belong to Nicaragua.
6. Second, as you have just heard and has b een amply demonstrated by Professor Sands, the
line proposed by Honduras marks a tacit modus vivendi honoured for a period of almost two
decades, reflected clearly, and unmistakably, in the oil conduct of the Parties. The Court has been
right to be wary of oil conduct arguments in the cases. The Court, however, after review of oil
conduct that has been presented to this Cour t, at paragraph 304 of its Judgment in the Cameroon v.
Nigeria case, the Court indicated that where oil conduct reflects a modus vivendi it has relevance to
the delimitation and Honduras believes that the facts in this case make that holding applicable here.
7. Third, the line proposed by Honduras follows a line of latitude. Lines of latitude and lines
of longitude are widely used in the practice of States to mark their mar itime delimitations and
certainly, we may say, more so than the bisector method.
8. Fourth, as we shall see when we review the matter tomorrow, the Honduras line is a line
that is more equitable. It is more favourab le to Nicaragua than a provisional equidistance line
would be. - 41 -
THE BASIS AND CHARACTERISTICS OF THE TRADITIONAL LINE ,
WHICH IS THE H ONDURAN POSITION
9. To begin the discussion of the Honduran line, it may be useful to review first its technical
characteristics, and then I will turn to its legal basis, in history and geography and the conduct of
the Parties. And then, in the second part of this presentation, we will use those factors again to
demonstrate the equitable character of the Honduran line.
A. The technical characteristics of the traditional line
10. So, let us begin the discussion of the technical characteristics of the line.
1. Where the land boundary meets the Sea
11. In its Application, Nicaragua requested the Court to
“determine the course of the single maritime boundary between the areas of territorial
sea, continental shelf and exclusive econom ic zone appertaining respectively to
Nicaragua and Honduras . . .”
in the Caribbean Sea.
12. This formulation of the question avoids re ference to the starting-point. However, as I
think we all understand by now, the position of the st arting-point must be determined if there is to
be a delimitation of the territorial sea, the contin ental shelf and the exclusive economic zone. The
determination of the position of the starting-point is made difficult here because of the accretion, in
particular, that occurs at the mouth of the river where the land boundary meets the sea.
13. Both Parties have suggested solutions to this problem. And before coming to them,
however, it might be useful, as others have done, to review the legal process once again by which it
was determined that the land boundary betw een Honduras and Nicaragua reaches the Caribbean
Sea at the mouth of the Rio Coco.
(a) The 1906 Award
14. In the years leading to the beginning of the twentieth century, Honduras and Nicaragua
contested the location of their land boundary resulting in very large areas to be in dispute between
the two countries. Ultimately, there was a 1994 treaty which established a Mixed Commission and
it provided for arbitration if the Mixed Commi ssion could not complete its work. The Mixed
Commission had success. It had success from the Gulf of Fonseca into the inte rior, to the vicinity - 42 -
of the Portillo de Teotacacinte. From there to th e Caribbean coast, however, the dispute remained,
and it was the boundary from the Portillo to the Cari bbean coast that was the subject of the King of
Spain’s Award in 1906, an Award, as we know, that was based in the uti possidetis principle, as the
parties had requested.
15. Nicaragua argued at that time that it was entitled to a land boundary that reached the sea
at Cape Camarón. We are going to put on the screen now a map that you have seen before. This is
a map that represents Nicaragua’s claim before the King of Spain (plate 9 from the Honduran
Counter Memorial (figure 1). Professo r Greenwoood referred to this map and
Professor Sánchez Rodríguez used something simila r in his presentation. This shows Nicaragua’s
view of its uti possidetis entitlement. And as this figure records in the lower right-hand corner, it
records the words or a part of what Nicaragua requested from the King of Spain. Nicaragua
requested “the meridian which passes through Cape Camarón, which follows this meridian until it
loses itself in the sea, leaving to Nicaragua Swan Island”. And you can see at the upper part of that
blue-shaded area the location of Swan Island that Nicaragua claimed at the time. Nicaragua
claimed a substantial part of the coast that is today accepted as Honduras and, likewise, Nicaragua
expressly claimed Swan Island.
16. Why did Nicaragua’s claim refer to Swan Island and to this island alone? We know by
now that there are many other islands in that blue shaded area. Presumably Nicaragua then would
also have claimed all of those other islands that are north of 15º latitude ⎯ that are covered in blue
shade in this figure ⎯ but Nicaragua’s claim did not refer to them. Why not? By virtue of the
uti possidetis principle, these islands were not terra nullius . Nor, presumably, did Nicaragua
believe these islands belonged to Honduras if Nica ragua claimed the coast all the way to Cape
Cameron. Could it be simply that it was understood ⎯ understood at the time and understood in
the Spanish Empire ⎯ that the small islands off the coast ⎯ adjacent to the coast ⎯ automatically
followed the sovereignty attributed to the coast, but that Swan Island, being larger and more remote
and about 100 nautical miles from the coast, was na med, in its pleadings, to leave no doubt about
its claim?
17. Now in all events, the King of Spain awarded this coast to Honduras ⎯ this long stretch
of coast between Cape Camarón and Cabo Gracias a Dios, the coast that we measure to be about - 43 -
130nautical miles long. It is true that the Ki ng of Spain’s Award makes no reference to islands,
but having regard to the uti possidetis principle it is impossible, I submit, to avoid the conclusion
that sovereignty over islands a nd sovereignty over the coast off wh ich those islands lie could only
be different if there was an affirmative finding to that effect.
18. As for the land boundary, the 1906 Awa rd determined that the land boundary on the
Caribbean side begins at the mouth of the Rio Coco. I apologize now for reading the key passage
from that Award which was quoted by the Agent for Honduras on Monday, but I believe it is
important to focus our minds once again on this passage at this stage in our discussion. The Award
states, in the translation recorded at page 202 of this Court’s 1960 Judgment:
“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 the river that of its principal arm between
Hara and the Island of San Pío where said Cape is situated . . .”
And the Award continues, and indeed that sentence continues:
“leaving to Honduras the islets and shoals existing within said principal arm before
reaching the harbour bar, and retaining for Nicaragua the southern shore of the said
principal mouth with the said Island of San Pío, and also the bay and town of Cape
Gracias a Dios and the arm or estuary called Gracias which flows to Gracias a Dios
Bay, between the mainland and said Island of San Pío.”
And further on in the Award, the Award determines that the boundary “will follow the...
thalweg . . . upstream” as the boundary between the two countries.
19. Now let us put on the screen a map ⎯ this was mapAP1 in ProfessorPellet’s
presentation on 8 March 8 (figure 2). There are two matters concerning this map that I would like
to point out. First, there is a point that is id entified by a diamond which purports to indicate that
this location marked the mouth of the river in 1906. Now I cannot say that it does not, because I
don’t know. But I would submit that this is an entirely speculative demonstration by Nicaragua. It
has absolutely no evidence to support this position. The second point that I would like to point out,
is simply at this stage to take note of the island that is in the mouth of the river. We will talk quite
a bit about islands in the mouth of the river in the next few minutes. The King of Spain Award
says that the islands and shoals in the principal ar m of the river belong to Honduras. As we shall
see, when we look at the satellite images, these sediment islands ⎯ and they are sediment islands,
they are sand shoals really, that build up in the river mouth ⎯ they build up in the river routinely, - 44 -
they disappear routinely, and they often end up attaching themselves to one bank or the other on
either side of the principle arm of the Rio Coco.
(b) The 1960 ICJ case
20. Now we know, of course, that Nicaragua challenged the 1906 Award on various grounds.
Ultimately, Honduras was able to bring the continuing dispute before this Court (figure 3). Now on
the screen is a map that ProfessorGreenwood showed in his presentation on Monday, it was his
No. 2 (CJG2). And this was a map that is found in the Honduran pleadings in the case. The map is
dated 1959, but we should make clear that it is not clear to us now when the data that is shown on
this map was collected. But let’s look at this map and what the King of Spain’s Award says. You
can see the river, you can see the large Honduran island of Hara, you can see the island of San Pío
that is left to Nicaragua, you can see the very slender estuary of Gracias, you can see
GraciasaDios Bay, and you can see the locati on of a very small town of GraciasaDios on
GraciasaDios Bay. You can also see that there we re islands then in the mouth of the river, and
there is a line that marks the thalweg as unders tood by Honduras at the time, running between the
islands belonging to Honduras and the coast of Nicaragua’s San Pío.
21. Now I would like to pause for just a moment here in this discussion to speak of this small
town of Gracias a Dios. Last week in his opening statement the Agent of Nicaragua spoke as if this
town was a port, and he referred to it as being located “at the mouth of the Coco River”
(CR 2007/1, p. 26, paras. 37-38). There was even a graphic prepared by the Nicaraguan team that
had a label of a port ⎯ a Nicaraguan port ⎯ on the Rio Coco, at the mouth (graphic 13). Now
Honduras is unaware of a Nicaraguan port or town on the Rio Coco anywhere near its mouth. No
Nicaraguan port on the Rio Coco is shown on modern nautical charts. Charts and maps of this area
show a small town located on Gracias a Dios Bay, just as is shown on this 1959Honduran map.
Now if Honduras is in error about this, Nicara gua will have the opportunity to provide some
evidence of the location of the Nicaraguan port, that it says exists at the mouth of the Rio Coco, in
its second round.
22. Among Nicaragua’s arguments before this Court almost 50 ⎯ or more than 50 years ago
now ⎯ was the argument that the 1906Award w as not capable of execution by reason of - 45 -
omissions, contradictions and obscurities. And in this regard, Nicaragua argued that the mouth of a
river is not a fixed point and cannot serve as a common boundary.
23. This Court, in its 1960 Judgment, made the following observation.
“The operative clause of the Award [speaking of the King of Spain’s Award], as
already indicated, directs that ‘starting from the mouth of the Segovia or Coco the
frontier line will follow the vaquada or thalweg of this river upstream’. It is obvious
that in this context the thalweg was c ontemplated in the Award as constituting the
boundary between the two States even at the ‘mouth of the river’. In the opinion of
the Court, the determination of the boundary in this section should give rise to no
difficulty.” (I.C.J. Reports 1960, p. 216.)
24. Thus, the uti possidetis boundary between Honduras and Nicaragua ⎯ determined by the
1906 Award and confirmed in the 1960 case before the Court ⎯ reaches the sea at the intersection
of the thalweg of the Rio Coco with the line that closes the river mouth. The islands and shoals in
the river belong to Honduras.
2. Characteristics of the mouth of the Rio Coco
(a) The Rio Coco
25. As the Court appreciates, the Coco River drains a large area of the interior of Central
America. Thus, it carries a heavy load of sed iment, and it reaches the sea where the coastal
currents are relatively weak. The result is that the river mouth is constantly changing its shape, and
unstable islands and shoals form in the mouth wh ere the river deposits much of its sediment. I
believe the Parties agree on this.
(b) The 1962 Mixed Commission
26. The pleadings of the Parties detail the work of the 1962 Mixed Commission 80 and there
is little to be added here, except the following. The Commission found that the Rio Coco then
emptied into the sea through three branches: ther e was a northern branch, and a southern branch,
and an eastern branch, and it determined th at the thalweg was in the eastern branch ⎯ the middle
branch ⎯ which it referred to as the Brazo del Este. The report of the Commission referring to this
branch states: “[a]nd the third branch, which flow s in an easterly direction, is generally about
160m wide, but at certain points as much as 500 meters wide, and empties into the sea. It was
80
MN, Vol. II, Ann. 1. - 46 -
noted that there are no islets in this branch.” 81 So by the time the 1962 Commission did its work,
the islands in the mouth of the river, that had been shown on the 1959Honduran map, had
disappeared, and ⎯ as we will see when we look at the satellite photos ⎯ we can see that that
might well be the case, the common case, in these is lands that form and disappear at the mouth of
the river. It would seem that in this case, in those years at the end of the 1950s and early 1960s, the
islands that Honduras had observed in the mouth of the river probably became attached to the
Nicaraguan shore.
27. The point marking the mouth of the river agreed by the 1962 Mixed Commission is the
only precise point that is established in the prac tice of the Parties, in implementation of the
1906Award, that is relevant here. Now let us refer for a moment to the map prepared by the
1962Mixed Commission. This is the same map that ProfessorPellet showed last week as his
map AP2.1. However, we are using our own scan of this map (figure 4) because we feel it is a bit
clearer, but it is indeed the same map taken from the Mixed Commission’s report. Here one can
see the northern arm, observed by the Mixed Commission, called the Canal del Norte. You can see
the southern arm, which the Mixed Commission referred to as Canal Roman, and you can see the
middle or eastern arm ⎯ and if you can read the fine print it says “Brazo del Este”. I would like
also simply to point out here that there is no town of Gracias a Dios on this river. It is shown here,
located on the bay of Gracias a Dios, considerably south of the mouth of the river, and it appears in
the same location as it appeared in the 1959 Honduran map.
3. State practice in similar circumstances to that of the Rio Coco
28. It is not uncommon for the boundary between two States to follow a river to the sea. It is
also not uncommon for the mouth of a river to be subject to accretion and erosion as it is in this
case, or for unstable islands and shoals to build in the mouth of the river. Thus, while the position
may be fixed in law, the geographical position will shift as the mouth of the river shifts, and this
creates difficulties in establishing the starting-point for maritime boundaries. However, as the
practice of States shows, this problem can be dealt with in numerous ways.
29. I would just now refer to three examples from State practice.
8Report of the Honduran-Nicaraguan Joint Boundary Co mmission on the Studies Made at the Mouth of the
Coco, Segovia, or Wanks River. Id., p. 19. - 47 -
(a) Mexico-United States
30. One approach is that adopted by Mexico and the United States to deal with the changing
character of the mouth of the Rio Grande. Nicaragua has referred favourably to this example. In
the negotiations that led to the 1970 Mexico-Unite d States treaty, it was understood that the mouth
of the RioGrande could shift by as much as 1.5 nautical miles from north to south in any given
year. The parties to that treaty agreed to establis h a fixed point at sea, seaward of the river mouth
as it then existed at the time of the negotiations. They agreed further that from the middle of the
mouth of the river, as it might exist at any time, the first segment of the territorial sea boundary
would extend from that ambulatory point ⎯ it would extend though in a straight line to the
seaward fixed point. This technique is recorded in Article5 of the 1970 Mexico-United States
82
treaty . There are citations to these treaties in the International Maritime Boundaries Reports of
the American Society of International Law in the prepared text.
(b) China-Vietnam
31. The second example that I would note is the 2000 China-Vietnam maritime boundary
accord 83.
32. In this situation, the China-Vietnam la nd boundary follows the Beilun River to the sea.
And this river mouth creates the same kind of problems ⎯ it is always shifting about and banks
and flats and sand bars form. That agreement establishes a territorial sea boundary extending from
a defined point1, through points 2 to 6, to a de fined point7. Article3(3) of that agreement
provides that no matter what topographical changes may occur, the delimitation line will not
change unless mutually agreed. Thus, in this ex ample of practice, the agreed territorial sea
boundary will continue to serve as a national border no matter what physical changes occur at the
river mouth, including that line actually could divide between the parties island and low-tide
elevations as they form in future years.
82
International Maritime Boundaries, Vol. I, Report No. 1-5.
8International Maritime Boundaries, Vol. V, Report No. 5-25. - 48 -
(c) Angola-Namibia
33. Just a third example, and this is found in the 2002 agreement between Namibia and
Angola. There the land boundary follows the Cune neRiver to the sea, and there is the same
problem of a river mouth that shifts about, where s hoals and flats and islands form in the mouth of
the river. The parties there agreed that their maritime boundary will be a line of latitude. This line
of latitude will extend all the way to the 200 nautical -mile limit. But, since the exact mouth of the
river may not always be on the latitude that the pa rties agreed to, the parties agreed to establish a
commission to deal with that irregularity, and like in the China-Vietnam agreement, those countries
provided in Article V of their treaty that if the line of latitude that serves as the maritime boundary
crosses an island that may form, the line of latitude will continue to be the border between the two
84
States .
34. Now, Honduras brings these examples to the Court’s attention to illustrate some of the
methods States use to deal with shifting river mouth problems. There is no right or wrong way; it
is simply a matter of adopting a technique that makes sense in the circumstances.
4. Thepresentsituation
(a) Accretion/erosion
35. Since the Mixed Commission determined the mouth of the Rio Coco more than 40 years
ago, there has been a constant reshaping of this river mouth, with the overall result that it has
moved eastward. It is also the case that an unsta ble island feature has now reformed in the mouth
of the river. There is a major difference, obviou sly, between the Parties. Nicaragua’s pleadings
have assumed that it is sovereign over the islands an d shoals in the mouth of the river. Nicaragua
has not explained this departure from the 1906 Award , which is specific that the islands and shoals
within the principal arm of the Rio Coco belong to Honduras.
36. On the screen we are putting up a figur e which you have seen before (figure 5, plate 19
CMH). Several of my colleagues have referred to this figure and it appeared in both the Honduran
Counter-Memorial and Rejoinder. It shows a set of satellite photos of the river mouth in seven
different years from 1979 to 2001. On this set of images, the white dot represents the 1962 Mixed
84
International Maritime Boundaries, Vol. V, Report No. 4-13. - 49 -
Commission point. I might explain that each one of these grid squares is 1' of latitude and 1' of
longitude. Roughly, and I say roughly, laymen might look at this and think of those as 1-mile
squares. A close examination of these figures ⎯ and I will take you through them in a moment,
each one of them individually ⎯ reveals the power of nature to reshape the river mouth. No two
photos are identical and each differs in substantial ways from the one that precedes it in time.
37. Now I propose to look closely at each im age, and as you examine the features that
change, I would urge you to keep your eye on the line of longitude that we have highlighted on this
map in yellow, which is 83°08'W, and the grid line marking 15°N. I am simply highlighting
these for no specific, shall I say, legal purpose, but I think it will help you as we go through this
demonstration to keep your eye on those grid lines as you see the figures change shape. And as we
end this demonstration, we will add to this , using the same 2006 image that Honduras has
introduced in this pleading.
38. In 1979 one sees an island that is forming just north of 15° N, and it is at this time west
of 83° 08' W.
39. Two years later, in 1981, that island is getting bigger ⎯ in two years ⎯ its eastern edge
is now up to 83° 08' W, and, as well, we can see th at there are two small features forming south of
15° N.
40. In 1985, the shape of the larger island north of 15°N has changed ⎯ its shape has
changed ⎯ but overall, we would say, its location is about the same. But we could also say that
the features south of 15° N are expanding.
41. In 1989, the large island north of 15° N has again changed shape but overall its location
has remained about the same. But look what happened to the south. The Nicaraguan mainland has
migrated east, all the way to 83° 08' W. And now , we can see also, there is a new island forming
that is east of 83° 08' W.
42. When we look at the 1993 image, there really is not much to note that is different from
1989.
43. So, we will move on to 1997. North of 15° N, the large island that has been apparent
since 1979 has disappeared. It has become part of the Honduran mainland. And, as we can see, the - 50 -
little island that was forming east of 83°08'W, has become a much larger island and it is now
clearly straddling 15° N.
44. Now, looking at the 2001 image, unfortunately, we find that there is a cloud in the wrong
spot ⎯ some shadow in the wrong spot and we cannot see things quite so clearly as we might like.
But, it is possible to say that the island straddling 15° N has become larger.
45. Now we will turn to the 2006 image that Nicaragua has provided and what can we see
here? The island straddling 15°N would appear to have become larger, and we can see also that
there is a new island forming a bit to its north and east of the tip of the Honduran mainland.
ProfessorQueneudec pointed this out yesterday when he showed the 2004 satellite image that
Honduras introduced. He showed the initial formati on of this little feature in 2004 and now you
can see in this 2006 image that there is a significant feature forming in that location.
46. About all that can be said is that the Parties have it right when they agree that the mouth
of the river changes. What is not correct is wh en Nicaragua argues that the mouth of the river
always opens to the north or north-east. It is hard to see how Nicaragua could provide evidence of
that in light of the satellite images over almost a 30- year period. The fact is that in any given year
the river mouth ⎯ and we normally think of river mouths as being marked by the headlands on the
mainland ⎯ that the river mouth changes ⎯ it may face east, may tilt a bit to the north of east, it
may tilt a bit to the south of east but mostly it f aces east and it will change its characteristics every
year.
47. Now, there is no evidence before the Court concerning the thalweg in the mouth of the
river; no evidence before the Court concerning the thalweg in the mouth of the river anywhere east
of the 1962 Mixed Commission point; nor has Nicaragua set forth an argument as to why it is
sovereign over an island in the river when the Award of 1906 says that the islands and shoals
belong to Honduras. And it seems obvious based on these satellite images that as islands have
formed in the mouth of the Rio Coco, as the rive r drops its sediment where it reaches the sea, those
islands have become connected to the mainland on e ither side of the river, over time; sometimes
on the Honduran side and sometimes on the Nicara guan side. The central characteristic of these
changes being that the peninsula formed by the Rio Coco overall accretes east along 15° N latitude;
as Professor Queneudec emphasized yesterday, the accretion building up on either side of the - 51 -
RioCoco, does so in a rather symmetrical way a nd this has led to the symmetrical shape of the
peninsula of Cabo Gracias a Dios on either side of the Rio Coco.
48. The characteristics of the river mouth led both Parties to agree by the close of the written
pleadings that it would not make sense to give the problem of how to address the shifting river
mouth to the Court ⎯ that is to say, how to get from the 1962 Mixed Commission point to a point
seaward of the river from which the maritime delimita tion can begin. The Parties, by the close of
the written pleadings, had agreed. They had agr eed that from the point fixed by the 1962 Mixed
Commission to a point to be determined by this Court seaward of the mouth of the river, the Parties
would bear the responsibility of determining their jurisdictional relationship in that area. The
Parties of course chose different locations for that seaward fixed point but they were prepared to
leave that issue ⎯ they were prepared to leave it for the Court to decide where that seaward fixed
point should be. But now it no longer appears that Nicaragua agrees that the boundary between the
1962 Mixed Commission point, and the seaward fixed point to be determined by the Court, is to be
left to the Parties. Nicaragua, apparently, want s the Court to determine that boundary. Honduras
does not agree with that position.
(b) Nicaragua’s position and criticism
49. Now, before coming to this new point of disagreement, let me turn to the Nicaraguan
position for the seaward fixed starting-point. Now we are placing on the screen a new figure and
this is all eight images now and we have simply expanded the geographic scope of these images ⎯
this is my figure6 in the judges’ folder. This is the same set of satellite photos but we have
expanded the geographic range of the boxes a bit, so that we can put on these images the location
of the point proposed by Nicaragua and the point proposed by Honduras.
50. The Nicaraguan position appears to be as follows, as expressed in paragraph23 of
Chapter VII of its Memorial:
“The proposed starting line would be located at a point along that median line
direction situated 3 nautical miles out to sea from the mouth of the Coco River. This
point is located in the following geographic coordinates: 150 º1'3N,
83º 05' 36" W.” (P. 83.)
51. We are now adding a label to show Nicar agua’s proposal for the fixed point to be
determined by the Court. Nicaragua later refers to this fixed point at paragraph 10.6 of its Reply: - 52 -
“[t]his point . . . represents an approximate median line and the sector produced by this method is
coincident with the alignment resulting from the bisector method . . .” (p. 197).
52. So, if we understand correctly, the follo wing may be said about Nicaragua’s proposed
seaward fixed point.
1. First, when Nicaragua identified this point, th e point was three nautical miles from the opening
of the river ⎯ from some opening of the river ⎯ presumably as that opening existed at some
moment in time, but we are not told when.
2. Second, when Nicaragua identified this point, th e point was on a version of an equidistance or
median line extending from what Nicaragua re fers to as the mouth of the river, again
presumably as that mouth and that consequent equidistant line existed at some moment in time,
but we are not told when. This is a major problem. It would appear that Nicaragua has
assumed that the developing islands and shoals in the mouth of the river belong to Nicaragua,
which they do not. The King of Spain awarded the islands in the river to Honduras. Nicaragua
cannot use a Honduran island at the mouth of the river as a Nicaraguan base point in applying
the equidistance method. Thus Nicaragua has applied the equidistance or median line method
incorrectly by taking Honduran islands to be Nicaraguan base points.
3. Third, we are told that Nicaragua’s proposed seaward fixed starting-point just so happens to
align with Nicaragua’s bisector proposal, but that it also arises from the application of the
median line or equidistance line method, even though Nicaragua argues that the equidistance
method is impossible to apply in this case. Nicaragua’s approach is curious; it uses
equidistance in the most unstable of situati ons and it refuses to acknowledge its application
elsewhere.
53. So, indeed, Nicaragua proposes a seaward fixed point. Its geographic co-ordinates are
precise, we know where that point is, but that is its only merit. What is the basis for that seaward
fixed point? Both Parties have proposed to iden tify a seaward fixed point because they both agree
that the mouth of the river moves. Yet Nicara gua proposes that the Court adopt a point that was
itself established by reference to the unstable character of the river mouth ⎯ a median line point
three nautical miles seaward of the mouth of the river based on Nicaragua’s interpretation of the
mouth of the river at some unknown moment in time : and we have seen that Nicaragua apparently - 53 -
used a Honduran island as a base point in its cal culations. Whatever may be the case, if you
applied Nicaragua’s method today you would get a different fixed point. You would get a different
one next year. Moreover, if you applied it correctly by treating the island in the mouth of the river
as Honduran, Nicaragua’s seaward fixed point would be located well south of the 15th parallel. So
Nicaragua’s proposed seaward fixed point is based in theory on the ambulatory nature of the river,
it is based on an incorrect assumption in the appli cation of the equidistance method; and it just so
happens to coincide with the bisector line.
(c) The merits of the Honduran position
54. Now let me turn to the Honduran position for the seaward fixed starting-point. Honduras
believes that it is for the Parties to determin e their jurisdictional relationship between the
1962 Mixed Commission point and the seaward fixed starting-point to be established.
55. In the Rejoinder Honduras proposed that the seaward fixed starting-point lie at
14º 59.8' N., 83º 05.8' W. We have now added the Honduran poin t to each of the boxes on the
screen. Thus the Court can see the mouth of the river in selected years, the 1962 Mixed
Commission point, and the Honduran and Nicaraguan proposals for a seaward fixed starting-point.
56. The Honduran seaward fixed starting-point is located 3nautical miles east of the point
fixed by the 1962 Mixed Commission. Honduras believes that between the point fixed in 1962 and
the Honduran proposed seaward point it is for the Parties to arrive on an arrangement on
delimitation requirements. The Honduran position has the merit of being based upon an agreed and
established point rather than on the shifting river mouth, where unstable is lands and shoals form.
And as can be seen, in most years, the Honduran proposal is in a more normal alignment with the
opening of the mouth of the river than the point proposed by Nicaragua.
57. Now, in concluding this discussion of the starting-point, it might be useful to examine
the eight conclusions of ProfessorPellet whic h he set out in his presentation on 9March
(CR 2007/5, pp. 12-13, para. 45), just to see where the Parties agree and disagree.
58. His first conclusion was that the land is accreting seaward. We agree.
59. His second conclusion was that it will do so in an east-north-east direction. We disagree.
As shown on the satellite images we have presented, the accretion that occurs in the building up on - 54 -
both sides of the Rio Coco, that accretion builds up so that the peninsula overall moves virtually
due east along 15° N latitude. And the symmetry of the peninsula formed by its shape is evidence
of the symmetrical deposition of the sediments.
60. His third conclusion was that the 1906 Award should be respected. We agree with that
conclusion.
61. His fourth conclusion was that the thalweg at the mouth of the river marks the end of the
land boundary. We agree, but we do so noting Pr ofessor Pellet’s acknowledgment that there is no
evidence in the record as to the location of the thalweg absent the 1962 Mixed Commission point,
and subject to the King of Spain’s Award, that the islands and shoals in the river belong to
Honduras.
62. His fifth conclusion was that the mouth of the river shifts. Again we agree.
63. His sixth conclusion was that the Parties have agreed to limit the problems to be posed to
the Court in connection with the starting-point. Ou r response is that we thought that was true until
we heard last week the elaboration of a new pos ition by Nicaragua that the Court should address
the line from the 1962 Mixed Commission point to the seaward fixed point to be decided by the
Court.
64. His seventh conclusion was that there should be a “neutral” point ⎯ the word he used
was “neutral” ⎯ at sea from which the mariti me delimitation should begin. We have agreed that
there should be a point at sea to be determined by the Court from which the delimitation of the
single maritime boundary should begin. The point is not designed to be “neutral”, however, it is
designed to serve as a hinge, it connects on the one hand a delimitation to be undertaken by the
Parties between the 1962 Mixed Commission point and that hinge point, and on the other hand, the
delimitation that this Court will establish that will run seaward from that hinge point.
65. Finally, Professor Pellet’s eighth conclusion introduces Nicaragua’s new idea that the
Court articulate how the boundary is to run from the 1962 Mixed Commission point to the seaward
fixed point. Honduras believes this should be left to the Parties, as both expressed in their written
pleadings.
66. To conclude the discussion of the starting-point, let me present one other graphic with a
figure shown by Nicaragua (figure 7). This is Mr . Brownlie’s (IB14) showing Nicaragua’s version - 55 -
of an equidistance line at the mouth of the Rio Coco . It is fatally flawed as it assumes that islands
at the mouth of the river belong to Nicaragua. So, le t us add to this figure a short median line that
is correctly drawn using Nicaragua’s mainland and Honduras’s island. You can see that now. Now
we will add the location of the Honduran proposal for a seaward fixed point. We believe this
graphic clearly demonstrates the merit of the Hondur an proposal. We also believe it demonstrates
the wisdom of leaving it to the Parties the question of how the line is to run and how it is to deal
with these islands in the mouth of the river issues, how that is to happen out to the seaward fixed
point. The relevant issues associated with the legal characteristics at the mouth of the river, and the
technical characteristics ⎯ the hydrology and the location of the thalweg have not been addressed
in the pleadings before the Court. Thus we believe the prudent course would be to leave this to the
Parties as both had agreed in their written pleadings.
Madam President, this brings me to a point where it would be convenient for me to stop and,
if you would agree, we could do that now and we will resume the discussion tomorrow?
The PRESIDENT: Yes, we can do that and we can be flexible about the coffee break time or
the ending time tomorrow morning as well. Thank you, Mr. Colson.
The Court now rises.
The Court rose at 12.55 p.m.
___________
Public sitting held on Thursday 15 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)