I
INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
CASE CONCERNING THE LAND, ISLAND
AND MARITIMEERONTIER DISPUTE
(EL SALVADORIHONDURAS : NICARAGUA iniervening)
VOLUME VE
Written Statement of Nica;Written Observations of El Salvador
and Honduras; Documents; Oral Arguments
COUR INTERNATIONALDE JUSTICE
MEMOIRES, PLAIDOIRlES ET DOCUMENTS
AFFAIRE DU DIFFEREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME
(EL SALVADORIHONDURAS; NICARAGUA (intervenant))
VOLUME VI
DEclaraiion écritedu Nicaraguc~; observations écritesd'El Salvador
- ct du Honduras; documents; procédure orale OBSERVATIONS01: HONDURAS
ON THE WRITTENSTATEMEN'I' OF NICARAGUA
Tlicseobservationsarc filedin accordancewith the Order of 14September 1990
made in the casecoiicerning theLcrrrdI,s/rriclcMaritirneFrotitierDispure.
Necessarily,thcse observations are to be observations on Nicaragua's written
statement. If that written statement had responded properlyto the Court's Judg-
ment of 13September 1990, citi(kep~ivitliintlie litrlitsof itlrericii tliori~ed
by tIi(itJlidgt?~etitt,he course open to Honduras would be clear: it should, so far
as possible,comment on that written stateinent so as to givethe niaximum assis-
tance to the Court.
Honduras notes, with regret,that this is iiot the case. On the contrary, as will
be demonstrated below,virtually the whole of Part 1of the written statement is
written in defiance of that Judgment. It enters into matter011which the Court
ruled specificallythat Nicaragua had no right to intervene,or deals with matters
extraneous to the issue on which the Court ruled Nicaragua did have a right to
intervene.
That places Honduras in a diîlicult position. If, as Honduras submits, virtu-
ally the whole of Part 1 is irreceivable,is it in order for Honduras to comment
on the substance of what Nicaragua has to say (apart from pointing out its
irreceivability)? And would such comments by Honduras be equally
irreceivable?And if Honduras passes overin silence the irreceivablecomments
by Nicaragua, does Honduras thereby run the risk that the coniments will have
soiiie impact on the thinking of the Chamber, to the detriment of Honduras?
For that was presumablyNicaragua's intentionin making the comments. Finally,
and perhaps most iinportantly, what guarantee does Honduras have that in the
forthcoming oral proceedingsNicaragua will not pursuc oral argument designed
to reinforce these irreceivablecoinments and, in effect, flout the Court's Judg-
ment? Should Honduras itself prepare oral arguments to meet this eventuality?
It is with these questions in niind that Honduras orers the followingobserva-
tions on Nicaragua'swritten statement.
1. THELIMITSOF THE PEKMITTED INTERVENTION
The Court's Judgment of 13September 1990 isperfectly clear.It can be sum-
iilarized in three propositio:s
(u) Nicaragua mayiiitervcncon the question of the legal régimeof the waters
of the Gulf.
(h) Nicaragua may rio! intervene on the question of delimitation of those
waters.
(c) Nicaragua inay tlot interveiie on the question of the legal situation of the
maritime spaces outside the Gulf.
2. PART1OF THE WRI~EN STATE~VIENT
Section B. Niccrrugu~iA'ttitude[>rIn~eri~ention
These paragraphs (paras. 5-13) are simply irrelevant. They are, on the one
hand, a form of self-justification,attempting to justify Nicaragua'srequest for a34 DISPUTE (EL SALVADOR/HONDURAS) [3-51
general right of intervention and criticizingthe Chamber for its rejection of that
request. And, on the other hand, they repeat the position assumedby Nicaragua
that it was throughout willingto provide details of its legalinterests in the issues
of delimitation, and referenceis made to the ltalian request to intemene in the
Liby~-t/Mlr/trcase, where one Judge specifically put questions to the ltalian
Agent concerningItaly'sinterests.The implication is that the Chamber ought to
have put siinilar questions to Nicaragua, to draw out specificinformation about
Nicaragua'slegal interests.
The short answer to this is that it is the intervenor'sduty to demonstrate the
existenceof any legal interest likely to be aflèctedby the decision. It is not the
Court's duty to ferret out this information by questions to the Agent.
This, unashamedly,deals with delimitation inside the Gulf. The extraordinary
thing is that, even now,Nicaragua still totally fails to demonstrate that it has any
clear legal interest in the waters of the western half ofthe Gulf (Le. the area
within which Honduras seeks a delimitation with El Salvador).
Even the discussion (at paras.22-25)of Farallones, and the terminal point of
the 1900HonduranNicaraguan delimitation, is irrelevant to the western half of
the Gulf. To avoid any confusion, further explanation as to this terminal point
under the 1900Agreement will be given below. But the essential point is that
it does not, and cannot, affect any HonduraslEl Salvador delimitation in the
western half ofthe Gulf.
AllegedHond~rrurriigl~tsotrtsirle[lieGir(f(paras. 26-29)
All of this plainly exceedsthe right of intervention granted. It is, moreover,
full of errors. There hasnever been, to the knowledgeof Honduras, any formal
claim by Nicaragua that, as far 21sthe mid-point on the closing-lineof the Gulf,
the waters are Nicaraguan territorial waters. Nor is thcrc any evidence thtit, on
this closing-line,Nicaragua shares a common boundary with El Salvador. The
successiveConstitutions of Nicaragua (see Annex 2 to the Nicaraguan Written
Statement) for over a hundred ycars have referred to Nicaragua as a State with
t~i~oneighbours only - Costa Rica to the south and Honduras to the north.
And paragraph 27 does not reflect the Honduran position at all, as regards the
status of the waters of the Gulf.
El Salvorlorurioccepranceof tlie Nicar~~guup iiosition(paras. 30-35)
This section is virtually al1non-receivable.To argue that El Salvador accepts
the reality of Nicaragua's interests in cleliniiratioinside the Gulf is quite
unacceptable at this stage.
There are, in fact, two paragraphs only in this section whichare properly con-
cerned with the legal status of the waters of the Gulf: these are paragraphs 33
and 34.
Nicaragua'sobligatiorisas an iiiterverior(paras.36-44)
This section is, for the most part, irrelevant to the issue on which Nicaragua
has been allowed to intervene.
Yet, paragraph 41 is worse,for it directly challenges the Court's Judgment. In
effect, Nicaragua here maintains that, in accordance with the precedent estab-[5-71 OBSERVATIONS OF HONDURAS 3 5
lished for Italy in the Lih~~rrlMulctase, the Court cannot in this case delimit as
between Honduras and El Salvador in an area subject to Nicaraguan claims.
This observation is unacceptable for two reasons. First, and foremost, because it
deals directly with delimitation, and, second, because Nicaragua has totally and
consistently failed to demonstrate that it has aliy claims in the waters of the
western parts of the Gulf and the maritime areas outside the Gulf.
However, it appears that Nicaragua is prepared to remedy this omission, even
at this late stage. Paragraph 42 promises, in the section that follows, to inform
the Cliamber of these claims, in other words to make the demonstration of
itslegal interests in the delimitation ~c:iiicit totallj~failed tdo prior ro Judg-
ment.
Section C. Nicaruguu'sAttit~rde on Deliniitutiori(Paras. 41-52)
The title of this Section itself givcs a forewarning that Nicaragua does not
intend to confine itself to the li~iiits'cstablished by the Court to its right to inter-
vene.
It begins (at para. 44) by identifying four elements of the situation inside the
Gulf.
((1) The absence of any régime of condominium - the observation is relevant
to the status of the waters of the Gulf, and is receivable.
(b) The absence of aiiy regime of community of interests - this, although mis-
conceived, is relevant and receivable.
(c) The existence of a delimitation between Nicaragua and Honduras in accor-
dance with Acta II of 1900 - this statement of fact is, as such, unobjec-
tionable if related to the status of the waters.
(rl) Nicaragua's entitlement to a deliniitation "in the western and southern parts
of the Gulf" - this is certainly objectionable and irreccivable.
Nicaragua then proceeds to deal with three separate points.
(i) TitedelirnitatiortivirliHortdurasin 1900(paras. 45-47)
There is no doubt that this delimitation exists. For Honduras its relevance has
always been to show that the littoral States accepted the necessity of delimita-
tion, and rejected the El Salvadoran thesis of coiidominium, excluding delimita-
tion. But the relevance of this 1900Agreeinent ends there. It does not lie within
the western half of the Gulf. the area relevant to a HonduraslEl Salvador
delimitation, and does not affect the task now before the Court.
There certainly appears to be somequestion, between Honduras and Nicaragua,
as to the terminal point of this boundary, specifically whether it liesas far seawards
as Farallones. The Honduran position is supported by map evidence' and sub-
' Forexamplc,thc mapproducedbythe Honduran/NicaraguanMixedBoundaryCom-
niissionMap, scalc 1:1,160,000:the 1905 MixcdCommissionMap, scalc1:250,000;the
1907Mayes Map of Honduras, scale 1:700,000;the 1915Bontz Map of El Salvador,
Showing Routes ofCommunication,US i-lydrologicalSurvey, scale1:480,000;the 193s
AguilarPaz Map of Honduras,an oflicialmripof Honduras,scale 1:500,000and repro-
duced in 1934,1953criid1954.Then tlicreare the ollicial maps of Nicaragua,ol' 1966,
1970and 1972whichthoughtheydo riotshowthe linegoingas far as Farallones,do show
the lineas stoppingjust short of Farallones.36 DISPUTE (ELSALVADORII~IONDURAS) [S-1O]
sequent practice by the Parties2. But in any event, this caniiot be a point relevant
to the present dispute.It can be resolved, on a bilateral basis, between the two
Parties.
(ii) Belii?~itu/iolc~itlrie GulJ'(paras.48-51)
None of this is receivable. Honduras does not choose to be drawn into a
debate over the controversial propositions made by Nicaragua. It does note,
however,the statement that :
"the alignment claimed by Nicaragua within the Gulf is not affected by
the contingency that Honduras will be recognized as entitled to Mean-
guera".
Honduras agrees that the Court can proceed to resolvc the dispute over
sovereignty overMeanguera, between El Salvador and Honduras, without con-
cerning itself with the question of how, if at all, its decision will affect
Nicaragua'sfuture delimitation inside the Gulf.
(iii) Belit>~itritnutside the Girlf(para. 52)
This, too, is not receivable and Honduras does not wish to comment on
Nicaragua's viewsexccpt to say that, in due course, Honduras is perfectly pre-
pared to negotiate a maritime boundary with Nicaragua in accordance with
equitable principles.
3. Tl.iECOMMUNITY OFINTEREST SPART11OFTHEWRITTEN STATEMENT
Nicaragua declines to recognize the existence of acommunity of interests
between the three riparian States in the Gulf of Fonseca. Adopting a deliber-
ately formalistic attitudeitsuggeststhat tlie notioii of;icommunity of iritcrests
applied to a maritime region such as the Gulf of Fonseca is characterized by its
"novelty" (para. 58). Itsuggests that the Honduran contention is an inaccurate
transposition into the field of maritime law of a concept properly confined to
the law of international rivers, and taken from the case on the Iiiteriiu~ioiial
Co~~iinis.sio 11 rlre River Oder, decided by the PClJ (page 59). Nicaragua
suggests furthcrmore that the implications of the concept of a community of
interests between tliethree States in the Gulf, as developed by Honduras, are
incompatible with the principles and rules of the contemporary law of the sea
(pp. 62 et seq.)
It isclear that Nicaragua presents an analysis of the concept of community of
interests which isdeliberatelyformalisticand obscures the "ruriolqis" which lies
behind this concept.
In reply IO the Nicaraguan allegations on this point, three basic and inter-
related comments need to be made.
1. In the first place, to deny the existenceof a community of interests in the
Gulf is, in effect, to deny the very specificgeographical and legal characteristics
of the Gulf itself.
* For exaniplcthe regularHonduraiinavalpatrolsto Farallonesand evcnbeyond -
indeedbeyondtlieclosing-line-as shownon Map C.2 attachedtothe HonduranMemo-
rial. Nicaraguamadenocommenton, orobjectionto,thismap.[IO-121 ORSERVA'TIONO SF HONDURAS 37
This is in substantial contradiction with several of the arguments used by
Nicaragua itself to demonstrate that it possesses an interest of a legal nature,
such as to justify its intervention in the present case.
2. In the second place, to confine the application of the concept to the law of
international rivers,assuming such a concrete body of law to exist, constitutes a
misunderstanding of both the bundation and the true scope of the concept.
3. Finally,it is quite inaccurate to describe as contradictory the legal iinplica-
tions derived from the existenceof a community of interests in the Gulf and the
application of tlie relevant rules of the new law of the sea. In fact, on the con-
trary, it can be seeiithat this concept and the new lawof the sea coincide to pro-
vide the application of those "equitable principles" which playso significant a
role in the contemporary maritime law.These three points can be developed in
the followingway.
1. TheDei~iulb)>Nicurriglracf tlie SpecirrlGeo.~rcipl~icrriiilidLe,qul
Cl~urricter ftlirGulj'ofIiorisecu
In its Request to intervene: in its oral pleadings before the court to support
tliat Request, and even in the Written Statement newly before the Courti
Nicaragua has always insistedon the very specialgeographical characteristicsof
the Gulf (see the Request to Intervene, para. 2 (c): to which the Court itself
drew attention in its Judginent of 13 Septeniber 1990, para. 37). It was
Nicaragua that in that same Request referred to "the leading role of coasts and
coastal relationships in the legal régimeof maritime delimitation" (Request,
para. 2 (f)).
Nicaragua has repeatedly eriiphasized the special physical characteristics of
the Gulf, in particular its liniited area: and the existenceof three riparian States
in order to explain tliat the dec,isionto be givenby the Chamber as between El
Salvador and Honduras must necessarilyaffect the interests of Nicaragua in the
Gulf. In short, Nicaragua has always insistedon the particular characteristics of
tliis region so as to justify itsclaiin to intenene in the present case. Rut, as will
be emphasized below (cf. infia, 2), tlie coinmunity of iiiterests simply signifies
that we are in a situation in which the facts of the situation, in particular the
geographical facts; produce legal consequenceswhich caiinot be ignored.
At one extreme we have the view of El Salvador, that the Gulf of Fonsecais
juridically a condominium, a highly exceptional situation siiicc it involves a
radical departure from the normal principle of the exclusiveterritorial compe-
tericeof each sovereigiiState.
At the other extreme, WC have the view of Nicaragua, that one can treat the
Gulf in exactly the same manner as any other body of water adjacent to the
coasts of several States.To dcny the special character of the Gulf of Fonsecais
to devalue the special status of the Gulf which, as the Honduran Memorial
dcmonstrated (cf. Memorial, Vol. II, pp. 646 et seq.) has attracted the attention
of al1the authors, beginning with Gilbert Gidel, for whom the Gulf constituted
the unique exaniplc of a multinational, historic bay, shared by three riparian
States.
Finally, itshould be noted tliat the present position of Nicaragua contradicts
the position adopted by Nicaragua in the dispute with El Salvador before the
Central American Court of Justice. In that case Nicaragua had emphasized that
the Gulf was a "closed seal", of a "territorial" character, in which sovereignty
rested with Nicaragua, Honduras and El Salvador.
This position, adopted more than eighty years ago, seemsto accord with the
one adopted by the Nicaraguan delegation to the United Nations General38 DISPUTE (ELSALVADOR/HONDURAS) [12-141
Assemblyduring its last session(1990).Only four days beforedelivering itswrit-
ten statement to the Chamber of the Court, i.e. on Tuesday II December 1990,
Mr. Mayorga Cortes took the fioor at the sixty-fourth session of the Assembly
and, havingtaken note of the Chamber'sdecision on the Nicaraguan application
to intervene in this case, declared in relation to this case:
"What the Government of Nicaragua wants to stress is that the Gulf of
Fonseca is the core of a geographical zone belonging, without any dispute
by third parties,to the three coastal States, each of which possessesits own
geographical area of jurisdiction. Human activity throughout the area has
polluted the environment, which poses a growing threat to the resources of
the basin. In our vieul,the three coastal States have a shared interest in
restoring the balance of nature and promoting the sustained developmentof
the Gulf's resources.Using the Gulf as an opportunity for CO-operationon
joint projectsdoes not contradict the practical need to define the areas of
jurisdiction of each of the coastal States. This is the spirit that inspires
Nicaragua."
This is a very important statement indeed, on which two major observations
should be made.
First, one can find here, in the words of the Nicaraguan Delegate, an exact
description of what a "community of interest" is. in the same sense as the Hon-
duran Government has always understood it, on the basis of the jurisprudence
of the Permanent Court. The view that the zone of the Gulf belongs "to the
three coastal States, each of which possessesits own geographicalarea of juris-
diction", the recognition that "the three coastal States have a shared interest"
(the officia1translation into French by the United Nations Secretariat being
"communauté d'ix~térêt")t~ h,e view that this geographical and legal situation
offers "an opportunity for CO-operationon joint projects", the observation that
this last element "does not contradict the practical need to define the areas of
jurisdiction of each of the coastal States" are al1totally in accord with the Hon-
duran view and could have beentaken from its written pleadings presentedto
this Chambers.
Second, it is clear that this statement, made to the United Nations General
Assembly, was avery official one, delivered by the Nicaraguan Delegate in the
name of hisGovernment, and it cannot be reconciledwith the.contrary position
taken by the same Government, practically at the same time, inits statement to
the Chamber. Of these two irreconcilableviews,it is the view expressed to this
Chamber which isself-servingand should be rejected.
2. Tlie TrireNatrrreof 111e"Co~nrnutii~ of Interes~s"
Nicaragua is perfectly correct in observing (at page 59, para. 7) that the
notion of a community of interests had been developedby the Permanent Court
in a case concerning an international river (the Oder) and its tributaries. But
"ee Annexto the presentObservations.
lbid
One should recallthat the Hondurandelegationto the Honduran-Salvadoran Mixed
JointCommissioii madea proposalforCO-operation n the administrative, environmental,
scientiîic and economic ficlds to the Salvadorünpart, during the mcetiiig of this body
whichtook placeon 23 and 24 Jiily 1985,see HonduranMernorial,p. 688, para.99, and
Aiinex V.1.22,p. 916, to the same Meniorial.Nicaragua deliberately distorts reality, and ignores the inherent logic of the
Court's reasoning, in restricting the notion to the rbgirnc of an international
river. Nicaragua in cflect suggests that only one kind of physical si~uation,the
international river, is capable of generating betwsen States of the area identity
and equality of rights, and the duty of mutual respect for those rights. The
Nicaraguan thesis.which seeksto confine "comrnunity of interests" to the lawof
international rivers, assumes that such a spec~ficbody of law existed. This was
Llr [rom clear üt the tiine of the PermanentCourt'sjudgment in the River Ocier
case"lt 1strue that, with the recent workof the ILC on non-navigational uses of
the international waterways,one can begin to postulate a general régimefor siich
waterways, but hitherto, and given the great dlversity of situations in which
States bordercd the sarne river, the assumption that a specific legal rkgime
existed was highly questionable.
Indcpeiidently of the particular facts of the River Oder case, what gave this
casea special importance was the wayin which the Permanent Court developed,
using the highly suitable phrase "commiiriity of interests", a new legal conmpt,
Its purpose was IO demonstrate ihe equality of rights, and the reciprocal respect
for those Rghts existing in a geographical situation in which a number of States
find that the exercise of their sovereign righits necessarily impinges upon the
exercise of similar rights by neighbouring States. This is exactly the kind of
sit~iationexisting in the Gulf of Fonseca, as rightly depicted in the staterneni
made by Mr. Mayorgü-Cortes,the Nicaraguan Delegate to the United Nations
General Assembl y,last December.
One OFthe fields in which thissame phcnomenon of equal. reciprocal and
even inter-dependent rightshas been observed is,in fact, the lawaf thc sea.
The provisionsof the 1982Lawof the Sea Convention are highly illurninating
in this respect.
AL rcgards the management of adjacent maritime zones, Part XI1 of the Çon-
vention, dealing with the protection of the marine environment. imposes on
coastal Stateswithin the same region thc duty to consulr and co-operate6.
Agüin, in Article 63 (Part V) of the sanie Convention. one finds, in the con-
text of fisheries, an illustration of the necessary co-operation betwecn two or
more States sharing the stocks uccurring within thcir respective exclusiveeco-
nomic zones; '.
SECln pariicularArticles 197, 207para. 4. 210, para4,212, para.3.
7 "drrirle63
Si(h Orcirring Wirhinthe E.1-rliis~e~ononiiZone
of Two or More ConsraISrurrarirBurli
Wirhin rlir Ex;rhuileconomicZotte oridri1un Areu Beyoridund A&~enr ro Ir
I Wherethe snrnestock or stocks of associatedspeciesoccur within ihe exclu-
sive economiczones of two or more coastal Statcs, theseStatesshalscck, either
dircctlyor throughappropriatcsuhregional or re~onal organizations10 agreeupon
themeasuresncccssaryto CO-ordinataend ensurethe conservationand development
of such stocks withoutprejudiceto the atherprovisionsof ihisPart.
2. Whçre the sanle siockor stocks of associated speciesQCCUbroth within the
exclusive econoinic zone and inan arca beyond and adlaceiit tn the zone. the
coastal Statc ai~dthe States lishing Forsucstocksin the acjaccntareashall çeek,
either dirccily or ihrough appropriatcsubregional or regional organizationr ta
agrec upon the measures iiecessary forthe conservation of these stocks in thc
adjacentarea"40 DESPUTE (EL ÇALVADOKIHONUURAS) i17-191
Even inure specifically,Part lx, devoted, to enclosed seas and scmi-enclosed
seas,seems co apply very accurarelyto the Gulf of Fonseca8.Article 123.which
is its main provision.reüds as follouls:
"States bordering on enclosed or serni-enclosed sc~ishould co-operate
with each other in the exercisc of their rights and in the performance of
their duties under this Convention. To this end thcy shall endeavou- d~rectly
or through an appropriate regional arganization :
(n) to CO-ordinate the management, consenlatinn, exploration and
exploitahon of the living resourccs of (he sea;
(b) to co-ordinate the iraplcmentation of their rights and diities wiih
respcct to the protectioiüml preservütion of the marine cnvironment ;
(cl to co-ordinate therr scientific reseürch policies and uiidcrtake where
appropriate joint programmes of scientificresearch in the area;
(d) 10invite,as appropriate, other interestcd States or international organi-
zations in cooperate with them in fiirtherance of the provisions of this
article."
This article describes vcry well the kind of co-operation which should be
rationülly implied by the çomrnon interests shared by CO-riparianStates of the
rame closed sea. The CO-operationinvoked both by the i-ioiiduran Government
during its previous negotiaiions with El Salvador (1985) and by the Nicüraguan
Ilelegate tu the United Natioiis General Assembly(1990)cnuld find their place
in tlic generdl context of the rules defincd in the above-mentioned provision.
whiçh shows perfectly what are the general trends in the contemporary law of
the sea. in favour of strengthening the solidarity created between scveral States
by the facts of nature.
It seems that. in its statement to the Chamber, Nicaragua resents the exprcs-
sion c'çomrnunityof interests". and regards it as a wütcred-downversion of the
El Salvadorian thesis of a conduminium. The importance does not lie iiithe
actual expression,and Nicarüguiiis free to offer :in alternative. The importance
lies inthc çoiicepi. Horlduris considers this çonçept applics not simply in tlie
sjiuation faced by the IJerinaneniCourt in the Hiver Od~r case,but in a whole
seriesof situütionsin whichthe geographicalcircunistancesimpose on States the
necessityfor ihis reciprocalrcspect Fortheir equal rights.
it is necessarEO recallthe point made by Horiduras iriits Mernorial, whiçh is
preciselythat the essential diîlèrencebetwecn a condominiulii and a comrnunity
of inierests is that the former is dependent on a formal agreement: it results
from (lie concerted will of the Parties. Whereas the community OF interests 1s
imposcd by the facts of nature, by the geographicalcircumstünces,independently
of the will of the Parties.
The rejection of a coinmunity of interests by Nicaragua. in froni of the
Charnbcr, iscuriously out of keepingwith contemporüry trends. FOrihese trends
ernphasize the inierdepcndence of States, tzn inierdependencc imposed by tlic
facts of their relationship. This 1sseen on a global scale, but cven more pro~iii-
nentiy on a regional or locül scizlewhen the obligationsof CO-ordinationbecome
püramount.
Artlcle 122givcsto an "enclosedsea"the followindescriptioii:
"For thepurposes af thisConvention',enclosedor semr-enclosc deameansa gulf.
basin or ~ed~urmunded by twu or more States andcoriricctcio ünother scaor the
oceünby a narroivoutletorconsistirientireior priniariof the territorisras and
exclusivccnnorniçzones oftwaor moreçodslalStates."[Ig-201 ORSERVATIONS01' HONDURAS 4I
3. Tlie IrlEnritof ResiilrAcliiei~erbj~the Conceptof Cottil?i~itiito~f~Interesrs
lrildthe RelevnntRiilesof the Lcrior?f[lie Set/
As mentioned above, far from rejectingthe concept of a community of inter-
ests, the modern law of the sea recognizes that such a commuiiity of interests
does exist, whether or not that precise terminology is used. In a more general
sense, it would be both artificial and arbitrary to suggest that a contradiction
exists between the result achievedvia the concept of a community of interests,
and the result achievedby the application of the relevant rules of the contem-
porary law of the sea.
In particular. as is well knowii, the rules governing the delimitation of mari-
time zones are dominated by the application of "equitable priiiciples", and the
need to achievean equitable result, taking account of al1relevant circumstances.
In the present case: the existence withinthe Gulf of the Honduran coast, its
length and its configuration are preciselythe relevant circumstances that require
to be taken into account in the law of deliiiiitation. They must equally be taken
into account if the concept of community of interests is applied. For if El Ssl-
vador and Honduras haveequal rights, it is iiot possible to giveeffect to El Sd-
vador'scoast, but ignore that of Honduras. Siinilarly,as regards the closing-line
across the mouth of thc Gulf, whether one applies "equitable principles" or
equality of riglits,it isinconceivablethat Honduras sliould be denied any part of
that closing line.
As regards the maritime areas outside the Gulf, similar considerations apply.
Equitableprinciplesrequirc that Honduras, as a coastal State: has an eiititlement
to those maritime zones which attach to its coast. The idea of a community of
interests produces an identical result,for there would be no equality of rights if
El Salvador had such an entitlement whilst Honduras had none.
Far from being in contradiction, the use of the concept of community of
interests and the taking into account of "relevant circuiiista~ices",because they
involvereferenceto the sanie gcographical factors,coincide to produce an equi-
table result. Equity,understood as an inherent feature of the application of a
rule of law, lies cqually at the foundatioii of the concept of a community of
interests. It is ail essential componeiit of the contemporary international law
governingmaritinle zones.
(Sigrlecl)Dr. R. VALI,AI>AKBS SOTO:
Agent. Annex
FORTY-FIFT SESSIONG,ENERALASSEMBLY:
PROVISIONV ALRBATIMRECORD OF ~1.1SIXTY-FOURT MHEETING
Heldat Headquarte, ew York,on TuesdayIDecember 1990,t 10a.m.
(Provisio:Al45lPV.62,January1991; English)
QUARANTE-CINQUIE SMSION,ASSEMBLÉ GENÉRALE?
PROCES-VERB PROVISOIRDEELA64eSÉANCE
Tenueau Siège,à New York,le niardi11déc1990,k 10heures
(Provisoire:5lPV.6, janvier19;fraii~ais)
Written Observations of Honduras on the Written Statement of Nicaragua