INTERNATIONAL COURT OF JUSTICE
MARJTIME DELIMITATION
BETWEEN NICARAGUA AND HONDURAS
IN THE CARIBBEAN SEA
(NICARAGUA vHONDURAS)
REJOINDER
OF THE~ REPUBLIC OF HONDURAS
VOLUMEI
13 AUGUST 2003 v
CHAPTER 6: GEOGRAPHIC FACTORS .........................................107........
A. Cabo Gracias a Dios: Where the Land Boundary Meets the
Sea ...............................................................108......
.........................
B. The Coasts of the Parties that Face the Maritime Area to be
Delimited .........................................................111............
...............
C. The Islands and Rocks oflmportance to This Case which Lie
in Front ofthe Land Boundary Terminus ...................................... 113
D. The Non-Relevance of Shallow Geomorphological Sea-Floor
Features ..........................................................116...........
.................
CHAPTER 7: OBSERVATIONS ON THE NICARAGUAN LINE ................... 119
A. The Technical Characteristics ofthe Nicaraguan Line.................. 119
B. The Nicaraguan Line Runs on the Wrong Side of the
Honduran Islands Situated between 15° N. Latitude and
15°15' N. Latitude ........................................................................
. 120
C. The Nicaraguan Line Gives No Weight to Honduran Islands
North of 15°15' N. Latitude .......................................................... 121
D. The Bisector of Coastal Fronts Presented by Nicaragua Is
Based upon a Flawed Assessment of Coastal Fronts and
Delimitation Methods .................................................................... 122
CHAPTER 8: THE HONDURAN LINE .........................................125...........
A. The Question of How the Boundary Should Account for the
Accretion and Erosion at the Mouth of the River Coco ................ 125
B. The Technical Characteristics of the Boundary that Honduras
Proposes...........................................................127..........
.................
C. Consideration of Relevant Case Precedent.. .................................. 128
D. The Test of the Equitableness of the Honduran Line against
the Equidistance Line .................................................................... 130
E. The Question whether the Honduran Line "cuts-off' the
Projection ofthe Coastal Front ofNicaragua ................................ 131
CHAPTER 9: SUMMARY AND CONCLUSIONS ....................................133..
SUBMISSIONS ..............................................................135.......
...................
LIST OF ANNEXES IN VOLUME 11..............................................137.......... iii
CONTENTS
List of Colour Plates in Volume I ........................................................... vii
CHAPTER 1:INTRODUCTION .....................................................1...............
A. The Subject of the Dispute before the Court ..................................... 1
B. The Nicaraguan Claim.......................................................................
2
C. Nicaragua's Tac:ticwith Regard to Effectivités ................................. 4
(1) The Relevance of the Islands ..................................................... 4
(2) The Alleged Critical Date .......................................................... 6
(3) Relevant Circumstances ............................................................. 6
(4) Equitable Principles and an Existing Boundary ......................... 7
D. The Inequitable Nature ofNicaragua's Own Approach .................... 7
E. The Starting Point ......................................................8.................
......
F. The Structure of the Rejoinder .......................................................... 9
CHAPTER 2:HONDURAS' CASE IN LAW ..........................................11......
Introduction ............................................................................................. 11
A. Sovereignty and Delimitation in the Present Case .......................... 14
(1) Nicaragua' s Ambivalent Yet Inconsistent Position
Regarding the Islands North of the 15thParallel (14°59.8') .... 14
(2) The Legal Principles Applicable to the Islands North of the
15thParallel (14°59.8')...........................................17................
B. The Relationship between Law and Equity to be Applied to
the Delimitation ......................................................23................
.......
CHAPTER 3: THE UT/ POSSJDETIS JURIS .....................................29..........
General Observations .......................................................29...............
......
A. The Characteristics of the Uti Possidetis Juris in Spanish
America ...............................................................31.......
...................
B. Expert Opinion ........................................................35..............
........
C. Application of the uti possidetis to the Islands and Maritime
Areas now claimed by Nicaragua .................................................... 41
D. Jurisprudence Confirms the Application ofthe Principle to
Islands and Maritime Areas............................................................. 45
E. Acceptance by Nicaragua of the Uti Possidetis Juris in Its
Application Against Colombia ........................................................ 50 IV
F. Conclusions ...........................................................51...........
.............
CHAPTER 4:NICARAGUA HAS NO EFFECTIVITÉS OR
SOVEREIGNTY ÜVER THE ISLANDS .................................................53......
Introduction ...............................................................53.......
.....................
A. Sovereignty and Effectivités:the Applicable Legal Principles ........ 55
B. Nicaragua's Evidence Does Not Support lts Claim To
Sovereignty over the Islands............................................................ 56
C. Nicaragua's Silence: The Matters on which It Provides No
Evidence of Effectivites ................................................................... 57
D. Nicaragua's Evidence asto Effectivités........................................... 58
(1) Nicaragua's Oil and Gas Concessions ..................................... 59
Nicaragua's Consistent Practice .......................................
Nicaragua's Practice Confirms That It Ras Recognised
the 15thParallel As the Northem Limit ofits Oil
Concessions ...................................................................... 64
Conclusions on Nicaragua's Oil Concessions .................. 66
(2) Nicaragua's Practice in Relation to Fisheries .......................... 66
(3) Recognition by Third States ofNicaraguan Sovereignty......... 69
(4) Nicaragua's Cartographie Evidence ........................................ 70
(5) Nicaragua's Arguments asto the Turtle Fisheries Dispute...... 71
E. Conclusions ...........................................................76...........
.............
CHAPTER 5:HONDURAN EFFECTIVITÉS AND SOVEREIGNTY
ÜVER THE ISLANDS .............................................................79.........
..........
A. Honduran Oil and Gas Concessions ................................................ 81
B. Honduras Regulates Fisheries Activities North ofthe 15th
Parallel ..............................................................85........
.....................
C. Honduran Cartography .................................................................... 94
D. Honduran Administration and Legislation in the Maritime and
Insular Areas North of the 15thParallel ........................................... 95
E. The Application and Enforcement of Honduran Civil and
Criminal Laws in the Area North of the 15thParallel.. .................... 98
F. Honduran Regulation oflmmigration ............................................. 98
G. Honduran Military and Naval Patrols and Search and Rescue ........ 99
H. Honduran Public Works and Scientific Surveys ........................... 101
I. Recognition by Third States and Other Entities ............................ 103
J. Conclusions ..........................................................105...........
........... vii
LIST 0}' COLOUR PLATES IN VOLUME 1*
Facing page
Plate 32 Map ofPetroleum Concessions, General
Directorate ofNatural Resources, Nicaraguan
Ministry ofEconomy, Industry and Commerce,
March 1969 ........................................................................
....
Plate 33 Extracts from "Petroleum Exploration Activities
inNicaragua" Reports, Nicaraguan Institute of
Energy, June 1994 and June 1995
a) Map ofOil and Gas Prospectivity in
Nicaragua (from Booklet of June 1994)
b) Map of Oil and Gas Prospectivity in
Nicaragua (from Booklet of June 1995) ................................ 62
Plate 34 Honduran Graphie Representation of Oil
Concessions Granted by Nicaragua
a) Union III and Union IV
b) Union V and Union VI
c) Combined Graphie Showing Area Granted in
Hectares ........................................................................
.......... 66
Plate 35 Location of Coco Marina within Honduran Oil
Concession Area..................................................................... 84
Plate 36 Location of Coco Marina Oil Concession
Granted by Honduras (within Territorial Waters
ofBobel Cay) ........................................................................
. 84
Plate 37 Geographical Features in the Maritime Area
Northeast of Honduras Referred to in the
Honduran Constitutions of 1957, 1965 and 1982
a) Constitution of 1957
b) Constitution of 1965
c) Constitution of 1982........................................................... 96
Plate numbers here continue from the Honduran Counter-Memorial of 21 March 2002
(Plates 1-31). Vlll
Plate 38 Limits ofFishing Areas Covered by Concession
Granted by Honduras to Empresa del Mar, S.A.
de C.V., 1975 ........................................................................
. 88
Plate 39 Limits ofFishing Areas Covered by Concession
Granted by Honduras to La Sociedad Mariscos
de Bahia S.A. de C.V., 1976.................................................. 88
Plate 40 Limits of Fishing Area Covered by Provisional
Permit Granted by Honduras to Mariscos de
Bahia S.A. de C.V., 1977.......................................................
Plate 41 British Admiralty Chart 2425............................................... 110
Plate 42 British Admiralty Chart 2425 showing the east
facing coastal features of Honduras and
Nicaragua ......................:...................................................... 112
Plate 43 Cape Gracias a Dios and the Offshore Area.
Location Map .......................................................................
114
Plate 44 Territorial Sea and 200 Nautical Mile Zone
Limits along the Honduras/Nicaragua
Traditional Boundary ........................................................... 116
Plate 45 Nicaraguan Line on British Admiralty Chart
2425........................................................................
..............
Plate 46 Satellite Analysis of Coastal Changes at Cape
Gracias a Dios (1979-2001) [Reproduction of
Plate 19 from the Honduras Counter Memorial].................. 126
Plate 47 The Honduran Line .............................................................. 128
Plate 48 The Honduran Line and the Provisional
Equidistance Line................................................................. 130
Plate 49 The Projection ofNicaragua's Caribbean
Coastline Is Not "Cut-off" by the Honduran Line ............... 132 CHAPTER 1:
INTRODUCTION
1.01. The Republic of Honduras submits this Rejoinder pursuant to the
Order of the Court of 13 June 2002 and in response to the Reply filed by
Nicaragua on 13January 2003.
1.02. In preparing this Rejoinder, Honduras has followed the injunction
in Article 49(3) of the Rules of the Court that "the Reply and Rejoinder ...
shall not merely repeat the parties' contentions, but shall be directed to
bringing out the issues that still divide them." Accordingly, Honduras has
not repeated the arguments set out in its Counter Memorial, although it has
been obliged by the strategy adopted by Nicaragua in its Reply to clarify
sorne of those arguments and respond to attempts by Nicaragua to
misrepresent the Honduran position. For the avoidance of doubt, except
where the contrary is clearly indicated in this Rejoinder, Honduras stands
by, and reaffirms, allof the arguments set out in its Counter Memorial.
A. THE SUBJECT OF THE DISPUTE BEFORE THE COURT
1.03. Itis important to recall that it is Nicaragua which has brought this
case before the Court by unilateral application and consequently has
defined the dispute which the Court is asked to determine. Nicaragua has
defined that dispute as one about the location of a single maritime boundary
between Honduras and Nicaragua in the Caribbean. Nicaragua has not
requested the Court to determine which State has sovereignty over the1
islands, rocks and cays immediately north of parallel 14°59.8' (and,
indeed, prior to the filing of its Memorial has not protested any activities
authorised by Honduras pursuant to its sovereignty over these islands, rocks
and cays). Having quite clearly (and, it must be presumed, deliberately)
chosen not to raise the question of sovereignty over the islands, rocks and
cays in its Application, Nicaragua cannot be allowed to introduce this issue
by the back door in any of its subsequent pleadings.
As in the Honduran Counter-Memorial, this will be referred to for the sake of simplicity
as"the 15thparallel" or "parallell5". 2
1.04. Nor has Honduras sought to widen the dispute before the Court. As
the Honduran Counter Memorial made dear, the arguments which
Honduras made regarding the importance of uti possidetis juris in respect
of the islands, rocks and cays north of the 15thparallel and the extensive
evidence which Honduras put before the Court regarding Honduran
effectivités thereon are relevant because they go to the question whether
there is a traditional boundary line along the 15thparallel between the
Honduran and Nicaraguan maritime spaces.
1.05. Accordingly, Honduras wishes to make dear that it understands the
dispute before the Court to be confined to the location of the single
maritime boundary in the relevant area and not to concem sovereignty over
the islands, rocks and cays. Nevertheless, the placement of that boundary
must give effect to - and cannot ignore - the established sovereignty of
Honduras over the islands north of the 15thparallel which Nicaragua now
daims.
B. THE NICARAGUAN CLAIM
1.06. Now that Nicaragua has laid all of its arguments and supporting
documentation before the Court, it can be seen that Nicaragua's daim for a
line to constitute a single maritime boundary -
(1) assumes that there is no existing maritime boundary, so that
the Court is invited to proceed as ifwriting on aean sheet;
(2) is based on the contention that the only way in which a
boundary can be drawn which will achieve an equitable
result is by the use of the bisector method advanced by
Nicaragua in its Memorial and repeated in the Reply;
(3) presents a distorted picture of the geography of the relevant
area in order to justify a line which could not be justified on
equitable principles if the true geographical position were
used.
As set out in the Nicaraguan Memorial, this approach completely ignored
both the effect of the islands, rocks and cays which lie to the north of the
15thparallel and disregarded the practice both of the parties and of third
States in relation to the islands and the surrounding maritime spaces and
continental shelf.
1.07. By contrast, Honduras demonstrated in its Counter Memorial that
there is an existing maritime boundary at the 15thparallel. Recognition of
that boundary is clearly reflected both in the practice of Honduras and
Nicaragua and that of third States. In marked contrast to the line advanced
by Nicaragua, this existing boundary also reflects and accords with 3
sovereignty over the many islands in the area, leaving all of the Honduran
islands on the Honduran side of the maritime boundary and all of the
Nicaraguan ones on the Nicaraguan side. By contrast, the line proposed by
Nicaragua would leave a large number of islands which are clearly
Honduran isolated within a Nicaraguan maritime space.
1.08. In its Reply Nicaragua feigns outrage at the approach taken by
Honduras. Itbegins by complaining that Honduras has failed to present an
argument based on the law of the sea. In fact, as Chapter 2 of this Rejoinder
makes clear, the Honduran case is finnly located in the principles of the
law of the sea and ret1ectsthe consistent jurisprudence of the Court and of
international arbitral tribunats to issues of maritime delimitation. If, as
Honduras has shown, there is an existing boundary at the 15th parallel, then
application of the principles of the law of the sea gives effect to that
boundary and there can be no question of those principles being employed
to substitute a different boundary on the basis that it might be more
equitable.
1.09. For that reason, Honduras devoted much ofits Counter Memorial to
setting out the evidence of effectivitéswhich established the existence of
the boundary at the fifteenth parallel. This evidence demonstrated, inter
alia, that Honduras had consistently exercised sovereignty over the islands
just to the north of the 15th parallel without any fonn of protest from
Nicaragua, bad granted oil concessions and licensed fishing activities in the
waters north of the 15thparallel (again without protest from Nicaragua) and
bad carried out all the normal acts of govemment (including the application
of its civil and criminallaw, the regulation of immigration, the conduct of
surveys and other public works and the operation of naval and military
patrols) that could be expected with regard to small islands and maritime
areas. Honduras also demonstratedthat there was a tacit agreement between
itself and Nicaragua regarding the use of the 15th parallel as the dividing
line between oil concessions granted by the two States.
1.1O. Although Nicaragua bad, in its Memorial, made for the frrst time a
claim to named islands north of the 15th parallel, it offered no evidence
whatever in support of that claim, which was plainly an afterthought which
Nicaragua advanced solely for the purpose of boosting its maritime claim.
Faced with the substantial body of evidence which Honduras put forward in
its Counter Memorial, Nicaragua has no3 attempted to put before the Court
material in support ofits own claim. Itis clear, however, that this evidence
is extremely weak and does not begin to compare with that offered by
Honduras. Moreover, the evidence falls very far short of that required to be
2
HCM, Chapter 6.
3 NR, Chapter VI. 4
demonstrated under international law, as reflected in the recent
jurisprudence of the Court. A detailed analysis ofNicaragua's evidence and
comparison with that set out in the Counter Memorial are to be found in
Chapters 4 and 5 of this Rejoinder.
C. NICARAGUA'S TACTIC WITH REGARD TO EFFECTIVITÉS
1.11. Nicaragua is obvious1y aware of the weakness of its claim with
regard to the effectivités and has therefore adopted the well-wom tactic of
seeking to minimise their importance so as to cover up this deficiency in its
case. It has attempted to do soin four ways:-
(1) by denying that the islands have any relevance to the
4
location of the maritime boundary;
(2) by advancing an argument regarding the critical date which
is designed to exclude ali evidence of anything which
5
occurred after 1977;
(3) by adopting a very narrow definition of what constitutes
material circumstances for the purpose of determining a
single maritime boundary and then seeking to exclude
6
everything which does not faUwithin that definition; and
(4) by ignoring the significance ofHonduran effectivités(and the
absence of its own effectivités) in favour of its proposed
bisector method. 7
The present Rejoinder will respond to each of these steps in Nicaragua's
reasoning. lt should, however, be said at the outset that none of them has
any merit.
(1) THE RELEVANCE OF THE ISLANDS
1.12. With regard to the first step, namely the sweeping statement that the
islands have no bearing on the delimitation, this is manifestly at odds with
the provisions of the 1982 Law of the Sea Convention, the jurisprudence of
the Court and considerations of principle. It is also at odds with
Nicaragua's belated efforts to address the islands, as reflected in three
Chapters of its Reply devoted to the issue of effectivités. Thus, it is well
4
A constant theme but one which is particularly evident in Chapter V of the Reply.
5 NR, paras. 1.26 to 1.27.
6
NR, Chapters III and V.
7 NR, Chapter IX. 5
established that, as a matter of principle, islands are to be taken into
account for the purposes of drawing a maritime boundary, a fact recently
reaffirmed by the Court in its decision in the Case conceming Maritime
Delimitation and Territorial Questions between Qatar and Bahrain
(2001).8
1.13. Nicaragua's response is to ignore these authorities completely and
to make the astonishing assertion that "both parties agree that the islands
and islets in the area haveno consequences on [sic] the delimitation of the
boundary line" (Reply, para. 1.19). Honduras has agreed nothing of the
kind, as even a cursory reading of the Honduran Counter Memorial would
indicate. The passage in the Counter Memorial on which Nicaragua seeks
to found this illusory agreement is the penultimate sentence of paragraph
7.28, which reads "Honduras does not use these islands as basepoints, and
claims neither shelf nor economie zone for the islands as such". That
sentence does not say that the islands have no consequences for the
determination of the boundary line, a fact which is evident if one reads the
whole paragraph:-
"Thus they are true islands within the meaning of Article 121 of
the 1982 United Nations Law of the Sea Convention and, except
to the extent that the traditional boundary precludes it, would be
entitled to a territorial seaof 12 miles. They demonstrate the
practicality of a boundary along the parallel, as claimed by
Honduras, and the complete impracticability of the boundary
claimed by Nicaragua. Their significance as relevant
circumstances is beyond doubt given their location, yet Nicaragua
seems to ignore them, making a sweeping assertion of sovereignty
over the islands, based on the Nicaraguan Constitution, but
offering no proof of the exercise of that sovereignty. And by a
series of lengthy citations to the jurisprudence, Nicaragua argues
that small, insignificant islands do not qualify as "basepoints"
where, being given "full-effect", they would distort a maritime
boundary. It is aUirrelevant. Honduras does not use these islands
as basepoints and claims neither shelf nor economie zone for the
islands as such. Its claim is based on its mainland and the long
history of an established, acceptedboundary."
1.14. Taken as a whole, this passage (and especially the part emphasised
above) makes clear that, far from Honduras agreeing that the islands have
no consequences for maritime delimitation, it has consistently asserted that
they are highly important both in relation to the evidence of the existence of
an agreed boundary and as relevant circumstances. It is simply that
Honduras is not advancing a claim that the islands each have their own
8
ICJ Reports 2001, para 195. 6
shelf and Exclusive Economie Zone. Each island does, of course, have its
own territorial sea.
(2) THE ALLEGED CRITICAL DATE
1.15. Nicaragua's second tactic- its critical date argument- is similarly
misconceived. In its Reply Nicaragua asserted, for the first time, that the
dispute regarding the maritime boundary "crystallised" in 1977 and that,
accordingly, all evidence of actions taken after this "critical date" should be
disregarded by the Court. It is doubtful whether the concept of the critical
date is of much value in a case like the present where the conduct of both
States go back a long way and are based on a pattern of practice
manifesting a tacit agreement between the parties. But even if the concept
is relevant here, it is well established that where the acts said to have
occurred after the critical date "are a normal continuation of prior acts and
are not undertaken for the purpose of improving the legal position of the
Party which relies on them", the Court will take them into account (see
Case concerning Soverei9nty over Pu/au Ligitan and Pulau Sipadan
(lndonesia/Malaysia).
1.16. That is plainly the case here, since the Honduran actions after 1977
are a continuation of acts before that date. The practice of granting oil
concessions, licensing fishing, the placing of geographical marker points in
the islands and the practice of both parties in using the 15th parallel as the
boundary for their respective oil concessions all have their origins well
before 1977.
1.17. The Court will also note, in this regard, the arbitrary nature of the
date selected by Nicaragua. While the Reply confidently asserts that 1977
is to be taken as the critical date, thisis the first time that Nicaragua has
made any such suggestion. A survey of the Nicaraguan Memorial will show
that 1977 is not accorded any fonn of special treatment. On the contrary, it
does not even constitute a critical dividing line for the chapters of the
Memorial, which treat 1979 as the dividing line.
(3) RELEVANT CIRCUMSTANCES
1.18. Nicaragua's desperate attempt to exclude from consideration those
matters in respect of which she knows her position to be weak by the
expedient of defining material circumstances as narrowly as possible is
similarly unconvincing. In this context, Nicaragua asserts that the grant of
oil concessions, the evidence of fishing activities and the practice of third
9
ICJ Reports2002,para 135. 7
States is ail irrelevant to the determination of a shelfboundary. Honduras is
not, however, making a shelf claim but endeavouring to show the location
of an existing single maritime boundary and provide evidence of its
longstanding sovereignty over islands and maritime spaces in the area now
claimed by Nicaragua. As will be demonstrated in Chapter 5, there is ample
support in the jurisprudence of the Court for the proposition that the grant
of oil concessions and the use by two adjacent States of the same line as a
terminus for their concession areas is highly relevant in this regard.
Similarly, the act of a State in licensing fishing activities (and it is that, not
the fishing activities themselves, on which Honduras relies) is plainly a
relevant circumstance in determiningthe location of a boundary.
1.19. While Nicaragua is right in asserting that treaties concluded with
third States are res inter alios acta and cannat, in and of themselves, be
determinative of the location of a boundary, they are relevant - as are other
instances of the practice ofthird States- when they manifest recognition of
title to islands or maritime spaces and where they serve to confmn the
existence of a tacitly agreed boundary.
(4) EQUITABLE PluNCIPLES AND AN EXISTING BOUNDARY
1.20. Finally, Nicaragua's insistence on the use of an artificial bisector
method to produce what it portrays as an equitableresult, irrespective of the
existence of a boundary based on practice and tacit agreement, is
unwarranted. Nicaragua has not been able to furnish a single instance of
this Court - or any other international tribunal - setting aside an existing
boundary evidenced hy practice over a long period of time in favour of the
application of equitable principles.
D. THE INEQUITABLE NATURE
OF NICARAGUA'S OWN APPROACH
1.21. Even on its own terms, Nicaragua's approach to delimitation would
not produce an equitable result. As will be demonstrated in this Rejoinder,
the Nicaraguan approach is seriously deficient in a number of important
respects. In particular, it is based on a manipulation of the geographical
position which is designedto obscure the true picture.
1.22. These matters will be addressed in detail in Chapters 6 and 7 of this
Rejoinder. At present, it is sufficient to highlight the following features of
the Reply:
(1) Nicaragua entirely fails to take into account that the
traditional boundary line is, in part, a boundary between the
territorial seas of the two States; 8
(2) it appears that Nicaragua no longer maintains its reliance on
the so-called "Nicaraguan Rise" as one of the bases for its
claimed line;
(3) on the other hand, Nicaragua appears to have revived an
argument based on the supposed projection into the sea of
the direction of the land boundary as a relevant
circumstance, a thesis which is at odds with the
jurisprudence of the Court and of other tribunats;
(4) the approach urged on the Court by Nicaragua entirely
ignores the islands, rocks and cays north of the 15thparallel,
irrespective ofwhether these are claimed by Nicaragua, yet it
is clear from the 1982 Law of the Sea Convention and the
jurisprudence of the Court that they cannot be dismissed in
this way;
(5) Nicaragua presents a distorted picture of the coastline which
is designed to minimise the significance and general
direction of the Honduran coast.
1.23. The result is that the line suggested by Nicaragua would produce an
inequitable result, even if it were possible to disregard the fact that there is
an existing boundary between the maritime spaces of the two States.
1.24. By contrast, as will be demonstrated in Chapter 8 ofthis Rejoinder,
the traditional boundary is equitable. Indeed, it is noticeable that an
equidistance line would be significantly more favourable to Honduras,
since it would lie to the south of th15thparallel.
E. THE STARTING POINT
1.25. Honduras, seeking to minimise the points of difference with
Nicaragua, can accepta starting point for the Court's line at 3 miles from
the terminal point adopted in 1962, rather than 12 miles from the coast, as
proposed in it Counter Memorial, but not premised on the bisector method,
which is contrary to principle. Honduras also recognises that continuing
changes in the geography of the mouth of the River Coco affects the initial
part of the boundary line and is prepared to negotiate a solution to be
agreed with Nicaragua from the terminus point adopted in 1962 up to the 3
mile point. This starting point and the line as a whole, along the 15th
parallel, is further considered and illustrated in Chapters 8 and 9. 9
F. THE STRUCTURE OF THE REJOINDER
1.26. In the light of the above considerations, the Rejoinder of Honduras
is organized as follows.
Chapter 2 shows that the approach taken by Honduras is
firmly located within the principles of maritime delimitation
in the law of the sea;
Chapter 3 responds to the arguments of Nicaragua regarding
the principle uti possidetis juris;
Chapter 4 responds to Nicaragua's case regarding its alleged
exercise of sovereignty over the islands, rocks and cays north
of the 15thparallel;
Chapter 5 addresses Nicaragua's critique of the evidence
submitted by Honduras regarding Honduran effectivités;
Chapter 6 responds to Nicaragua's argument regarding the
geographical factors;
Chapter 7 demonstrates the inequitable character of the line
proposed by Nicaragua;
Chapter 8 considers the Honduran line;
Chapter 9 summarises the Honduran case and is followed by
the formai submissions of Honduras. 11
CHAPTER2:
HONDURAS' CASE IN LAW
INTRODUCTION
2.1. It is apparent from the Nicaraguan Reply that Honduras and
Nicaragua are in agreement with regard to at least one matter, namely the
identification of the law applicable to the present case. In its Counter
Memorial, Honduras stated that:
"the law applicable to the case is [... ] the positive customary
international law of the sea, as reflected by the practice of States,
the relevant articles of the 1982 Convention, and the international
case law, beginning with the judgments of the International Court
1
of Justice."
Nicaragua made clear, in Chapter VIII of its Replr, that it concurred:
"In any case, both Parties agree at least on the sources of the rules
to be applied and it is then sufficient for the Court to take note of
the agreement of the Parties in this respect as it has often done in
the past."
Honduras agrees.
2.2. The Parties nevertheless draw very different conclusions regarding
the application of these legal principles to the facts of the present case. In
the main, these differences are not the product of divergent interpretations
of the applicable legal principles (although there are undoubtedly sorne
such differences). Rather, the differences between the Parties stem
HCM, p 60, para 4.8.
2
In particular at paras B.5and 8.6.
3 NR, p 169, para 8.6. 12
primarily from the fact that Nicaragua and Honduras start from opposite
assumptions as to the factual and legal situation prevailing in the region
with regard to the limits of their respective jurisdictions in relation to the
islands and maritime areas now claimed by Nicaragua.
2.3. Honduras bases its case on the fact that there exists a traditional
maritime boundary between the two countries which both States are
obliged to respect and to which the Court, in accordance with well
established principle and precedent, will give effect. That traditional
maritime boundary is constituted by a line starting at a point three nautical
miles due east of the point determined by the Honduras/Nicaragua Mixed
Commission as the terminus of the land boundary between the two States.
This terminal point of the land boundary should be joined to the starting
point by agreement of the Parties. But Honduras makes no daim to territory
south of the River Coco, so this sector, when agreed to by the Parties, will
circumvent Nica4aguan territory and territorial waters until it joins with the
starting point. From that point, the boundary follows aline lying just to the
south of the 15thparallel, at 14°59.8' north latitude until meridian 82. This
line is further considered in Chapter 8, below.
2.4. As demonstrated in the Counter Memorial of Honduras, this
traditional line has been established by the long and consistent practice of
both Parties and is entirely compatible with the applicable principles of the
modem law of the sea regarding delimitation. On the part of Honduras,
there has been a consistent display of effective 6overeignty and jurisdiction
throughout the area north of the 15thparallel. That sovereignty has been
manifested by a long-standing application and enforcement of Honduran
laws and regulations (including its civil and criminal legislation), regular
naval and military patrols and regulation of such matters as lobster fisheries
and the exploration for petroleum resources. 7 These Honduran effectivités
are further considered in Chapter 5 of this Rejoinder.
2.5. Moreover, the practice of Nicaragua regarding the 15thparallel also
points clearly to the conclusion that there is a traditionalline of delimitation
located there. It is striking that neither in its Memorial nor in the Reply has
Nicaragua been able to provide the Court with any evidence whatever of
the exercise of sovereignty and jurisdiction on its part in those areas north
of the 15th parallel to which it now lays daim. On the contrary, the
evidence clearly demonstrates that Nicaragua has not regulated oil, gas and
4 See para8.05 below.
5
As in the Counter-Memorial, this line will be referred to for conveniencee15th
parallel or parallel 15(HCM, para 1.4).
6
HCM, Chapter 7,p 137ffpara 7.15-7.25.
7 HCM, Chapter 6, p 87ff. 13
fisheries activities in this area. Indeed, oil concession practice by Nicaragua
reveals that Nicaragua has long accepted that it does not exercise
sovereignty and jurisdiction north of the 15thparallel, and it has accepted
without protest Honduran oil concession practice reaching south to the 15th
parallel. The absence: of Nicaraguan effectivitésis further considered in
Chapter 4 of this Rejoinder.
2.6. It may also be:noted that there is a consistent pattern of practice by
Third States showing that they also regard the area north of the 15thparallel
as being under Honduran jurisdiction. This is shown, in particular, by
relevant treaties conceming the region, beginning with the 1928 treaty
8
between Nicaragua artdColombia.
2.7. In contrast, faced with the evidence, Nicaragua invites the Court to
start from the premi that~there is no such traditionalline of delimitation.
Nicaragua tries to argue its case as if the Court were asked to settle a
dispute where the two Parties had not previously agreed on a line of
delimitation; Nicaragua argues as if there was an absence of any previous
practice demonstrating the longstanding agreementbetween the Parties on
a line, "de facto" respected by both Parties, until Nicaragua unilaterally
contended that she was not anymore bound by this traditionalline.
2.8. In order to avoid any reference to the reality of this "modus
vivendi", Nicaragua treats this case as if it were almost entirely an exercise
in dividing a geomorphological feature without reference to the coastlines
that face the maritime area to be delimited. Furthermore, Nicaragua
advances an argument whereby it is suggested that the Court can decide an
"equitable" boundary without reference to the situation consolidated by the
outcome of the Court's decision of 1960 in the Case concerning the
Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua) and without reference to a situation which existed
on the ground with the full acceptance of both Parties until Nicaragua itself
decided to interrupt it.
2.9. This approach by Nicaragua leads it to proceed in two ways. The
first consists in the arbitrary construction of a method of delimitation
combining geometry ("the bisector method") and taking into consideration
a doubtful geomorphological feature h10pily found to be located in the
place where it is precisely needed (although the latter seems to have
almost disappeared in Nicaragua's argument as further developed in its
8
Ibid at p 126 ff, para 6.68 to 6.75.
9 NM, p 95-122, para 20-83; NR, p 180-182, para 9.6 to 9. 15.
10
NM, p 6, para 5 and HCM, p 24-25, para 2.21-2.24. 14
Reply). 11The second way by which Nicaragua seeks to persuade the Court
to approach the question of delimitation "de novo" is based on a blinkered
but determined vision of the circumstances relevant to the case, whereby
five critical elements are to be ignored, namely:
1) Honduras' effective administration of the maritime area
(including the islands) northof the 15thparallel;
2) the consideration and due taking into account of the 15th
parallel as a"defacto" line subject to tacit agreement ofboth
States;
3) the fact that Nicaragua has confined itself to exercising
administration only south ofparallel15;
4) the existence of numerous boundary treaties circumscribing
the relevant area; and
5) the geographical circumstances that support the traditional
line applied by the Parties.
2.1O. Honduras must react to this biased strategy by Nicaragua. It will do
so by examining successively the legal relationship existing in this case
between sovereignty and delimitation (Section A) and the proper way in
which the principles and rules applicable to the delimitation of the maritime
area in dispute should be applied by the Court (Section B).
A. SOVEREIGNTY AND DELIMITA TION
IN THE PRESENT CASE
(1) NICARAGUA' S AMBIVALENT YET lNCONSISTENT POSITION
REGARDING THE ISLANDS NORTH OF THE 15TH PARALLEL (14°59.8').
2.11. In its Counter Memorial, Honduras has already drawn the attention
of the Court to the peculiar and unconventional treatment accorded by
Nicaragua in its Memorial to the issue of sovereignty over the islands north
of the 15thparallel. Immediately before setting out its Submissions to the
Court, the Nicaraguan Memorial devotes a special paragraph to what it
describes as "Islets and Rocks Claimed by Nicaragua". 12 This assertion by
Il
NR, p 180-182,para 9.6. to 9.15.
12 NM, p 166. At footnote 28 on page 68 of its Counter-Memorial, Honduras made the
following observation with regard to this odd presentation by Nicaragua's Memorial:
"it is to be noted that this section has the appearance of an afterthought, placed as it is
after Nicaragua has presented its main arguments, and in a form without paragraph
numbering". 15
Nicaragua (more as an after-thought than as argument) of purported
"sovereign rights" over the islands seemed to Honduras to be nothing less
than a surreptitious attempt "to transform a delimitation case into a
litigation on the attribution of sovereignty over insular territories". 13
Honduras had no option but to react to this line of argument as developed
by Nicaragua in its Memorial, and did soin its Counter Memorial. Further
to Nicaragua's Reply, Honduras maintains and confirms its earlier
submissions regarding the islands, not least because Nicaragua now clearly
recognises the central importance of the islands. The burden of proof is on
the party that alleges a right andNicaragua has failed to prove its claim.
2.12. In its Reply, ~icarag nouwa advances an entirely different line of
argument, notwithstanding that it has not withdrawn its "paper claim" to
the islands. Quite surprisingly, in its Reply, on the one hand it accuses
Honduras of being erroneously attached to a "territorial" and "sovereignty
14
related" claim line, while at the same time Nicaragua advances the
argument that it has itself a "title" to what it describes as the "islets"
located in the area north of the 15thparallel. 15Consequently, Nicaragua
devotes much16f Chapter VI of its Reply to the alleged basis of its claim to
the islands.
2.13. The inherent contradiction in Nicaragua's Reply is not the only
surprise. ln a quite remarkable passage, Nicaragua claims that both Parties
"consider that the islands or islets in the area have no effect on the
delimitation".17Ifthat is indeed so, then one is forced to ask why Nicaragua
devotes so much attention (in three separate Chapters of its Reply) to the
very issue ofNicaragua's claimed sovereignty over the islands north of the
15thparallel and why it accuses Honduras of attributing too much weight to
this issue. At one and the same time, Nicaragua presents the role of the
18
islands in the present case as being marginal but devotes much effort19o
convincing the Court that it owns these very same islands. The
inconsistency ofNicaragua's position is plain.
2.14. Two fundamental points must be made at the outset. The first is that
it is not Honduras but Nicaragua which has brought this case before the
Court. Honduras is not responsible for the wording of Nicaragua's
Application. Itis for Nicaragua to make its choice about how to formu1ate
13
HCM, p 68, para 4.32.
14 NR, p 20, para 2.21.
15
See, for instance, NR, p 92, para 6.4 and 6.5.
16 NR, Chapter VI, p 91ff, in particular Section II, p 126 to 139.
17
NR, p 10, para 1.17.
18 NR, p 10, para 1.19.
19
NR, p 126-139, para 6.88-6.118. 16
its case and, once it has done so, it must live with the consequences.
Nicaragua maintains that the delimitation of the single maritime boundary
should be made on the basis of its "geographical/geomorphological
"bisector method"; but it articulates, contrary to the strict formulation of its
Application and of its submissions, that it claims the islands north of the
15th parallel. Thus, its case is confused and suggests a case both on
delimitation of the maritime areas and on title to the islands over which
Honduras has long exercised authority pursuant toits sovereignty.
2.15. The second point is that it is absurd for Nicaragua to suggest that
the two countries concur in considering "that the islands or islets in the area
have no effect on the delimitation", particularly since Nicaragua's confused
case challenges Honduras' title to the islands. The basis for Nicaragua's
pretence is said to be paragraph 7.28 of the Honduran Counter Memorial.
What Honduras actually says there is that:
"[... ] Nicaragua argues that small, insignificant islands do not
qualify as 'basepoints' where, being given 'full effect' they would
distort a maritime boundary. It is all irrelevant. Honduras does not
use these islands as basepoints, and claims neither shelf nor
economie zone for the islands as such. Its claim is based on its
mainland and the long history of an established and accepted
boundary."
This argument is entirely logical and in no way sustains Nicaragua's
extraordinary suggestion that Honduras regards the islands as having no
effect on the delimitation. lts logic flows from the fact that Honduran
sovereignty over the islands (including, in particular, Bobel Cay, Savanna
Cay, Port Royal and South Cay) 20is one of the factors which led to the
establishment of an accepted boundary along the 15thparallel (in effect, the
fact of Honduran sovereignty over the islands and the existence of the
established boundary are two sides of the same coin). Moreover, the
existence of this established boundary means that Honduras does not need
to use the islands as basepoints in establishing a new boundary. To say that
is entirely different from saying that the islands have no effect on the
delimitation. Not only is this suggestion refuted by the role which the
islands have played in the establishment and maintenance of the traditional
boundary, but Honduras made clear (in the very paragraph of the Counter
Memorial on which Nicaragua relies) that:
"[The islands] demonstrate the practicality of a boundary along the
parallel, as claimed by Honduras, and the complete impracticality
of the boundary claimed by Nicaragua. Their significance as
relevant circumstances is beyond doubt, given their location[ ... ]".
20
HCM in particular p 140-141, para 7.26 to 7.28. 17
2.16. Nicaragua's suggestion that the Parties agree that the islands have
no effect on the delimitation is equally inconsistent with Nicaragua's own
position, as set out in its Reply. Far from treating the islands as irrelevant to
the delimitation ex•:!rcise, the reason why Nicaragua itself claims
sovereignty over the islands (although it is unable to demonstrate any actual
display of sovereignty over them) is precisely because the line of
delimitation it proposes attributes those islands to Nicaragua as something
of an afterthought.
2.17. Nicaragua is perfectly well aware of this elementary proposition.
Nicaragua wants the islands to be on its side, as part of its maritime zone
and territory. This is why, from the beginning, as demonstrated by the
formulation of its Memorial culminating in its appended paragraph at page
166,Nicaragua articulates a claim of sovereignty over:
"Hall Rock; South Cay, Arrecife Alargado, Bobel Cay, Port Royal
Cay, Porpoise Cay, Savanna Cay, Savanna Reefs, Cayo Media
Luna, Burn Cay, Logwood Cay, Cock Rock, Arrecifes de la Media
Luna, and Cayo Serranilla". 21
This claim is not put forward in the fmal "submissions to the Court" of
Nicaragua. Thus, its request for a single maritime boundary remains
ambiguous and equivocal. But it is for Nicaragua to clarify its case, not for
Honduras to do so on its behalf.
(2) THE LEGAL PRINCIPLES APPLICABLE TO THE ISLANDS
NORTH OF THE 15THPARALLEL (14°59.8').
2.18. Turning to the legal principles applicable to the islands and the
establishment of sovereignty over them, Honduras notes that Nicaragua
(despite the fact that it persists in referring to the islandss "islets") does
not contest the fact that aliof the relevant islands fall within the definition
of"islands" in Article:121ofthe Law of the Sea Convention. 22
2.19. Honduras and Nicaragua are not in agreement, however, on the
standards to be applied to establish title over the islands. Nicaragua relies
on limited and highly selective quotations from various international
arbitral awards, including the arbitral awards in the Island of Palmas case
and Eritrea/Yemen (Phase !), and the Judgment of the International Court
of Justice in theMinquiers and Ecrehos case. These appear intended to set
21
NM,p 167.
22 HCM, p 68, para, 4.30 (Nicaragua makes no reference to this paragraph in its Reply,
although it states that it doesonsider that it is necessary ... to establish if there are
any islandsn the area of relevance for the delimitation that faU under the delimitation
of rocks of article 121(3)" of the 1982 Convention: NR, para 3.18. 18
the bar at a high level for establishing sovereignty. But Honduras finds in
the quotations selected by Nicaragua no statement with which it could
disagree, nor does it find in these quotations any indication that they
support Nicaragua's case.
2.20. For example, it is not controversial that, in the words of the
Tribunal in the Eritrea/Yemen case that "[e]vidence of intention to claim
23
[islands] is an essential element of the process of consolidation of title".
Honduras has provided ample evidence of the basis for its title to the
islands in this matter, which Nicaragua has chosen to ignore. 24 By contrast
Nicaragua has not been able to provide evidence to the Court in support of
its recent claim. Honduras notes, as well, that Nicaragua has failed to
identify other parts of the Eritrea/Yemen Award which are pertinent. In
particular, it makes no mention of that Tribunal's clearly stated view that
where one is dealing with islands with "isolated locations and inhospitable
character" then "probably little evid25ce [of factual or persistent activities
on and around them] will suffice". These words are of direct relevance to
the present dispute.
2.21. Similarly, Honduras sees no reason to disagree with the view that
the mere act of buoying outside the reefs of a group of islands "can hardly
be considered as sufficient evidenc26of the intention of [a] Government to
act as a sovereign over the islets". Honduras has not made such a claim in
this case and fails to see the pertinence of Nicaragua's reliance on the
quotation given the extensive evidence of substantial and material activities
which Honduras set out in its Counter Memorial. Moreover, Honduras
cannat but agree that "the continuous and peaceful display of territorial
27
sovereignty ... is as good as title". This is precisely the Honduran
situation in relation to Babel Cay, Savanna Cay, Port Royal Cay and South
Ca y.
2.22. Honduras notes, however, Nicaragua's failure to make any
meaningful reference to severa! recent judgments of the International Court
of Justice which are directly on point and which fail to support Nicaragua's
argument as to what needs to be demonstrated to establish sovereignty over
small islands which are inhospitably located.
2.23. In the Case concerning Maritime Delimitation and territorial
Questions between Qatar and Bahrain the Court affirmed the established
23
Eritrea/Yemen Award (Phase 1), 114 ILR 1 (at para 239-241).
24
HCM, chapters 3, 6 and 7. See also the following chapters in this Rejoinder.
25 Supra n. 23, at paras 523-4.
26
Minquiers and Ecrehos case, ICJ Reports 195371.
27 Island of Palmas Case, RIAA, Vol Il, p 839. 19
principle that "an island ... should as su28 be taken into consideration for
the drawing of the equidistance line." Honduras referred to this judgment
in its Counter Memorial. The Court bad to decide which of the two States
29
bad title over the island in question (Qit'atJaradah). Bahrain claimed that
Qit'at Jaradah came under Bahraini sovereignty, since it bad displayed its
authority over the island in various ways, including "the erection of a
beacon, the ordering of the drilling of an artesian w30l, the granting of an
oil concession, and the licensing of fish traps." Qatar, on the other band,
contended that Qit'at Jaradah was merely a low-tide elevation which could
not be appropriated and that, since it was situated in the part of the
territorial sea which belonged to Qatar, Qatar had sovereign rights over it.
The Court accepted Bahrain's argument:
"Certain types of activities invoked by Bahrain such as the drilling
of artesian wells would, taken by themselves, be considered
controversial as acts performed a titre de souverain. The
construction of navigational aids, on the other band, can be legally
relevant in the case of very small islands. In the present case,
taking into account the size of Qit'atJaradah, the activities carried
out by Bahrain on that island must be considered sufficient to
31
support Bahrain'sclaim that it bas sovereignty over it."
2.24. The "activities" to which the Court was referring - "the erection of
a beacon, [...],the granting of an oil concession, and the licensing of fish
traps" - are precisely the same activities which Honduras bas carried out
over many years on and around Bobel Cay, Savanna Cay, Port Royal Cay,
South Cay and other islands. Nicaragua, on the other band, bas been unable
to put any evidence before the Court to demonstrate that it bas carried out
any of these activities on and around these and the other islands north of
15°N latitude. This is made clear in Chapter 4 of the Rejoinder.
2.25. The second case to which Nicaragua makes no reference (perhaps
because it was published too late to be included in Nicaragua's Reply) is
the Case conceming Sovereignty over Pulau Ligitan and Pulau Sipidan
28 Case concerning Maritime Delimitation and territorial Questions between Qatar and
Bahrain (Qatar v. Bahrain), ICJ Reports 2001, para 195.
29
According to a Bahraini Report at high tide the length and breadth of the island were
about 12 by 4 metres, whereas at 1owtide they were 600 and 75 metres, and at high tide
its altitude was approximately4 metres: ibid, para 197.
30
Ibid, para 196.
31 Ibid, para 197. At para 198 the Court recalled an observatione Permanent Court of
International Justice in the Legal Status of Eastern Greenland case, that: "It is
impossible to read the recordsof the decisions in cases as to territorial sovereignty
without observingthat in many cases the tribunhas been satisfied with very little in
the way of the actual exercise of sovereign rights, provided that the other State could
not make out a superior claim."CU, SeriesAIB, No. 53, p 46). 20
(lndonesia/Malaysia), two islands described by the Court as "very small
islands which are uninhabited or not permanently inhabited" and for which
"effectivités will indeed generally be scarce". 32 In this case the Court was
faced with competing claims asto effectivités.The principles it applied are
equally applicable in the present case and strongly supportive of Honduras'
claim. The Court made a number of preliminary observations.
2.26. As to the date of the acts, the Court observed that
"it cannat take into consideration acts having taken place after the
date on which the dispute between the Parties crystallized unless
such acts are a normal continuation of prior acts and are not
undertaken for the purpose of improving the legal position of the
Party which relies on them [...]. The Court will, therefore,
primarily, analyse the effectivités which date from the period
before .. the year in which the parties asserted conflicting claims to
33
Ligitan and Sipidan."
In the present case, this observation is directly relevant to Nicaragua's
assertions about the "critical date". Honduras is the Party in this case that
has maintained a consistent position throughout. It is Nicaragua which has
changed its position at a late date and yet seeks to introduce facts
subsequent to that time in support of its arguments. The Court's approach
in Indonesia/Malaysia means that no date bars Honduras' evidence, but
facts developed by Nicaragua after its change of position are not
admissible.
2.27. Asto the particularity of the acts the Court observed that
"it can only consider those acts as constituting a relevant display
of authority which leave no doubt as to their specifie reference to
the islands in dispute as such. Regulations or administrative acts of
a general nature can therefore be taken as effectivitéswith regard
to Ligitan and Sipidan only if it is clear from their terms or their
effects that they pertain to these two islands".34
It is apparent that administrative acts of a specifie nature which pertain to
inter alia Babel Cay, Savanna Cay, Port Royal Cay and South Cay may be
taken as effectivités, as can general acts the "effects" of which pertain to
these islands.
2.28. As to the nature of the acts, the Court observed that
32 ICJ Reports 2002, para 134.
33
Ibid, para 135.
34 Ibid, para 136. 21
"activities by private persons cannot be seen as effectivitésif they
do not take plac:e on the basis of official regulations or under
governmental authority." 35
Contrary to the position articulated by Nicaragua, therefore, it is plain that
private fishing and o1heractivities may be taken as effectivitéswhere they
take place "on the basis of official regulations or under governmental
authority". It is readily apparent from Honduras' Counter Memorial and
Chapter 5 of this Rejoinder that the evidence demonstrates clear
governmental authority on the part of Honduras in respect of fisheries and
other activities on and around the islands now claimed by Nicaragua.
2.29. As to the extent of the acts, the Court reaffirmed the position it had
adopted the previous year in the Case concerning Maritime Delimitation
and territorial Questions between Qatar and Bahrain relating to the
sufficiency of activities needed to establish sovereignty_3 The Court
reaffirmed that for very small islands activities such as the erection of a
beacon, the granting of an oil concession, and the licensing of fish traps can
be sufficient proof of sovereignty, given the circumstances. 37
2.30. On the basis of these considerations the Court found in favour of
Malaysia's claim. The activities upon which Malaysia relied were measures
to regulate and control the collecting ofturtle eggs, a licence permitting the
capture of turtles in the area including the islands, and the declaration of
one of the islands as a "reserve for the purpose ofbird sanctuaries", and the
construction of a lighthouse on each of the islands. The Court noted that the
activities relied upon by Malaysia were "modest in number but that they are
diverse in character and include legislative, administrative and quasi
judicial acts".38The Court also noted that Indonesia had never expressed its
39
disagreement or protest, which it considered to be unusual. As
demonstrated in Chapters 4 and 5 in this Rejoinder, Nicaragua has never
protested the exercise:of Honduran sovereignty in the area north of the 15th
parallel. To the contrary, it has expressly recognised this sovereignty, for
example in recognising Honduras' right to grant the Coco Marina oil
concession at a point on the 15thparallel.
2.31. A third recent case from the International Court of Justice is of
particular relevance on the question of oil concessions as evidence of
effectivitésand governmental intent. In the Case concerning the Land and
35 Ibid,para 140.
36
Ibid, para 147.
37 Ibid.
38
Ibid,para 148.
39
Ibid. 22
Maritime Boundary between Cameroon and Nigeria the Court reviewed its
jurisprudence in the period between 1982 and 1992 and summarised its
position as follows:
"Overall, it follows from the jurisprudence that, although 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, oil
concessions and oil wells are not in themselves to be considered as
relevant circumstances justifying the adjustment or shifting of the
provisional delimitation line. Only if they are based on express or
tacit agreement between the parties may they be taken into
account. ,,4o
2.32. Nicaragua is notably defensive about this Judgment, asserting,
without any indication of its reasoning, that Nicaraguan and Honduran
practice in relation to oil concessions in the relevant area pertaining to the
delimitation does not reflect any tacit agreement. 41Honduras does not agree
(see paras 4.24- 4.33, below). Honduras is content to adopt the approach
taken by the International Court in these recent judgments. As the Court
indicated in the Case concerning the Land and Maritime Boundary between
Cameroon and Nigeria, "the siting of their respective oil concessions may
indicate a consensus on the maritime areas to which they are entitled". This
is precisely what is to be checked and analysed in each case on its merits.
In the present case, as will be further demonstrated (see below at para.
4.33) the existence of a "modus vivendi" between the two Parties is readily
apparent from Nicaraguan and Honduras practice from 1965 to 1981. lt
reveals that the parties were in perfect agreement as to the location,
respectively, of their northem and southem oil concession boundaries. This
is perfectly reflected in official maps produced by Nicaragua in 1969 and
42
1995, which are now annexed to this Rejoinder.
2.33. This pattern of conduct has to be viewed in the context of other
manifestations of acquiescence by Nicaragua in the traditional line of
delimitation. These manifestations of acquiescence 43ve already been
indicated in the Honduran Counter Memorial and are not refuted by
Nicaragua in its Reply. Indeed, it is particularly striking to note that, even
at a time when Nicaragua contended that the 1906 Award of the King of
Spain did not determine the exact location of the terminal point of the land
boundary (Nicaragua claiming that it lay much further north of the River
40
ICJ Reports 2002, para 304.
41 NR, paras 7.22-7.23.
42
HR, Plates 32 and 33.
43 See in particular HCM, p 37-39, para 3.15 to 3.21; p 47, para 3.36. 23
Coco), Nicaragua did not try to display any act of sovereignty over the
islands north of the 15thparallel. This is confmned by the prudent silence
observed by the Nicaraguan Reply, which is unable to cite any evidence of
its purported effectivitéin the area in dispute, in particular during this
period.45
2.34. The position of Honduras regarding the presence of the islands
north of the 15thparaUelmay be summarized in the following way:
they are true "islands" in the sense of Article 121of the 1982
Convention on the law of the sea.6
these islands, which include the islands of Bobel Cay,
Savanna Cay, Port Royal Cay and South Cay are not (and,
in relevant times, have never been) "terrae nullius".On the
basis of the principle outi possidetis jurias confirmed by
subsequent eJTectivitésHonduras possesses a sovereign title
over these islands.
As stated by Article 121 of the 1982 Convention on the law
of the sea, eaeh of these islands is entitled to a territorial sea,
a continental shelfand a exclusive economie zone.
For achieving an equitable result, any delimitation must
respect the presence of these Honduran islands north of the
15thparallel.
B. THE.RELATIONSHIP BETWEEN LAW
AND EQUITY TO BE APPLIED TO THE DELIMITATION
2.35. As already stated above, the Nicaraguan method of delimitation is a
curious and unconvc~nt cimobination of geography, geometry and
geomorphology, deliberately ignoring the existence of a series of factors
highly relevant to the case. Itstarts by challenging the existence of a
boundary at the 15thparallel, north of which lies a maritime area under
effective Honduran jurisdiction,as Nicaragua has long tacitly but actively
recognized, in particular during the 1960's and 1970's (a boundary still
considered as such by third Parties interested in the region, including the
44
i.e. at least until 1960 if not 1963.
45 NR, p 73 at para 5.4, iii) and p 63-64, para 4.52 cited in footnote 181 at p 73.
46 HCM, p 67-68, para 4.28-4.32.
47
HCM in particular p 140-141, para 7.26 to 7.28. 24
United States, Colombia and Jamaica, and international organisations, l48e
the FAO, the UNDP and the Inter-American Development Bank) •
2.36. Between the two countries, the emphatic difference in perception of
the circumstances relevant to the case refers back, in reality, to a distinct
vision of the role of equity and equitable principles in the delimitation
requested from the Court.
2.37. In its Counter Memorial, Honduras has already insisted on one
point. It plainly recognizes the role to be played by equity in any maritime
delimitation, since the solution to be achieved must produce an equitable
result.49 Honduras has in particular referred to the famous statement of the
Court in the North Sea Continental Shelf Cases, according to which:
"[... ] it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires
the application of equitable principles". 50
Among the circumstances to be taken into account on the basis of the
equitable principles to be applied, Honduras then referred to:
the historie root of title in the principle uti possidetis juris;1
the Honduran effectivités in the islands and waters north of
1
the 15 h parallel;
Honduran sovereignty and exercise of jurisdiction over the
islands and surrounding waters north of the 15thparallel;
the acquiescence on the part of Nicaragua in the exercise of
sovereignty and jurisdiction by Honduras in the islands and
maritime spaces north of the 15th parallel (14°59.8'); and
the treaties resolving territorial questions and maritime
2
delimitations in the region. 5
2.38. The common denominator in the circumstances thus identified by
Honduras as being relevant lies in the fact that they are essentially of a
legal nature. They refer to the sources of the legal title possessed by
Honduras and to the respective conduct of Honduras, Nicaragua and Third
Parties with the legal consequences stemming from these conducts.
48
HCM, p 126-129, para 6.68-6.76.
49 HCM, p 64-67, para 4.18-4.27.
50
ICJ Reports 1969, p 47, para 85.
51 Which is deve1oped in Chapter 5 of its Counter-Memoria1 and further addressed in
chapter 3of this Rejoinder.
52 HCM, p 64-65, para 4.20. 25
2.39. In other words, the act of taking into account these relevant legal
53
factors is of absolute necessity; as said by the Court already in 1969 ,
equity is part of the law and cannot run against the law. This case is not one
where the Court would be asked to render justice ex aequo et bono, a
situation which never happened in the whole history of both the present
Court and its predecessor. Being part of the law, equity cannot ignore the
legal situation deriving from a long-standing"modus vivendi''.
2.40. To allow a State to unilaterally define a new policy designed to
reassess the "equitable" feature of a situation based on such long standing
agreement would encourage many other States to challenge situations
acquired and consolidated on the basis oflegal titles. Now, what Nicaragua
tries indeed to do in the present case is simply to ignore a tacit agreement
on a delimitation which characterized the quiet relationship among the
interested countries in the region.
2.41. Yet, as clearly demonstrated by the evolution of the Court's case
law, equity cannot be considered in isolation from the law. 54 As recalled by
Sir Robert Jennings, former President of the Court:
"Equity has not come to destroy the law but to fulfil it". 55
Sir Robert also declared, in the same spirit:
56
"Equity is distinguishable from law and yet part ofit".
2.42. Being "not rival but complementary," equity and the law cannot
be put in contradiction one with the other. As a consequence, the legal
factors characterising the situation in the concemed region can neither be
ignored nor neglected by the application of equitable principles. Equity, as
conceived in the jurisprudence of the Court cannot serve for overthrowing
old boundaries.
2.43. Itremains the case that the end-result produced by law and equity
complementarily applied must be, as such, an equitable one. In Honduras'
opinion, this means at least three things:
53 In the North Sea Cominenta/ ShelfCase, ICJ Reports 1969,p 47, para 85.
54
See in particular on this evolution P. Weil, L'équitédans la jurisprudence de la Cour
internationaledejustice, un mystèreen voie de disparition?, in Essays in honour of Sir
Robert Jennings, Fifty Years of the International Court of Justice, Cambridge
University Press, 1996, p 121-144, reprinted in P. Weil, Ecrits de droit international,
Paris, P.U.F., p 166-195.
55
Cited by P. Weil, op eit, in Ecrits de droit international, at p 184.
56 Ibid.
57
Sir Robert Jenning, Equity and Equitable Principles, 1986,p 28. 26
first, the application of "equitable principles" cannot justify a
departure from an existing boundary recognized in practice
over a period ofyears;
secondly, the application of "equitable principles" never
operates to validate the unilateral termination of, or
departure from, an agreement regarding sovereignty over
maritime spaces, even if that agreement was not put in
written form.
thirdly, equitable principlesdo not permit the adoption of a
line of delimitation which ignores the respective physical
relationship of the territory of the Parties in relation with the
maritime area to be delimited.
2.44. This is precisely the reason why, as stressed by Honduras at
paragraph 7.28 ofits Counter Memorial, from which it has been seen above
that Nicaragua drew completely erroneous conclusions, "Honduras does not
use these islands as base-points, and claims neither shelf nor economie
58
zone for the islands as such."
2.45. ln other words, reliance by Honduras on the sole traditional line,
itself deriving from its territorial titlei possidetis) and the long history of
an established, accepted boundary is strengthened and consolidated by the
fact that it produces an equitable result. In this regard, Honduras does not
"set aside the coastal geography of the region and the principal coastal
59
relationships", as Nicaragua claims. On the contrary, as will be seen
further at chapters 7 and 8, Honduras demonstrates that the traditional line
is in accord with the relevant geographical circumstances, while the
Nicaraguan approach does not respect the relevant coasts that face the
delimitation area. Thus, in Chapter 8 it is shown that the Honduran line
produces an equitable result, whereas in Chapter 7 it is shown that
Nicaragua's line does not do so.
2.46. Honduras maintains that each and every one of the relevant
circumstances which it stated in its Counter Memorial is determinant and
should not be ignored by the Court. Indeed, and without considering the
other circumstances as being less pertinent, Honduras wants to stress in this
respect the importance of the conduct of the Parties as well as that of Third
Parties for evidencing the validity of the traditional line of delimitation.
Nicaragua's acceptance of the traditional line until the Sandinista
58 HCM, p 141, para 7.28.
59 NR, p 15, para 2.1. 27
Government came to power is consequently a relevant circumstance, as is
the existence of other treaties circumscribingthe relevant area. 60
2.47. Honduras agŒes with Nicaragua when it says that "the role of
relevant circumstances is essentially to confirm the equitable character of a
line". Yet, it is the position of Honduras that the principle of respect for an
existing agreed boundary is the most relevant of all circumstances. Even
more so when, in a spirit of reasonableness and equity, Honduras asks only
for the respect of this line, without seeking to argue for a position of
maximum advantage: based on the islands over which Honduras
nevertheless exercises sovereignty.
60 HCM, p 47-51, para ::•.37-3.47. 29
CHAPTER3:
THE UTI POSSIDETIS JURIS
GENERAL OBSERVATIONS
1
3.01. In its Reply, Nicaragua attempts to minimize or even dismiss
altogether the application of the principle of theuti possidetis juriin this
case. To this end, on the one band Nicaragua ignores or manipulates
international jurisprudence in general, and particularly the jurisprudence of
this Court. On the other band, she conceals the importance of the
application of this principle to this specifie case.
3.02. Nicaragua's attitude is surprising, to say the least, because she bas
always accepted this title as the basis for her boundary delimitations in the
past. As established by the Judgment of 11 September 1992, in the case
concerning the land, island and maritime .frontier dispute (El
Salvador/Honduras; Nicaragua intervening):
"Itis evident that the Mixed Commission responsible for that
delimitation [of 1900] based its works on the land boundaries on
17thand 18th century titles, but simply took it as axiomatic that
''there belonged to each State that part of the Gulf or Bay of
Fonseca adjacent to its coasts" (Limites Definitivos entre
Honduras y Nicaragua, Honduran Ministry of Foreign Affairs,
1938, p. 24). Ajoint succession of the three States to the maritime
area seems in tht circumstances to be the logical outcome of the
principle of utipossidetis jurisitself."
3.03. Nicaragua ca.nnot successfully argue that equitable principles
preclude the applic3tion of theuti possidetisprinciple to the delimitation of
the maritime areas, because if the principle is accepted, so the equity of the
same must be accepted. In the words of a distinguished specialist,
NR, paras 4.1 to 4.68.
2 ICJ Reports 1992, pp 602, para 405.
3
NR, vol 1, pp 49, pam 4.2. 30
4
"everything that has been consented to freely is equitable," which means
that Nicaragua cannat bath accept and reject the principle according to its
interest, and that the invocation of an abstract equity cannat exclude the
5
applicable law. As this Chapter will demonstrate, the application of the
principle uti possidetis juris has been accepted in Central America
generally, and by Honduras and Nicaragua in particular, bath with regard to
island and maritime title. The chapter will also demonstrate that the
principle is applicable to the islands now claimed by Nicaragua, and
confirms that title to them is vested in Honduras. The conclusions are
summarised at paragraph 3.61 be1ow.
3.04. What Nicaragua obviously pursues is to displace the applicable law
in the present case invoking reasons of equity. In this regard it is
appropriate to recall the words used by the Chamber in the Frontier
Dispute (Burkina Faso/Mali) case:
"The Chamber would however stress more generally that to resort
to the concept of equity in arder to modify an established frontier
would be quite unjustified ... the obvious deficiencies of many
frontiers inherited from colonization, from the ethnie,
geographical or administrative standpoint, cannat support an
assertion that the modification of these frontiers is necessary or
justifiable on the ground of considerations of equity. These
frontiers, however unsatisfactory they may be, possess the
authority of the uti possidetis and are thus fully in conformity with
contemporary international law". 6
3.05. Nicaragua makes much of the confidence that Honduras places in
the Judgment rendered by the Court on 11 September 1992. Thatjudgment
is indeed of great importance for the current case, in view of the fact that it
was the first judgment rendered by the Court which specifically considered
the application of the uti possidetis to the countries of Spanish America.
3.06. As can be observed, the Court accepted, more than ten years aga, in
a very straightforward manner that the application of the uti possidetis iuris
to the maritime areas was fully compatible with the later evolution of the
Law of the Sea. In the final analysis, the land dominates the sea and it has
generated ab initio rights to the riparian State on its continental shelf,
4 A. Remiro Brot6ns, "Problemas de fronteras en América: La delimitacion de los
espacios marinas,"in A. Mangas Martin (Ed.La Escuela de Salamancay el Derecho
/nternacionalen América:Delpasado alfuturo,Sa1amanca, 1993, p 129.
5
ICJ Reports 1974, p 33, para 78.
6 Case concerning the Frontier Dispute (Burkina Faso/MaICJ Reports 1986, p 544 at
p 633, para 149.
7 NR, vo11, pp 59, para 4.39 and footnote 147. 31
having extended also its jurisdiction over other areas such as the exclusive
8
economie zone.
3.07. The surprising and unjustifiable scepticism towards the application
of the uti possidetis principle in the Nicaraguan Reply necessitates further
treatment of the following issues:
a) the essential characteristics of the principle in the legal
framework of Spanish America (Section A), based on the
opinions of experts presented in the Annexes to this
Rejoinder (Section B);
b) the application of the uti possidetis juris to the islands
and maritime areas (Section C);
c) the confinnation by the jurisprudence of the application
of this principle to islands and maritime areas
(Section D);
d) the acceptance by Nicaragua of the uti possidetis juris in
her Application against Colombia (Section E); and
e) Conclusions (Section F).
A. THE CHARACTERISTICS OF THE UTI POSSIDETIS JURIS
IN SPANISH AMERICA
3.08. In the Frontier Dispute case, a Chamber of the Court described uti
possidetis as "a principle of a general kind which is logically connected
with this form of dec:olonisation wherever it occurs". The Chamber noted
the origins of the principle in the decolonisation of Spanish America and
commented that:
"The essence of the principle lies in its primary aim of securing
respect for the territorial boundaries at the moment when
independence is achieved. Such territorial boundaries might be no
more than delimitations between different administrative divisions
or colonies su~je tot the same sovereign. In that case, the
application of the principle of uti possidetis resulted in
administrative boundaries being transformed into international
frontiers in the full sense of the term."
8
See ICJ Reports 1992.
9 ICJ Reports 1986, p 554 at p 566, para 23. See also the ample and detailed ana1ysis of
G. Nessi, L 'utipossidetis iuris ne/ Diritto Internaziona/e, Padova, 1996. 32
3.09. It follows that, in each case of colonial emancipation from a single
power, the presiding law of such succession on the territory will be the
internai body of laws of the predecessor State in order to delimit the
internai administrative circumscriptions that become States.
3.10. With regard to the Spanish uti possidetis, the Swiss Federal Council
declared in its judgment of 1922 in the case concerning boundaries issues
between Colombia and Venezuela that:
"This general principle offered the advantage of establishing an
absolute rule that there was not in the old Spanish America any
terra nullius."10
Similarly, the 1992 Judgment ofthe Chamber ofthe Court held that:
"Thus the principle of uti possidetis juris is concerned as much .
with title to territory as with the location ofboundaries; certainly a
key aspect of the principle is the deniai of the possibility of terra
nullius."11
3.11. Accordingly, with regard to the islands, ali those adjacent to the
continental territories belonged to Spain and ali automatically were
transferred to their Central American successors after 1821, except when
they were subject to claim by a third non-Spanish State, which was not the
case with any of the Honduran islands and cays. To ignore this fact is to
disregard the application of the principle of uti possidetis as it is embodied
in the Judgment of the Chamber of the Court of 11 September 1992.
Recognition of the equity of this solution is implicit in the continued
acceptance by Nicaragua and Honduras of the uti possidetis juris principle.
3.12. What has been said with regard to the islands is also applicable to
the Spanish territorial sea, which is transformed ipso facto and ipso jure in
the territorial sea, both continental and insular, of the new States after their
colonial emancipation.
3.13. Furthermore, in light of the fact that the Chamber in the Frontier
Dispute (Burkina Faso/Mali) case described uti possidetis as a principle of
a general nature unavoidably linked to decolonisation wherever it occurs, 12
it is indicative of the fact that it is not a principle exclusively linked to land
boundaries, but rather to decolonisation issues as a whole. The foregoing
implies, with regard to Spanish America, that it is applicable to ali the
borders and colonial areas as they were at the time of decolonisation.
10
UNRJAA, Vol I, pp 228.
Il ICJ Reports 1992, pp 387, para 42.
12
ICJ Reports 1986, pp 566, para 23. 33
3.14. In the same way, in the Guinea-Bissau/Senegal case, the arbitral
tribunal declared with regard to the application of the principle in Spanish
America that
"The question of succession of States in the matter of boundaries
acquired a very special importance in America during the
nineteenth century, because of the accession to independence of
the States born of the Spanish colonial empire. ln certain cases, the
new States decided by common agreement that the international
limits of their respective territories would be those which already
existed to mark the administrative subdivisions of the colonial
period. In other c:ases,the States claimed as part of their national
territory what had previously corresponded to a Viceroyalty, an
Audiencia or a Captaincy-General. In ali those cases, the ancient
colonial law ("derecho des Indias") was invoked to determine the
international boundaries between the new States. This method of
determining internatio13l boundaries is known under the name of
uti possidetisjuris."
Furthermore, it added that:
"In the Fonseca Bay case ... the Central American Court of Justice
decided that the limits with the high seas which the Crown of
Castile had established in that bay had devolved in 1821 on the
Federal Republie of Central America and subsequently to El
Salvador, Honduras and Nicaragua (Anales de la Corte de Justicia
centroamericana, t. VI,n° 16-18, pp. 100 et 131)." 14
Accordingly, the arbitration award of 31 July 1989, in the Guinea
Bissau!Sénégalcase linked the application in genere of the principle of uti
possidetis juris to decolonisation:
"From a legal point of view, there is no reason to establish
different regimes dependent on which material element is being
delimited." 15
3.15. In the El Salvador/Honduras: Nicaragua intervening case, the 1992
Judgment of the Chamber made two important assertions regarding the
application of the cited principle. First, the Chamber held that "the principle
of the uti po16idetis juris should apply to the waters of the Gulf as well as
to the land." Secondly, it held that:
13
83 ILR 1 at p 35, pam 61.
14 Ibid, pp 36-7, para 64.
15
Ibid, p 36, para 63.
16 ICJ Reports 1992, pp 589, para 386. 34
"The Chamber has no doubt that the starting-point for the
determination of sovereignty over the islands must be the uti
possidetis juris of 1821. The islands of the Gulf of Fonseca were
discovered in 1522 by Spain, and remained under the sovereignty
of the Spanish Crown for three centuries. When the Central
American States became independent in 1821, none of the islands
were terra nullius; sovereignty over islands could not therefore be
acquired by occupation ofterritory." 17
3.16. The attempts in the Nicaraguan Reply to deny the application of the
uti possidetis juris to maritime areas are, therefore, unfounded.
International jurisprudence leaves no room for doubt with regard to the
application of this principle to islands and waters adjacent to the coastline.
In accordance with the colonial practice on the matter, the Spanish Crown,
through a Royal Decree dated 17 December 1760, established an extensio18
of six maritime miles (two leagues) as Spanish jurisdictional waters, both
continental and insular. This is for reasons of safety and defence and also in
order to fight smuggling, something which was then quite common in the
Caribbean coastal areas. It is obvious, therefore, that succession in respect
of territory also included the islands and the jurisdictional water band that
on the critical date of 1821 existed along all the American coasts and the
adjacent islands of the Spanish Empire.
3.17. The approach to uti possidetis manifested in the case law is shared
(with the slight changes required by the Spanish particularism) by all the
authors who have studied the issue in the American area, who uphold the
19
maritime application of the uti possidetis juris. This is also the
interpretation of the most prominent specialists on the law of the Indies and
on the geography of the20panish Empire in that area; opinions that will be
analysed in detail infra. It is, therefore, difficult to see the basis on which
the Nicaraguan Reply can ignore the evidence and seeks to obscure these
well established principles.
17
Ibid, pp 558, para 333.
18 See the text in J. A. de Yturriaga (Ed.), Espafia y la actual revision del Derecho del
Mar. volIl, Primera Parte (Textos y Documentas), Madrid, 1974, pp 47.
19 Cf the positions of D. Bardonnet ("Frontières terrestres et maritimes", A.F.D.I., 1989,
pp 59 and following),G. Nesi ("Uti possidetis juris et délimitationmaritime", R.D.I.,
1991, pp 534 and following; L'utipossidetis ne! Diritto Internazionale, Padova, 1996),
and M.G. Kohen (Possession contestée et souveraineté territoriale. Genève, 1997, pp
590 and following).
20 See Annexes 266 and 267 to this Rejoinder. 35
B. EXPERT OPINION
3.18. An "Opinion on Spanish Captaincies-General and Governments in
the Historical Overseas Law. General Competencies. Its practice in lands
and seas belonging today to the Republic of Honduras", prepared by a 21
legal historian specializing in the Americas is annexed to this Rejoinder.
Itcontains a definitive analysis of this issue, which confirms the position of
Honduras before the Court.
3.19. First, with regardto the military districts and their maritime areas,
this opinion statesthat:
"Within the reforms introduced into the 18th century to that
Overseas Law and, more specifically, as a consequence of the
creation in 1739 of the Viceroyalty of New Granada (also named
Santa Fe de Bogota), two successive Royal Orders were issued
with the objective of improving the operation of the military
circumscriptions and logically, that ofits maritime areas.
A Royal Order dated 23 August 1745, created two military
jurisdictions, a northem one that ran from Yucatan to Cape
"Gracias a Dios" and a southem one, from the same Cape up to
the Chagres River. Such a decision added to the customary
govemment practice of Spanish authorities, resulted also in a
divisionof the competencies in the surrounding maritime area.
This division gave the Govemment of Honduras (Court and
Captaincy-General of Guatemala) jurisdiction over the Atlantic
area up to Cape "Gracias a Dios" and to the General Command of
Nicaragua- then a territory more oriented to the Pacifie than to
the Atlantic Ocean- the sea off "Costa de los Mosquitos" from
Cape "Gracias a Dios" towards the south. "Command" is a generic
term that means ;'chieftain".Applied to a territory it indicates an
authority subordinated in first instance to the Captain General, [of
Guatemala in this case] and in second to the Govemor.
Another Royal Decree dated 20 November 1803, confirmed that
geographical distribution by the designationof a Govemor for the
southem area (induding the island of San Andrés)and dependent
on the Viceroyalty of New Granada. Hence, this document
implicitly detennined that the northem area remained within the
territorial area of the Captaincy-General of Guatemala specifically
within the Govenunent ofHonduras.
21 Its author is Prof. Dr. JoséManuel Pérez-Prendes Mufioz-Arraco, and both his scientific
curriculum and the ccmplete texte opinion appear as Annex 266 to this Rejoinder. 36
It is clear from both texts that such provisions were developed
within the framework of the military regulation in force at the
time. Such decisions were commonly applied to Spain and
America during that era. This matter is sufficiently explained
under point 1)b) of this opinion." 22
3.20. Secondly, conceming the competencies of the Captaincies-General,
it is said that:
"That authority was exercised over land and sea in all territories
adjacent to coasts to prevent the threats and risks that the very
thorough legal regulation was intended to avoid. Even in the
unimaginable case (as we will see later, history showed otherwise)
that such competencies were not more than a mere declaration in
the text of the laws, such a declaration observed without
contradiction for so long and characterized with such great internai
coherence in its discourse, could be enough to transform it into a
valid legal title that empowers the current State, successor of those
areas, to have ample grounds to argue to its advantage the
argument of"uti possidetis juris" over its maritime areas.'m
3.21. Finally, after exhibiting the historical evidence on hydrographie
surveys, the selection of good ports (such as Puerto Cortés and Puerto
Trujillo), the construction of fortifications, repression of smuggling and
miscellaneous military actions against the Englishmen and the Mosquito
Indians in the coast and the sea of Honduras, to the north of Cape Gracias a
Dios, 24the Conclusions of the opinion establish that:
"1) The powers granted by Overseas legislation to the Captaincies
General, included, unequivocally and at ail times, the actions that
were considered timely on the part of those authorities in the
maritime areas, wherever those coasts and seas existed.
2) The Captaincy-General of Guatemala, to which the Govemment
of Honduras belonged, exercised the cited powers from
specifically Honduran ports.
3) Such exercise was constant from the XVI century up to the XIX
century, and it was especially fulfilled through the reconnaissance,
22
HR, vol 2, annex 266, Section 2 (where the competencies of the Govemors are
clarified, reflecting the faculties in a local area granted to the incumbent covering the
entire Captaincy-General).
23 Ibid, Section 3 and 4. The Captain-Generals of the Armies were specifically
empowered as Captain-Generals of the Navy and bad general control and decision
making power on ali militarforces under their circumscription, including, among
them, those related to the navy.
24
Ibid,Section 5. 37
control and defense of the area of the Atlantic Ocean that washes
ashore the current Republic of Honduras and specifically also in
the area of Cape Gracias a Dios.
4) The demarcations indicated for the cited exercise included both
land and maritime spaces, and it was a common understandingthat
these border lim:s that separated the corresponding land surface
areas, prolonged intothe sea.
5) lt has also been testified in this opinion how the islands
included in the maritime spaces cited in the previous conclusion,
feUunder the authority and power of the military authorities that
were quartered in the land that was considered prolonged
(following its land limits) into the maritime space that washed its
25
coasts.".
3.22. Thus, the Royal Order of 20 November 1803 reveals the explicit
will of the Spanish Monarch to establish the military circumscriptions
corresponding to the Captaincy-General of Guatemala and to the
Viceroyalty of Santa Fe in the Caribbean Sea. Accordingly, it constitutes a
perfect title in the senseof the origin and the proof of uti possidetis juris.
3.23. Cape Gracias a Dios represented this limit and had a maritime
extension eastward up to an undetermined point into the sea. Thus, all the
islands and waters located to the north and to the east of this Cape
corresponded to the military and maritime juris26ction of the Captaincy
General of Guatemala in the Atlantic Ocean.
3.24. Accordingly, all the misrepresentations of Nicaragua with regard
to the uti possidetis, in general, and to the Arbitral Award of 1906, in
particular, are unfounded and are expressly refuted by Spanish historical
law and by this State's conduct in the arbitration. The aforementioned
expert opinion confirms the thesis maintained by Honduras with regard to
the limit established in the said Arbitral Award and definitely confirms its
implicit maritime extension. It is true that the King of Spain resolved the
land boundary betwt:en the two States. But, in accordance with Spanish
historical law, his decision also inevitably affected the sovereignty on the
insular possessions and adjacent waters of the continent and of the islands.
In fact, Nicaragua unsuccessfully attempted-by virtue of the uti possidetis
juris which it now refuses to acknowledge-to have the arbitral award
recognize its sovereignty to the east ofmeridian 85°W, identifying the said
meridian as a terrestrial, insular and maritime limit with Honduras. Its
25 Ibid, Section 6.
26
See infra n. 37 and aecompanying annex 232.
27 NR, voll, pp 57 and following, para 4.30 and following. 38
conclusions before the Arbitrator on the last part of the layout of the border
did not admit doubt:
"elle [la limite] suit cette mêmerivièrequi s'appelle ici le Patuca;
elle continue par le centre du cours d'eau jusqu'à sa rencontre
avec le méridien qui passe au-dessus du cap Camar6n et suit ce
mèridienjusqu'à la mer, laissant au Nicaragua Swan Island".Z8
3.25. Thus, Nicaragua cannot ignore the Royal Order of 1803 and
maintain at the same time, without the minimum rigour, that "the only
possible conclusion would be the affirmation of the sovereignty of
29
Nicaragua" (over the adjacent islands). That is an artificial assertion.
History proves, in short, the extension of the Honduran government to the
north and to the east of Cape Gracias a Dios.
3.26. Renee the absurdity of the Nicaraguan argument conceming the
absence of effective control of the area under discussion on the part of
Honduras:
"At that time [1821] Honduras exercised no control over this area
or even areas further to the north and the west. Even the names of
the cays (Bobel Cay, Savanna Cay, South Cay....) do not reflect
the 1821 uti possidetis iuris. The later Honduran daims were
vague and, when they became specifie, controversial." 30
In addition to insinuating a peculiar linguistic way to prove the uti
possidetis, Nicaragua insists in disregarding the history and the law of the
colonial period, since in 1821 it would only have been possible to challenge
the uti possidetis on the islands by another demand from a third State
outside the colonial succession, that is a possibility that Nicaragua has not
even dared to suggest in this case.
3.27. Equally unfounded (and ignorant of the Spanish colonial law) is the
Nicaraguan assertion that "one cannot truly speak of any provincial
28
See "Rapport de la Commission d'Examen de la question des limites entre les
Républiquesdu Honduras et du Nicaragua, soumis à S.M. Alphonse XIII, Arbitre, le 22
juillet 1906"C.I.J. 1960, Mémoires,plaidoiries et documents, Affaire de la sentence
arbitrale rendu par le Roi d'Espagne le 23 décembre /906 (Honduras c.Nicaragua),
vol 1,Annexe no Il à la Répliquedu Honduras, p 624. English translation: " it [the
limit] follows this same river which named here Patuca; it continues by the centre of
the watercourse untiitmeets the meridian that passes above cape Camar6n and follows
this meridian up to the sea, leaving Swan Island to Nicaragua." This Nicaraguan
intentionis also textually embodied in the Opinion of the Spanish State Council, of 15
December 1906,that assumed the conclusions of the cited Commission (FiN° 94,446,
pp 3). See a graphie representationf the failed Nicaraguan attempt in HCM, vol 1,
Plate 9.
29 NR, vol 1,pp 60, para 4.40.
30
Ibid,pp 60, para 4.41. 39
31
maritime limits, and therefore, of any applicable uti possidetis iuris. It is
true that the delimitationof the insular and maritime areas of the military
competencies during colonial times exclusively concerned Viceroyalties
and Captaincies-G Nenvtrh elels. the Presidents of the Court of
Guatemala, created in 1543, assumed the functions of Captains-General,
and within their jurisdiction was located the Govemment of Honduras,
which had been established in 1525. In view of the Royal Order of 20
November 1803, already cited, by which the southern coastal area was
ascribed to the Viceroyalty of New Granada (the Mosquito Coast), from
Cape Gracias a Dios up to the Chagres River, it is obvious that this matter
concerned-in 1821, a critical date of colonial succession- the
competencies of a military nature (both land and naval) of the Captaincy
General of Guatemala and ofthe Viceroyalty ofNew Granada. 32
3.28. Equally unfounded is the Nicaraguan argument that "the Monarch's
orders to his Captains General and other authorities to oppose the piracy,
the corsairs and trade in contraband in a more or less defined geographical
area, by no means can be confused with acts of attribution of territorial
33
jurisdictions on the highseas" •Itis obvious that the King did not order an
extension of the competencies of the Crown on the high seas, but the
respective limits that its Captains General should respect when they acted at
sea, in accordance with the International Law of the time; the Crown, then,
established the internai administrative divisions in the colony, that is, the
legal basis and essence of theutipossidetis.
3.29. Regarding the fact that Cape Gracias a Dios, as a limit of a military
jurisdiction, was fundamentally identified during the colonial period with
parallel 15"N/ the Nicaraguan Reply attempts to discredit, without any
analysis, the importance of said parallel as a maritime limit. 35 What
Honduras contends is that the meridians and parallels or, if preferred, the
utilization of easily identifiable geographical criteria with parallels and
meridians, was not only usual in colonial Spanish practice whenever it
concerned dividing internai jurisdictions that also involved maritime areas
(as in our case). Honduras also contends that the only valid alternative for
clearly and unquestionably dividing the respective maritime areas of its
military authorities.
31
Ibidpp 66, para 4.60.
32 HR, vol 2, annex 266, Section 3. lt is well known that until the Royal Decree of 23
August 1745, Nicaragua did not become a coastal province of the Caribbean Sea: See
the Arbitral Award o:'1906C./.J. 1960, Mémoires,plaidoiries et documents, Affaire
de la sentence arbitrale rendue Roi d'Espagne le 23 décembre1906 (Honduras c.
Nicaragua),vol Annexe n• Iàla Réquêtedu Honduras.
33
NR, volt, pp 66, para 4.61.
34 HCM, vol1, pp 18 and 19,para 2.11.
35
NR, vol1, pp 56 to 59, para 4.26 to 4.37. 40
3.30. A Spanish geographer, an expert in the physical and political
geography of Spanish America, has prepared an opinion on the use of
astronomical geography both in the delimitation of its respective empires
by the lberian powers (Spain and Portugal) and in the colonial law of each
power. This study affirms that the utilization of parallels was frequent in
Spanish America to separate the competenc37s of the Spanish Captaincies
General and Viceroyalties in the area.
3.31. In the significant case of Brazil, Portugal decided to control the
most accessible area, the coast, proceeding to this end (1534-1536) to
distribute it in a series of captaincies that followed the coast line, with the
northem and southem limits of the land and of the sea of each captaincy
being two geographical parallels and the ultimate interior limit (toward the
38
continent) was the Tordesillas meridian.
3.32. With regard to the present case, in view ofthe role of Cape Gracias
a Dios, located at parallel 15°, as the starting point of the line that
conceptually and cartographically separated the land and naval
competencies between the Captain-General of Guatemala (who extended
his domains northward of this parallel and whose territories included what
is now the State of Honduras) and the Viceroy of Nueva Granada or Santa
Fe (that extended his toward the south, including the Eastern part of the
territory of the modem State ofNicaragua), it is necessary to conclude that
it constituted at the same time a simple and precise reference point for these
purposes. The Cape, and its corresponding parallel (15° N), delimited (in
accordance with the Indies law) the waters of the Captaincy-General of
36 HR, vol 2, annex 267 which is the opinion of Prof. Dr. Mariano Cuesta Domingo on
"The question of the Honduran rights in waters of the Atlantic Ocean", in addition to
his scientificurriculum. In particular see the heading on "Limits in the European
Expansion. Meridians".
37
See the map of the Viceroyalty of New Granada, safeguarded in the Naval Museum of
Madrid, which specifically illustrates the line of Cape Blanco (today Punta Pariiias),
very close to parallel 5° S, as the limit with the Viceroyalty of Lima: "Geographical
Plan of the Viceroyalty of St" Fe de Bogota, New Kingdom of Granada, that
demonstrate its territorial demarcation, islands, main rivers, provinces, main squares,
what is occupied by barbarian indians and foreign nations, demonstrating the two
borders of Lima and Mexico and of their neighbouring Portuguese establishments: with
historical notes on the annual revenue from their real incarne and news regarding their
current civil, political, and military status. Produced at the service Our Lord
by Dr. D. Francisco Antonio Moreno Escand6n, treasury auditor of the Royal Court of
St" Fe and incarne conservator judge. Governor of the Kingdom His Excellency Mr.
Baylio Frey D. Pedro Messia de la Cerda, Marquis of la Vega Armijo" (Ms; col;
147x200 cm., in MN Sig. 27-C-10 [1774]). HR, vol2, annex 232.
38
HR, vol 2, annex 267, under the "Parallels" heading; see in particular, the maps
attached to the Opinion. 41
Guatemala, and in addition that of the government of Honduras, clearly and
perfectly, and from any perspective, especially the legalperspective.
C. APPLICATION OF THE UTI POSSIDETIS TO THE ISLANDS
AND MARITIME AREAS NOW CLAIMED BY NICARAGUA
3.33. The continuous assertions in the Nicaraguan Reply of the
ineffectiveness of the uti possidetis principle for the attribution of
sovereignty over the adjacent islands, especially in view of what was40
decided by the King of Spain in his Arbitral Award of 1906, are
contradicted by the constitutional history of Nicaragua. Indeed, its
successive constitutional texts emphasize the constitutionally sacrosanct
nature of the uti possidetis, as well as the extension of the principle toward
the sea.
3.34. Thus, Article 2 of the Constitution ofNicaragua of 1826, stated that
the limits of the new State were:
"On the East, tht S~ea of the Antilles; on the North, the State of
Honduras; on the West, the Gulf of Conchagua; on the south, the
Pacifie41cean; ~md on the southeast, the free State of Costa
Rica."
The interpretation of the text is irrefutable, since it positions to the east of
the Republic only tht: Caribbean Sea, and Honduras unequivocally to the
north (obviously with its Caribbean coast), which proves the acceptance on
the part of Nicaragua of the colonial uti possidetis on the land and on the
sea with neighbouring Honduras, as has been stated in the previous heading
(Section B).
3.35. In this regard, Article 1 the Political Constitution ofNicaragua of
1911 states that its "territory, that also includes the adjacent islands, is
located between the Atlantic and Pacifie Oceans, and the Republics of
Honduras and Costa Rica," an assertion that is basically repeated in Article
3 of the Political Constitution of 1939 but adding the territorial sea to the
adjacent islands. Article 2 of the Constitution of 1948 expands on this
definition of national territory as one that includes "between the Atlantic
and Pacifie Oceans and the Republics of Honduras and Costa Rica, and also
encompasses the adjacent islands, the territorial sea, the continental shelf,
39 Ibid, Opinion, headings "The Central American Atlantic Coast" and "Application to
Honduras," in addition to the "Conclusion".
40
41 NR, voll, pp 51 and following, para 4.12 and following.
Cf the text of this Constitution. This and other relevant constitutional texts are at annex
233 to this Rejoinder. 42
and the aerial and stratospheric areas." This definition coïncides
substantially with the terrns used in Article 4 of the Constitution of 1950.
Article 3 of the Political Constitution of 1974 adds to the islands the cays,
the jetty-heads and the adjacent banks, to which Article 10 of the
Constitution of 1987 follows with a very similar formula, although the
latter refers only to "the islands and adjacent cays."
3.36. Finally, the practice of defining the national territory (including in
sorne cases the maritime areas) in reference to the principle of the uti
possidetis juris of 1821, either literally or in a clearly implicit manner, has
been forrnulated in a series of Nicaraguan Constitutions during the 19thand
20thcenturies. It has also even been included in the Treaty Gâmez-Bonilla
of 7 October 1894 (article II, paragraph 3), that led to the royal arbitration
of 1906.
3.37. Nicaraguan constitutional practice demonstrates that whenever
Nicaragua declared an adjacent insular and maritime extension in the
Caribbean, it was always in an eastern direction, never northward; this
means that it recognized that the land boundary with Honduras had, since
colonial times, a West-East maritime projection. This was also ratified by
the Arbitral Award of 1906 when it states that in 1791 the province of
Honduras was delimited "on the south with Nicaragua, on the south-west
and west with the Pacifie Ocean, San Salvador, and Guatemala; and on the
north, north-east, and east with the Atlantic Ocean, with the exception of
that part of the coast i2habited at the time by the Mosquito, Zambos, and
Payas Indians, etc.'.4•Accordingly, the previous texts forrnally contradict
the position of the Nicaraguan Reply on the insular vicinity and on the
43
insular and maritime effects of the utipossidetis.
3.38. The same pattern can be detected in the constitutional history of
Honduras, as evidenced by the Constitutions of 1839, 1848, 1865, and
1873, ali of them using the same phrase, as a matter of style, defining the
territory of the new Republic ("and the islands adjacent to its coasts in both
44
seas").
42
See the Arbitral Award of 1906 in C.I.J. 1960, Mémoires,plaidoiries et documents,
Affaire de la sentence arbitrale rendu par le Roi d'Espagne le 23 décembre 1906
(Honduras c.Nicaragua), vol 1,Annexe noIl à la Requétedu Honduras, page 20. See
also the cited Examination Commission Report (C.I.J. 1960, Mémoires,plaidoiries et
documents,vol 1,Annexe noXI à la Répliquedu Honduras, pp 729 infine-730).
43
NR, vol 1,pp 59 and following, and 65 and following, para 4.38 and following and para
4.58 and following.
44
See L.Mariiias Otero,"Las Constituciones de Honduras", Madrid, Ediciones Cultura
Hispânica, 1962, pp 94 (Art.4 of the Constitution of 1839), 118 (Art.4 of the
Constitutionof 1848), 146(Art.5 of the Constitution of 1865) and 17(Art.4 of the
Constitution of 1873). 43
3.39. If "la législation est l'une des formes les plus frappantes de
l'exercice du pouvoir souverain'.4 const,tutional legislation implies the
highest expression of this exercise in order to determine the official
position of a State. Hence, the constitutional history of Nicaragua reveals,
without any doubt, her acceptance and express recognition of the uti
possidetis of 1821 in the definition ofher national territory, a defmition that
since 1939 expressly includes the territorial sea, which has been expanded
to the new maritime areas created during the second half of the last century.
3.40. Nicaragua's position, as set out in the Reply, appears to rest on the
following propositions:
a) that Honduras could not prove its title derived from the uti
possidetis over the islands, islets and cays located to the
46
north of the l5th parallel, which are scarcely populated. In
fact, there is ample evidence, set out in the Counter
Memorial and further discussed in the present Rejoinder
which establishes the title of Honduras. By contrast,
Nicaragua does not make any effort to explain and prove the
title which it now claims.
b) that the concept of adjacent islands is ambiguous and,
47
therefore, unacceptable. This argument is surprising, to say
the least, as one of the most eloquent defenders of
Nicaraguan claims to San Andrés and Providencia strongly
defends the adjacency thesis, with regard to islands south of
Cape Gracias a Dios. 48 The argument is, that in view of the
jurisprudential principle of the non-existence of terra nullius
in Spanish America, the attribution of sovereignty of the
Spanish islands and cays following the emancipation in
1821, should be based on application of the principle of
adjacency, taking Cape Gracias a Dios as the limit of
49
reference.
45 C.P.J.l. sérieA!B n• 53pp 48. English text: "Legislation is one of the most obvious
forms of the exercise of sovereign power".
46 NR, vol 1,pp 59-60, para 4.38 a 4.40, and pp 65, para 4.57. Nicaragua even ventures to
say that"the only possible conclusion would be the affirmation of the sovereignty of
Nicaragua" on the islands (pp 60, para 4.40), without submitting the slightest minimum
ofproof.
47 Ibid,pp 61, para 4.43.
48
L. Pasos Argüello, Enclave colonialista en Nicaragua, Diferendo de Nicaragua y
Colombia, Plataforma continental, ArchipiélagoSan Andrés, Cayos.Managua, 1978,
pp 34 to 36.
49
This reference to insular adjacency, both during the colonial period and in the
constitutional texts already examined, canseen in the well-known work of A. R.
VallejoHistoria documentada de los Limites entre la Repliblica de Honduras y la de 44
c) that Honduras seeks, without any legal basis, to apply the uti
possidetis principle directly to the continental shelf and
50
exclusive economie zone. This assertion misrepresents the
Honduran argument and ignores the importance of the uti
possidetis principle with regard to sovereignty over the six
nautical mile belt of jurisdictional waters which existed (at
least as between the successor States to Spain) in 1821. In
this context it is noticeable that Nicaragua largely ignores the
Royal Order of 1803.
3.41. With regard to land boundaries which terminate at the coast, the use
of limits that coïncide with meridians and parallels has been traditional
between the two countries in their historical negotiations. 51 lt is
incomprehensible that Nicaragua now adopts a radically divergent position.
Strictly speaking, the Royal Order of 20 November 1803 constitutes an
example of "title" that "might be furnished by, for example, a Spanish
52
Royal Decree attributing certain areas to one of those" countries. The
great importance of this royal law is based on two elements. First, it
separates the territorial competencies along the Caribbean coast of two
Captaincies-General, each of which, as is well known, exercised military
authority both on land and at sea; in the specifie case the objective of the
change of military circumscription was to defend the coast and the adjacent
islands from the English corsairs and pirates that prowled the area. 53
Secondly, Cape Gracias a Dios was adopted as the Spanish administrati54
military limit in its land and--especially-maritime extension.
Nicaragua. New York, 1938, pp 36, although a complete reading of this work is highly
useful for ali the aspects discussed here, that the Nicaraguan Reply insists on refuting.
On this same kind of issues-amply debated and settled almost a century ago-we
would like to recall the document Limites entre Honduras y Nicaragua. Alegato
presentado a Su Majestad Cat6lica el Rey de Espaiia en calidad de Arbitra por los
Representantes de la Republica de Honduras, Madrid, March 1905, pp 53 and
following. In both cases it concerns texts already submitted to this Court in previous
proceedings of Honduras with El Salvador and Nicaragua, and the persistence in our
quote is explainedby Nicaraguan obstinacy in contesting concepts already known and
judged. See the opinion of an expert in the matter on the islands adjacent to the
Nicaraguan territory of Mangle and Mosquito in G. IrelandBoundaries, Possessions
and Conjlicts in Central and North America and the Caribbean, Cambridge,
Massachusetts, 1941, pp 329 to 331.
50
Ibid,pp 66-67, para 4.62 to 4.64 and 4.66.
51 See the neutra! and specialized testimony of G. Ireopncit., pp 130 to 136.
52
ICJ Reports 1992, pp 389, para 45.
53 These characteristics of the Royal Order are accepted naturally by the Nicaraguan
specialized doctrin(cf L. Pasos ArgüelloEnclave colonialista en Nicaragua..., supra
n 48, pp 27 to 35).
54 On this kind of issues the very detailed Colombian position with regard to the Royal
Order of 1803 is also very enlightening (cf D. Uribe Vargas, Libro Blanco de la
Republica de Colombia, 1980, pp 17 and following; C. Moyano Bonilla, El 45
3.42. Thus, what is really relevant to Honduras is the evidence that
Spanish colonial legislation considered Cape Gracias a Dias not only as a
land limit between twn provinces, but also as a maritime limit between two
Spanish Captain-Generals and their respective fleets strictly for the
Caribbean Sea, because, as is well known, the coasts of Nicaragua in the
Pacifie Ocean remained under the jurisdiction of the Captaincy-General of
Guatemala. lt should. not be forgotten that the frequent Spanish naval
expeditions, to and from the metropolis, required effective protection from
pirates, corsairs, and fleets of enemy countries. For example, the Spanish
Crown created the harbour and fortress of Omoa on the northern coast of
Honduras "that could serve as a customs station as well as a coastguard
base, and military bastion" 55, "to permit patrolling the adjacent coasts" 56
and "to57urtail contraband by patrolling the coast with vessels based
there."
3.43. In short, the limit of the colonial circumscriptions that decisively
affects our case is the one ordered by the King of Spain in 1803, for strictly
military purposes, be:tween two of its Captain-Generals. The provincial
limits within each Captaincy-General were not important because each
Captain-General had complete military powers (land and naval) within their
jurisdiction; those provincial limits were relevant when the provincial and
the military limits coi:ncided,as it happened in this case.
D. JURISPRUDENCE CONFIRMS THE APPLICATION OF THE
PRINCIPLE: TO ISLANDS AND MARITIME AREAS
3.44. The complete Chapter IV of the Nicaraguan Reply constitutes a
systematic exercise to manipulation of international jurisprudence to the
present case, througb silence, the use of selective quotes, omissions and
totally fallacious assertions.58
Archipiélagode San Andrés y Providencia. Estudio hist6rico-juridico a la luz del
Derecho lntemacional, Bogotâ, 1983, pp 39 and following). Although the Nicaraguan
and Colombian position is contradictory with regard to this Royal Order, neither
them doubt thatCap· Gracias a Dios separated military competencies (maritime and
1and-based)of two Spanish Captain-Genera1s, something indisputable to any person
weil versed onSpani colonial military law.
55
Troy S. Floyd, The Anglo-Spanish Struggle for Mosquitia.The University of New
Mexico Press, 1967,p 105.
56
Ibid,p 106.
57 Ibid,p 107.
58
See for example the ddiculous and deformed reference of the Nicaraguan Reply to the
arbitration decision 1989 in theGuinée-Bissau/Sénéga case, in NR, vol 1, pp 67,
para 4.63. 46
3.45. It is useful to begin by recalling an old arbitral award rendered by
Queen Isabel II of Spain on 30 June 1865, in the case of the Isla de Aves
(NetherlandsNenezuela), in which she decided in favour of Venezuelan
sovereignty using, among others, the following argument:
"Considérantqu'à son tour le Vénézuelafonde principalement son
droit sur celui qu'avait l'Espagne avant la constitution de cette
Républiquecomme Etat indépendantet qui, s'il resulte bien que
l'Espagne n'a pas matériellement occupé le territoire de l'île
d'Aves, il est indubitable qu'il lui appartenait comme faisant partir
des Indes Occidentales qui étaientsous la domination [dominio]
des rois d'Espagne, conformémentà la loi I, titre V, livre I de la
Recopilacion des Indes." 59
60
3.46. As has been recognized by a Spanish specialist, this case did not
specifically concem an island close to the coast, densely populated and
with great economie activity. It concemed an island that was located five
hundred kilometres to the north of Margarita, two hundred kilometres to the
west of Dominica and three hundred kilometres to the southwest of Puerto
Rico, and had little more than a half kilometre in length and a maximum
width of 150 meters. Accordingly, since the 19th century the principle of
the uti possidetis juris has been applied to small Spanish islands, located a
great distance from the coast and with minimum economie activity. It is
therefore difficult to see how Nicaragua can now assert, one hundred and
thirty years later, that "no island Uti possidetis Iuris exists in the area in
dispute"? 61
3.47. It is noteworthy that the 1917 Judgment of the Central American
Court of Justice also admitted without any difficulty that the three riparian
States of the Gulf of Fonseca (El Salvador, Honduras and Nicaragua) had
succeeded to the rights of the Spanish Crown over maritime areas adjacent
to their territory. This judgment constitutes an explicit recognition of the
maritime extension of uti possidetis, and its content was the subject of a
59
The text in A. de La Pradelle and N. PoliRecueil des Arbitrages Internationau2e
édition, tome deuxiéme (1856-1872). Paris, 1957, pp 414. The English version in
Moore, International ArbitrationWashington, 1898, vol V, pp 5037-5041. English
translation:Whereas Venezuela on her part, mainly bases her right on the one that
Spain had before the constitution of this Republic as independent State and, though it
turns out thatpain did not materially occupied the territory of the island of Aves, this
undoubtedly was a partof the West lndies that were under the domain [dominic] of the
Kings of Spain, in accordance with the law 1, title V, book 1 of Recopilaci6nof
Indies."
60
A. Remiro Brot6ns, "Problemas de fronteras en América:La delimitaci6n de espacios
marines", in A. Mangas Martin (Ed.), La Escuela de Salamanca y el Derecho
Jnternacional: Delpasado alfoturo,Salamanca, 1993, pp 132.
61 NR, vol1, pp 59 and following, para 4et seq. 47
thorough analysis by the Chamber of the Court in 1992. It is, therefore,
difficult to see how Nicaragua can now argue that63no maritime uti
possidetisjuris exists in the area in dispute", when Nicaragua is a party to
this decision.
3.48. In the case conceming the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Judge Ago had already wamed, in his individual opinion,
about the importance for the parties to that case of the delimitation made by
the predecessor colonial powers before the date of independence. 64 In this
same case, after having recalled the resolution adopted within the then
Organization of African Unity in Cairo in 1964 on the principle of respect
by African countries for the borders inherited from the colonial powers,
Judge Jiménezde Aréchaga(who was undeniably an authority on the uti
possidetis principle in America) declared in his individual opinion that:
"It results from the foregoing that both principles of international
law invoked by Tunisia in the above memorando, namely, the
colonial uti posYidetis agreed by the African States and the
principles of State succession compel respect for the delimitation
65
resulting from tht:French-Italian modus vivendi."
3.49. lt is obvious that neither ofthese two distinguishedjudges shared
in 1982-the Nicaraguan thesis that the doctrine has no application to
adjacent islands and maritime areas.
3.50. In the Guinea-Bissau/Senegal case, the arbitration tribunal faced
tenacious resistance on the part of Guinea-Bissau to the application of uti
possidetis or of the succession o66States with regard to treaties to the
delimitation of maritime areas • In certain aspects, this evokes the stance
maintained by Nicaragua in its Reply. The arbitral award of 1989, after
recalling the application of such principles to maritime areas in America,
Asia, and Europe, drew attention to the invocation in the Arbitration
Agreement in the case of the 1964 declaration of the O.A.U. (referred to
above). Itthen commo;:nted that:
62
ICJ Reports 1992,pp 590 and following, para 388 and following.
63 NR, voll, pp 65 and following,para 4.58 and following.
64
"The existence of a delimitation extending beyond the outer limit of the territorial
waters, a delimitation which for four decades prior to the accession two States to
independence was respected without any difficulty arising, should,feel, have been
considered as the basic fact which was also incumbent upon theties to observe after
independence, by vi:rtue of the same principles of general international law in the
successionof States, .mdthe same principles proclaimed by the Organization of African
Unity, which the Court has evoked where the land frontier of 1910 is concemed": ICJ
Reports 1982,pp 97-98, para5.
65 Ibid, pp 131,para 100 and 101.
66
83 ILR 1 at 3et seq. 48
"Since that Arbitration Agreement concemed only the delimitation
of a maritime boundary, the reference quoted means that the two
Parties recognized that that principle was applicable to boundaries
of that category. In oral argument also in that same arbitration,
Guinea-Bissau also acknowledged that succession of States
operates in respect of treaties on maritime boundaries. (Pleadings,
67
verbatim record, n° 8, pp 76 et 77)."
3.51. This arbitration award thus has the merit ofplacing the issue both in
the area of the maritime uti possidetis, as well as in the dominion of the
succession of States with regard to treaties, to arrive at an identical material
solution: the succession in the maritime limits of colonial borders. Can
Nicaragua still persist in its refusai to apply the principle of the uti
possidetis or else the rules on succession of States with regard to territorial
sovereignty to the Caribbean coasts? 68
3.52. The most complete, systematic and clear decision with regard to the
application of the uti possidetis juris to the insular maritime areas in the
specifie context of Central America is the Judgment of the Chamber of the
Court of 11 September 1992. The jurisprudential application of this
principle in the 1992 Judgment among Central American countries to the
insular69 and maritime 70 areas is not open to debate, despite Nicaraguan
protestations to the contrary.
3.53. However, the most important contribution of the Court has been the
manner in which it proceeded to harmonize the 19thcentury uti possidetis
with the subsequent evolution of the Law of the Sea. Land, territorial sea,
continental shelf, and other areas constitute only different aspects and
extensions of territorial sovereignty. For this reason, the Court decided that:
"...the legal situation of the waters outside the Gulf is that, the
Gulf ofF onseca being an historie bay with three coastal States, the
closing line of the Gulf constitutes the baseline of the territorial
sea; the territorial sea, continental shelf and exclusive economie
zone of El Salvador and those ofNicaragua offthe coasts ofthose
two States are also to be measured outwards from a section of the
closing line extending 3 miles (1 maritime league) along that line
from Punta Amapala (in El Salvador) and 3 miles (1 maritime
league) from Punta Cosigüina (in Nicaragua) respectively; but
67 Ibid, p 38, para 66.
68
Cf. in this regard, on these two alternative ways, the Rapport of the "Committee on
Aspects of the Law of State Succession", I.L.A., New Delhi Conference (2002), 574-
658, pp 610-613.
69
ICJ Reports 1992, pp 558, para 333.
70 Ibid, pp 589, para 386. 49
entitlement to tt!rritorial sea, continental shelf and exclusive
economie zone seaward of the central position of the closing line
appertains to the t71ee States of the Gulf, El Salvador, Honduras
and Nicaragua ..."
3.54. The aforementioned jurisprudence, notwithstanding that it is
sufficiently meaningful, coherent and coïncident in the application of the
uti possidetis juris for the determination of maritime limits and the solution
of Spanish American insular disputes, is dismissed in the Nicaraguan
Reply. That Reply i.s limited to a few selective quotations from the
jurisprudence which do not take into account the essential reasoning of
72
various courts, and are no more than phrases, taken out of context, that
Nicaragua thinks are favourable to its position.
3.55. The Court has emphasized, finally, the existing relations between
the uti possidetis }uns and the reciprocal conduct of the new States after
their independence, as weil as their ability to generate legal consequences.
Both aspects are relevant in the present case.
3.56. In the first place:
"Possession backed by the exercise of sovereignty may be taken as
evidence confimting the uti possidetis juris title... in the case of
the islands, whe:re the historical material of colonial times is
confused and contradictory, and the accession to independence
was not imme:diately followed by unambiguous acts of
sovereignty, this is practically the only way in which the uti
possidetis juris could find formai expression so asto be judicially
recognized and determined.'m
3.57. On the other hand, the conduct of the Parties with regard to the
islands, after independence, may manifest the existence of acquiescence
with regard to sovereignty on the same:
"The conduct of Honduras vis-à-vis earlier effectivitésreveals an
admission, recognition, ac74iescence or other form of tacit
consent to the situation" •
Indeed, with regard to the dispute over Meanguera island, the Court
concluded that "while the uti possidetis juris position in 1821 cannot be
satisfactorily ascertained on the basis of colonial titles and effectivités,the
71
Ibid, pp 617, para 432.
72 NR, Chapter IV, pp 59-60, para 4.39, footnote 147; pp 61, para 4.45, footnote 156; and
pp 67, para 4.63, footnote 170.
73
74 ICJ Reports 1992, pp 566, para 347.
Ibid, pp 577, para 364. 50
fact that El Salvador asserted a claim to the island of Meanguera in 1854,
and was thereafter in effective possession and control of the island, justifies
the conclusion that El Salvador may be regarded as sovereign over the
island. If there remained any doubt, its position in respect of Meanguera is
made definitive by the acquiescence of Honduras in its exercise of
75
sovereignty in the island since the later years of the last century."
E. ACCEPT ANCE BY NICARAGUA OF THE UT/ POSSIDETIS
JURIS IN ITS APPLICATION AGAINST COLOMBIA
3.58. It should be recalled, finally, that outside its position in the present
case, Nicaragua has always clearly recognized and continues to accept the
principle of the uti possidetis juris. It has consistently adopted the position
that there were no territories without owner in Spanish America when the
colonial emancipation occurred, with the new States having absolute legal
titleof sovereignty on the area in which they succeeded the colonial power,
that obviously included the maritime and insular areas that had been under
the authority of the old colony. This was the case on occasion of the
Arbitral Award of 1906, as has already been shown, and it is also clearly
demonstrated in Nicaragua's Application of 6 December 2001 against
Colombia,
3.59. In that Application Nicaragua clearly accepts the insular and
maritime dimension of the uti possidetis, interpreted as the succession on
the sovereignty over the islands, cays and adjacent waters, that were under
the authority of the provinces that formed the Captaincy-General of
Guatemala in 1821, date of the independence and constitution of the
Federation of Central American States. Following the dissolution of the
Federation in 1838, Nicaragua demanded as its own the islands and cays of
the archipelago of San Andrésand Providencia, extending the principle of
the uti possidetis from the continental mass in an Eastern direction
(paragraph 2 of the Application). So that there is no doubt conceming the
very concrete content and scope that Nicaragua accords in that Application
to theuti possidetis principle as granting a decisive legal title, reference can
be made to paragraph 3 of the Application:
"The question of the title indicated above [para. 2] have a
particular significance in so fars the definitive settlement of such
issues of title must constitute a condition precedent to the
complete and definitive determination of the maritime areas
appertaining to Nicaragua and for any eventual delimitation that
might be necessary with those that could appertain toColombia."
75
Ibid, pp 579, para 367. 51
It is seems clear that Nicaragua is asserting against Colombia the very
principle whose applic:abilityshe denies in the proceedings with Honduras.
F. CONCLUSIONS
3.60. The principle of the uti possidetis juris provides a legal title to
determine maritime (up to six nautical miles during colonial times and
independence) and insular sovereignty of Honduras to the north of parallel
15° that passes through Cape Gracias a Dios as confirmed by the Royal
Order of 1803. Paragraph 17 of the King of Spain Arbitral Award of 1906
was, therefore, correct when it stated that:
"In said documents [the Royal Decrees of 1745 and 1791] Cape
Gracias a Dios is fixed as the boundary point of the jurisdiction
assigned to the above mentioned Govemors of Honduras and
Nicaragua i76the respective capacities in which they were
appointed".
Accordingly, the islands, islets and cays located to the north of this parallel
remained under Honduran sovereignty following Central American
independence in 1821 as was implicitly recognized by the said Arbitral
Award upon denying Nicaragua's claim to fix the land, maritime and
insular limit at meridian 85° W, and deciding instead to fix it at "the mouth
of the River Coco, Segovia or Wanks, where it flows out in the sea close to
Cape Gracias a Dios," that is, at parallell5° N.
3.61. Thus, the essential points are as follows:
by virtue of the utipossidetis jurisprinciple the islands north
of 15°N. latitude were not terrae nu/lius;
the Royal Order of 1803 ftxed the division between
Honduras anèlNicaragua at Cape Gracias a Dios;
given the propensity of the Spanish Empire to use parallels
of latitude and meridians of longitude in identifying
jurisdictional divisions, it is inconceivable that the 1803
would have been intended
i) to allocate the Spanish islands north of 15° N.
latitude to Nicaragua, or
ii) to create a maritime division between Honduras
and Nicaragua along any other line than 15° N.
76 Case Concerning the Arbitral Award made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua), vol/, page 20 (emphasis added). 52
latitude out to at least six nautical miles for the
internai purposes of the Spanish administration of
its claimed waters.
Thus, upon independence in 1821 the islands of Spain north
of 15° N. latitude became the islands of Honduras and
additionally there was a maritime jurisdiction division at 15°
N. latitude out to at least six nautical miles from Cape
Gracias a Dios.
Nicaragua sought to challenge the boundary relationship
between itself and Honduras with the result that the 1906
Award confirmed the land boundary terminus at Cape
Gracias a Dios with all its implications for the islands north
of 15°N.latitude.
While in law Honduras could have lost its uti possidetis title
to the islands north of 15° N. latitude by acquiescing in a
Nicaraguan claim, it has not done so as demonstrated
conclusively in the Honduran Counter Memorial and will be
further demonstrated in Chapters 4 and 5 below. 53
CHAPTER4:
NICARAGUA HAS NO EFFECTIVITÉS
OR SOVEREIGNTY OVER THE ISLANDS
INTRODUCTION
4.01. In Chapters V and VI of its Reply Nicaragua cornes to the subject
of conduct and effectivitéin the area north of the 15th parallel, and the
question of sovereignty and sovereign rights over the islands and maritime
spaces in that same area. Itdoes so belatedly. Having ignored these issues
entirely in its Memorial, Nicaragua now addresses the subject in no less
than three Chapters of its Reply. This reflects a clear and unambiguous
recognition that the sovereignty over the islands is directly relevant to the
placement of the boundary. Itis a highly relevant factor in respect of the
issues which Nicaragua has chosen to put before the Court, but one which it
has previously omitted to address.
4.02. In this respe1::t- as in many others - the approach taken by
Nicaragua in its Reply contradicts the claim introduced at the outset of its
pleading that these islands could have no consequence for the maritime
delimitation itreques.ts. That claim is simply not plausible, either in the
light of the evidence which is now before the Court or against the
background of the Court's constant jurisprudence on the interplay between
governmental conduct, effectivitéssovereignty and maritime delimitation.
4.03. Having de facto abandoned its argument that sovereignty over the
islands is not relevant to its case, Nicaragua now devotes considerable
energy in support of her argument that ''thetitle to the islets rests with
Nicaragua". This rec:ognisesthat a failure on its part to establish its own
title (orto undermine Honduras' title) will be fatal to the improbable line it
has proposed to the Court. Ittherefore seeks to demonstrate that Honduras'
effectivitésare without foundation. And it seeks to persuade the Court of
the merits and strength of its own effectivitéin the area north of the 15th
NR, para. 6.4. 54
parallel, reflecting its 21 stcentury claim to title over the islands. In
Honduras' view bath efforts fail: Nicaragua has never had any effectivités
north of the 15thparallel, and it is unable to refute Honduras' effectivités,in
particular in relation to ail concessions (and the tacit agreement which they
reflect as to the existence of a boundary at the 15thparallel), triangulation
markers and fisheries licences, as weil as concessions and naval patrols.
4.04. In this Chapter, Honduras considers the evidence put forward by
Nicaragua in support of the claim that it has sovereignty over the islands in
question. Honduras does so by reference to the applicable international
legal principles and standards, as reflected and applied in recent judgments
of the International Court of Justice. These are principles which Nicaragua
neither refers to nor feels constrained to apply. By reference to those
principles and standards it is apparent that Nicaragua falls far short of
putting before the Court the evidence necessary to demonstrate its effective
administration of the islands at any time. This conclusion applies to aU
relevant periods, but in particular for that when there was no dispute
between the parties and they treated the !5th parallel as their de facto
boundary, that is to say between 1960 (after the Court gave its judgment in
the Case concerning the Arbitral Award made by the King of Spain on 23
December 1906) and the time when the Sandinista Govemment came to
power in 1979.
4.05. In summary, this Chapter demonstrates the absence of evidence to
support a Nicaraguan claim to title over the islands by way of effectivités.
The Chapter demonstrates in particular that:
the ail concessions granted and renewed by Nicaragua
uniformly recognise (whether expressly or implicitly) that
Nicaragua recognised the !5th parallel as the northern limit of
its boundary with Honduras, and that prior to 1980 there was,
between Nicaragua and Honduras, a tacit agreement as to the
existence of a boundary at the 15thparallel;
neither the Nicaraguan Constitution nor any act of legislation
has ever made explicit reference to any of the islands which it
now claims;
Nicaragua has never applied its civil and criminal laws to the
islands or the waters surrounding them, and has provided no
evidence of any fisheries concessions or licences authorising
activities northf the 15thparallel;
Nicaragua has put no evidence before the Court indicating any
governmental activity on its part on and around the islands, for
example in relation to the placing of markers or other
navigational aids or any other public works; and 55
Nicaragua's claim to title is unsupported by its own official
cartography and by its historie failure to protest or otherwise
object to the Honduran effectivitésidentified in the Counter
Memorial and in Chapter 5 of this Rejoinder.
A. SOVEREIGNTY AND EFFECTIVITÉS:
THE APPLICABLE LEGAL PRINCIPLES
4.06. If Honduras and Nicaragua are now in agreement that the question
of sovereignty over the islands - and effectivitésover the area in question -
is highly relevant to the dispute, they are not in agreement, however, on the
standards to be applied to establishtitle over the islands.
4.07. As Chapter 2 points out, Nicaragua quotes from selected passages
from various cases dealing with territorial sovereignty with which
Honduras can only agree. But these quotations do nothing to support
Nicaragua's case since the evidence presented by Nicaragua does not meet
the various judicial tests for establishing territorial sovereignty. In contrast,
Honduras welcomes the opportunity to present its evidence mindful of
these tests, particularly as most recently addressed in the Court'sjudgments
in the Case concerning Maritime Delimitation and territorial Questions
between Qatar and Bahrain, the Case concerning Sovereignty over Pulau
Ligitan and Pulau Sipidan (Indonesia/Malaysia) and the Case concerning
the Land and Maritime Boundary between Cameroon and Nigeria, as well
as the award of the Arbitral Tribunal inEritrea/Yemen (Phase 1).
4.08. As described below and in the following Chapter, as well as in the
Honduran Counter Memorial, it is not possible to review the practice of
Honduras and Nicaragua respectively - north and south of the 15thparallel
- without reaching the conclusion, bearing in mind the applicable
international law, tha1:the Parties have limited their respective jurisdictions
at that parallel. As will be shown below, this assertion is supported by the
practice of the Parties in all fields, but it is particularly clear in the matter of
oil concessions and drilling activity where the limits of the respective
concessions amply tr·eatthe 15th parallel as ade facto boundary based on
the tacit agreement of the PartiesIn this regard the practice of the Parties in
relation to the Coc2 Marina concessions, which straddle that boundary, is
clear and decisive.
2 HCM, para 6.28; HR inter alia paras 4.33 and 5.13. See also NR, para 5.20 which does
not dispute this. 56
B. NICARAGUA'S EVIDENCE DOES NOT SUPPORT ITS CLAIM
TO SOVEREIGNTY OVER THE ISLANDS
4.09. The Nicaraguan Reply - dated 13 January 2003 - is the first
occasion on which Nicaragua has purported to present any evidence to
support its claim to sovereignty over Bobel Cay, Savanna Cay, South Cay
and Port Royal Cay and the other Honduran islands north of the 15th
parallel which Nicaragua now claims. As set out below, even on it own
merits the evidence is thin and insufficient to support the claim. In
comparison to the evidence submitted by Honduras it appears even more
implausible.
4.1O. The claim to sovereignty was articulated by Nicaragua for the first
time in its Memorial. In thatdocument- and still today -Nicaragua has put
no evidence before the Court to show that it claimed sovereignty over these
islands at any time before it submitted its Memorial in these proceedings, in
2001. Indeed, Nicaragua has provided no evidence that it claimed
sovereignty over these islands in 1903 and 1904, during its dispute with the
United Kingdom concerning turtle fishing, or in 1959 and 1960 when that
issue briefly resurfaced. In this matter at least Nicaragua has been
consistent: throughout the entire20thcentury, as weil as the earlier period,
no claim to sovereignty over the islands was ventured by Nicaragua. And in
that same period Nicaragua never protested the numerous indicators of
Honduran sovereignty over the islands, including the identification of one
of the islands (Palo de Campeche/ Logwood) in the Honduran Constitutions
of 1957, 1965 and 1982. Notwithstanding its own consistent practice and
the paucity of its evidence, Nicaragua now claims (in 2003) that "there can
be no doubt that the title to the islets in dispute rests withagua". 3
4.11. In its Reply, and rather belatedly, Nicaragua has finally been
prompted to reveal the evidence upon which it relies in support of its claim
to sovereignty, as well as evidence of activities giving rise to effectivités.In
this part of the Chapter Honduras assesses the evidence upon which
Nicaragua seeks to rely. The evidence relates to the activities on the part
Nicaragua which it has grouped into five areas:
The grant of oil and gas concessions;
The regulation of fishing activities;
Recognition by third States;
Cartographie evidence; and
The turtle fishing dispute between Nicaragua and the United
Kingdom.
NR, para 6.118. 57
Having regard to the Court's consistent jurisprudence, the evidence falls
very far short ofthat Œquired to support a claim to sovereignty.
C. NICARAGUA'S SILENCE: THE MATTERS ON WHICH IT
PROVIDES NO EVIDENCE OF EFFECTIVITES
4.12. Of equal interest, however, are the various matters upon which
Nicaragua is silent or chooses not to base its claim to sovereignty. Such
silence confirms the weakness ofits belated claim to sovereignty.
4.13. Nicaragua dot:s not, for example, claim that any of its legislation
refers directly to any of the islands in question. Similarly, Nicaragua fails to
provide any plausible explanation as to why its 1999 Report on the
Situation of the Caribbean Coast of Nicaragua fails to address any insu1ar
or maritime area north of the 15thparallel, including the islands now in
dispute. The argument that it would be "of little use" to include disputed
areas in a do4ument seeking to establish a policy and framework
management does not rest easily with its claim that it has title over the
islands or that it has long held control over the area in question. The
approach is also inconsistent with the Court's view that "it can only
consider those acts as constituting a relevant display of authority which
5
leave no doubt asto their specifie reference to islands in dispute as such."
4.14. And Nicaragua does not - and cannot- identify any reference in its
Constitution to any of the islands in question. This contrasts with the
position for Honduras, whose Constitution has made reference to sorne of
6
the relevant islands since 1957 (and not since 1982, as Nicaragua claims).
4.15. Relatedly - a.nd again unlike Honduras - Nicaragua has put no
evidence before the Court to show that it has ever applied its criminallaw
to the islands orto ac:tsor omissions in the area around the islands. It has
put no evidence before the Court to show that it applied its immigration
laws to the islands or to the area in question. 8 Similarly, there is no
evidence before the Court to show that Nicaraguan labour laws have been
applied to the insular or maritime areas north of the 15thparallel, as is the
case for Honduras. 9 Nor is there any evidence that search and rescue
4 NR, para 6.99.
5
See Case concerning Sovereignty over Pu/au Ligitan and Pu/au Sipidan
(Indonesia/Ma/aysiaICJ Reports 2002, para 136.
6
NR, paras 6.18, 6.97. See further below at para 5.42.
7 HCM, paras. 6.18-6.21; NR, paras 6.95-6.99.
8
HCM, paras.6.51-6. N R9paras 6.95- 6.99.
9
HCM, paras. 6.18-6.19 and 6.22-6.23; NR, paras 6.95-6.99. 58
missions have been undertaken by the Nicaraguan authorities in respect of
accidents or incidents occurring in that area, 10 or that rights of overflight
11
over the area have been requested from Nicaraguan authorities.
4.16. Indeed, after two rounds of written pleadings Nicaragua has not
provided a single piece of evidence to establish that it has ever carried out
any activity whatsoever on any of the islands. It does not claim to have
12
placed any markers or beacons on the islands. It does not claim to have
carried out, or permitted, scientific investigations on the islands. 13It does
not claim to have regulated the activities of any persons living on the
14
islands.
4.17. On ali of the activities in respect of which it is silent, the Court will
note that Nicaragua bas provided no evidence that it has ever protested
against the carrying out or authorisation of these activities by Honduras,
whether prior to 1979 or after that date. Having regard to its current claim
of sovereignty over the insular and maritime areas north of the 15thparallel,
its failure to express disagreement or protest is "unusual" (as the
International Court put it in the Case concerning Sovereignty over Pulau
Ligitan and Pulau Sipidan). 15The silence requires explanation, but none
has been provided.
4.18. On these matters, the absence of Nicaraguan evidence is readily
apparent. It cannot be reconciled with the claim that "there can be no doubt
that the title to the islets in dispute rests withNicaragua". 16
D. NICARAGUA'S EVIDENCE AS TO EFFECTIVITÉS
4.19. And what of the evidence of effectivités that Nicaragua has put
before the Court? With regard to the matters on which no evidence has
been provided one might have expected Nicaragua to provide extensive
evidence as to its administration a titre de souverain in the area north of the
15thparallel in respect of other areas of activity. But there is very little and
none of consequence. Its claim to title rests solely on six witness statements
and four maps. It has been unable to produce a single fishery licence or
10
HCM, paras. 6.60-6.63; NR, paras 6.107- 6.118. In this regard the Courts dicta in
Qatar/Bahrain is instructive. ICJ Reports1, para 101.
Il HCM, para 6.72; NR, paras 6.107- 6.118.
12
HCM, paras. 6.64-6.66; NR, ibid.
13
HCM, paras. 6.67 and 6.32-6.33; NR, ibid.
14 HCM, e.g, paras. 6.9-6.17; NR, ibid.
15
ICJ Reports 2002, para 148.
16
NR, para 6.118. 59
concession north of the 15thparallel (or even any advertisement offering
such licence or concession), or a single oil or gas concession in that area.
(1) NICARAGUA'S ÜIL AND GAS CONCESSIONS
4.20. Nicaragua claims that her "concession practice ... ind17ates that she
considered to have sovereignty over the islets in dispute". Curiously, this
claim is made notwithstanding the fact that Nicaragua has been unable to
identify even a single example of the grant by it of any oil or gas
concession north of the 15thparallel or in any area which is remotely
proximate to the islands. And notable is the fact that the claim is
contradicted by Nicaragua earlier in its Reply, when it states that "[t]here is
no basis to assert the existence of effectivitésrelating to the maritime
delimitat18n deduced from the oil and gas concessions made by the
Parties." But if Nicaragua is inconsistent in its legal arguments, it has
been remarkably consistent in its practice in relation to oil and gas
concessions, never once trespassing north of the 15thparallel.
4.21. Honduras submitted evidence on 18 Nicaraguan oil concessions in
its Counter Memorial. Nicaragua has not challenged the veracity or
accuracy of any of that evidence. Honduras also submitted evidence on 22
of its oil concessions. Honduras notes, as described below, that Nicaragua
has not challenged Honduras' consistent practice in delimiting the southern
limit of its oil con,;essions by reference to parallel 14°59'08". And
Nicaragua has not produced any evidence to show that it ever objected to
19
Honduras' consistent practice.
4.22. As regards the Nicaraguan oil concessions, the evidence and
argument put forward by Nicaragua confirms the existence of a tacit
agreement between the Parties as to the existence of a boundary at the 15th
parallel, at least in tht:period from the mid-1960's to 1979when Nicaragua
abruptly changed its practice. Nine ofNicaragua's eighteen oil concessions
explicitly referred to the 15th parallel as the northern limit of the
Nicaraguan oil concessions. 20Nicaragua has provided no explanation asto
why that line has been chosen as the northern limit of each of those
concessions if it was not considered to be the northern limit of its maritime
boundary with Honduras. Indeed, Nicaragua has simply chosen not to
address arguments on these concessions.
17 NR, para 6.118f).
18
NR, para 5.25.
19 See NR, para 5.1et seq.
20
See, e.g., HCM, vo12, annex 115, which refers to "parallell4°59'," and annexes 116,
117, 202, 203 and 206 referring to "parallell4°59'08." 60
4.23. The evidence before the Court on Nicaragua's practice indicates
that:
Nicaragua's practice has been consistent in that no oil
concession has ever been granted north of the 15thparallel, and
that there are at !east as many concessions expressly referring
to the 15thparallel as there are concessions that do not refer to
it;
all delimitations made in Nicaraguan oil concessions recognize,
expressly or implicitly, the 15thparallel as the northem limit of
its concessions; and
Nicaragua never contested Honduran oil concessions and
drilling activity north of the 15thparallel.
Nicaragua 's Consistent Practice
4.24. Between 1967 and 1979 sorne 18 Nicaraguan Presidential Decrees
were adopted which granted, extended or renewed oil concessions in the
area in dispute. None granted any rights in any area north of the 15th
parallel. Six of the Nicaraguan oil concessions which are the subject of
these decrees refer explicitly to a northem limit at "parallel 14°59'08"",
(and three more are extensions or corrections of these earlier
concessions). 21 As late as 1977 Nicaragua was granting new concessions
delimited explicitly by reference to parallel 15th.Of the remaining nine
decrees, four mak:e reference to an "intersection with the borderline
21 Certification of concession granted to "Western Caribbean Petroleum Company",
Official Gazette of Nicaragua No. 117of29 May 1967(Block "Miskito"), HCM, annex
203 extended by Decree No. 129-DRN, Official Gazette of Nicaragua No. 72 of 4 April
1970, HCM, vol 2, annex 204 and granted to the consortium of "Western Caribbean
Petroleum Company" and "Occidental of Nicaragua" by Decree No. 8 of 28 April 1973
and extended by Decree No. 132-DRN, Official Gazette of Nicaragua No. 140 of 23
June 1976, HCM, vol 2, annex 205; Resolution Concerning an Oil Concession Granted
to "Mobil Exploration Corporation", Decree 38-DRN of 3 May 1966, Official Gazette
of Nicaragua No. 202 of 4 September 1968, HCM, vol 2, annex 202; Certification of
Decree 86-DRN Concerning an Oil Concession granted to "Western Caribbean
Petroleum Company", Official Gazette of Nicaragua No. 161 of 18 July 1968, HCM,
("Block No. 1"), HCM, vol 2, annex 115, and clarification of previous Decree in
Certification of Decree Conceming an Oil Concession granted to "Western Caribbean
Petroleum Company" and "Occidental of Nicaragua, lnc.", Official Gazette of
Nicaragua No. 206 of 9 September 1970, HCM, vol 2, annex 116; Certification of
Decree Conceming an Oil Concession granted to "Western Caribbean Petroleum
Company" and "Occidental of Nicaragua, Inc.", Official Gazette of Nicaragua No. 272
of 28 November 1974 ("Block No. 1"), HCM, vol2, annex 117; Resolution conceming
an oil concession granted tostern Caribbean Petroleum Company" and "Occidental
of Nicaragua, Inc.", Official Gazette of Nicaragua No. 259 of 14 November 1975
(Block "Agua Azul"), HCM, vol 2, annex 206. See references to these oil concessions
in HCM, para 6.27 and notes 51 and 52. 61
with...Honduras, which has not been determined"(the22ther five being
extensions or renewals of earlier concessions).
4.25. One has to assume that Nicaragua's practice was not intended to be
anything other than consistent. lt is noteworthy that the alternative
approaches to the delimitation of the northem limit of Nicaragua's oil
concessions were often applied in instruments published within a matter of
days of each other. For example, in 1968- within the space ofthree days
the Govemment of Nicaragua published in its official journal (La Gaceta)
two decisions to grant oil concessions, one to Mobil Exploration Comp23y,
and the other to Pure Oil Company of Central America, Inc. The Mobil
concession was published on 4 September 1968, establishing as one of its
northem limits parallel 14°59'08". The Pure Oil concession was published
two days later, on 6 September 1968, for blocks Pure II, III and IV. While
that concession included a savings clause indicating that there was no
formai boundary determination,24t nonetheless stated that its limit was the
border line with Honduras.
22 Resolution conceming an Oil Concession Granted to "Pure Oil of Central America,
lnc.", Official Gazette:of Nicaragua No. 204 of 6 September 1968 (Blocks "Pure II",
"Pure III" and "Pure IV''),HCM, vol 2, annex 207; Resolution concerning an Oil
Concession Granted to "Union Oil Company of Central America, Inc.", Official
Gazette of Nicaragua No. 137 of 20 June 1972 (Blocks "Union II", "Union III" and
"Union IV'')HCM, 'ol2, annex 208, extended three times by Resolution conceming
an Oil Concession Gnmted to "Union Oil Company of Central America, lnc.", Official
Gazette of Nicaragua No. 190 of 22 August 1972, HCM, vol 2, annex 209; Resolution
conceming an Oil Concession Granted to "Union Oil Company of Central America,
lnc.", Official Gazette ofNicaragua No. 172of3 August 1978,HCM, vol2, annex 215;
Resolution conceming an Oil Concession Granted to "Union Oil Company of Central
America, Inc.", Official Gazette of Nicaragua No. 130 of 12 June 1974 (Block "Union
V''),HCM, vol 2, annex 210, extended by Resolution conceming an Oil Concession
Granted to "Union Oil Company of Central America, lnc.", Official Gazette of
Nicaragua No. 108of 18May 1977,HCM, vol2, annex 213; Resolution conceming an
Oil Concession Granted to "Union Oil Company of Central America, lnc.", Official
Gazette of Nicaragua No. 22 of 17January 1975(Blocks "Union VI" and "Union VIT'),
HCM, vol2, annex 211, extended by Resolution conceming an Oil Concession Granted
to "Union Oil Company of Central America, Inc.", Official Gazette of Nicaragua No.
291 of22 December 1977,HCM, 214.
23
As described in the NR (Annexes 14, p 71 and 16, p 85), these decisions had been
adopted (although not published) years before: concessionMobil had been approved
on 3 May 1966,and concessions to Pure oil on 30 November 1965.
24 Similarly, in the period 1974-75 Nicaragua granted to Union Oil blocks Union V and
VI, indicating for the purposes of their delimitation their "intersection with the
borderline with...Honduras, which has not been determined." But in the sarne period,
sorne months after each of these concessions to Union Oil had been granted,
Nicaraguan authorities granted to the consortium created Western Caribbean and
Occidental two concessions - "Block N" 1" and "Agua Azul" - which established
parallel14°59'08" as one of their borders, see HCM, vol 2, annex 210 and 211, and
117and HCM, vol 2, annex206. 62
4.26. The consistency of the approach is reflected in the map published in
1969 by the Director General of Natural Resources of the Nicaraguan 25
Ministry of Economy, Industry and Commerce (See Plate 32). This
illustrates the Mobil concession and the Pure Oil concession, as well as all
1
other concessions granted up to that date. None extends north of the 15 h
parallel. In other words, irrespective of the precise formulation used in the
concession, the effect was to respect the 15thparallel as the northern limit
of the concession.
4.27. As recently as 1995 the position adopted by Nicaragua had not
changed. That year, and also in 1994, the Nicaraguan Institute for Energy
published a map representing ail and gas prospects: this tao clearly set the
Nicaraguan border for the purposes of ail and gas exploration at the 15th
parallel26 (See Plate 33). This map also shows the Coco Marina ail well as
27
straddling the Honduran-Nicaraguan border at the 15thparallel. The map
published in 1994 is based on an earlier map dated 1986, demonstrating the
consistency ofNicaragua's approach.
4.28. It is therefore incontrovertible that Nicaragua's long-term,
consistent and extensive practise in relation to ail concessions confirms the
15thparallel as the northern limit of its boundary with Honduras, and that
its agencies explicitly recognised the parallel as a point beyond which
concessions were not - and could not be - granted.
4.29. The fact of this overwhelming evidence- which does not support
its claim to title north of the 15th parallel - against its claim to title
probably explains why Nicaragua's treatment of the subject of concessions
in Chapter V of its Reply is marked by varying degrees of
misrepresentation, omission and unsubstantiated assertion. By way of
examples (and more could be provided):
a) Misrepresentation: At paragraph 5.15 of its Reply
Nicaragua asserts that information provided in Honduras'
Counter Memorial is "incorrect" in referring to the grant of
Nicaragua's first concession as occurring in 1968, when it
should have been 1965. The actua1 date is not material.
However, the suggestion that Honduras has somehow not
been accurate is wrong: the first concession was officially
25
Map of Petrolewn Concessions, General Directorate of Natural Resources, Nicaragua,
1969 atPlate 32.
26 Instituto Nicaragüense de Energia, Mapa derspectivas Petroliferas y Gasiferas de
Nicaragua, p 12, Exploraciones Petroleras en Nicaragua, June 1995, and lnstituto
Nicaragüense de Energia, Map of oil and gas prospectivity in Nicaragua, p 12,
Petrolewn Exploration Activities in Nicaragua, June 1994 (original in English), HR, vol
2, annex 255.
27 As explained in the HCM, para 6.28.Plate 32: Map of Petroleum Concessions,
General Directorate of Natural Resources,
Nicaraguan Ministry of Economy, Industry
and Commerce, March 1969 1
J
1 HONOUR AS
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l.·r,t<'ll!(•IJ,:.!II.">'>PLATE 33:EXTRACTS FROM "PETROLEUM EXPLORATION ACTIVITIES IN NICARAGUA" REPORTS,
NICARAGUAN INSTITUTE OF ENERGY, JU1994 AND JUNE1995
A) JUNE1994
1
se•
NICARAGUA
1
ml WIT!-iOu-:' PROSPECTIVIT6 Oir seepage onshore
a fEW PIOOSPECTIVJTIES
'11<0.CLASS PROSPECTIVITV 01Sê9Pageawasn
• FtRST GLASS PROSPECT1VIl't
~
D PMSPEC~OTSTABUS~~E.O 0 Wells dr,lled
Map of oil and gas lNSTlTUTONICARADEE.NERGIA
prospectlvlty ln Nicaragua OIRECCIONEXPLOAACIONPETAOLERA
•PLATE 33:EXTRACTS FROM "PETROLEUM EXPLORATION ACTIVITIES IN NICARAGUA" REPORTS,
NICARAGUAN INSTITUTE OF ENERGY, JUNE 1994ANDJUNE 1995 (CONT.)
B) JUNE 1995
Il SINPERSPECTIVAS D MANIFESTACDESETROLEO
ENLASUPERFIERRESTRE
DEPOCAPERSPECllVAS
Il - . MANIFESTADEPETROLEO
AFLORDEMAR
PERSPECTIAS~"ORDEN
0 POZOPERFOAADOS
Il PERSPECTIAS1'ORDEN
DEPERSPECTIVAS
0 NOESTABLECIDAS
• 63
published in the Nicaraguan Official Journal, La Gaceta, and
made public, only on 6 September 1968 (a point w28ch
Nicaragua omits to mention in its argument). Moreover,
Honduras did provide the date of the request by Pure Oil of
such concession in 1963. 29
b) Misrepresentation: Also at paragraph 5.15 of its Reply,
Nicaragua n:fers to Honduras as claiming that the
Nicaraguan concessions "used the 15th Parallel as the
northern boundary of Nicaraguan territory". This is a clear
misrepresentation of what Honduras actually says in its
Counter Memorial, namely that the Nicaraguan concessions
treated "the 15th parallel as the northemmost limit of the
territory of Nicaragua, in the sense that none of the
concessions reaches north of that parallel." This statement
is correct andis not refuted by any Nicaraguan evidence.
c) Silence: In its Reply Nicaragua remains silent as to the
evidence put forward by Honduras which demonstrates
Nicaragua's respect for and tacit agreement treating the 15th
parallel as the maritime boundary for the purposes of
granting oil concessions. It is notable that Nicaragua refers
only to those documents which it considers may be
favourable to its position. Nicaragua does not respond, for
example, to the series of oil concessions granted to the
Western Caribbean Petroleum Company and to the
consortium created by Western Caribbean and Occidental
(see HCM paras. 6.26 and 6.27); or to a series of diagrams
published in international petroleum journals showing the
exact location of Nicaraguan concessions, which were
invariably south ofparallel14°59.8'. 31
d) Unsubstantiated assertions: There are many examples of
Nicaragua failing to provide any evidence or references in
support of fac::tualmatters upon which it relies or arguments
which it makes. For example, at paragraph 5.19 of its Reply
Nicaragua asserts that the 1965 Pure Oil Concession was
geographicall y defmed pursuant to an alleged request made
by Pure Oil (which is quoted) that there be established a
"conventional area": however no evidence is introduced to
28
NR, para 5.17.
29 HCM, Chapter 6, nott: 54.
30
HCM, para 6.27 (Emphasis added).
31 HCM, para 6.24. 64
support the quotation, and the provisions of the Special Law
on Exploration and Exploitation Petroleum (on which it was
[apparently] based) are not included in the annexes. 32
Regardless of whether this argument provides the
justification sought by Nicaragua to explain its approach, the
materials set forth in the Reply and its annexes provide no
basis upon which to determine whether Nicaragua's
arguments are relevant or based on accurate information.
e) Silence and manipulation. The existence of a tacit
agreement between the Parties as to a boundary at the 15th
parallel is unambiguous in the clear and compelling evidence
provided by Honduras on the "Coco Marina Joint
Operation", a joint venture which treated the 15thparallel as
the dividing line of the two Parties' areas of respective
competence. This joint operation on the 15th parallel is
incontrovertible proof that Nicaragua accepted that the area
north of the 15th parallel was subject to Honduran
jurisdiction, otherwise it would never entered into such a
joint undertaking. Instead of addressing the merits of the
arguments, however, Nicaragua raises questions of minor
33
importance about the Honduran evidence; the Court will
recognise Nicaragua's failure to address the merits, an
approach which seems intended to divert attention from the
incontestable fact that the Coco Marina oil well - which is
physically located on the 15th parallel - required a joint
operation oftwo companies licensed to operate, respectively,
north and south of that parallel, that is to say, in Honduras
and Nicaragua, respectively.
Nicaragua 'sPractice Confirms That ft Has Recognised the 15 1hPara/lei
As the Northern Limit of its Oil Concessions
4.30. A small number (4) of Nicaragua's 18 oil concessions granted in
the period 1965 to 1981 do not explicitly identify the 15th parallel as the
northern limit, but refer to the "intersection with the borderline
with...Honduras, which has not been determined; from that point,
following said borderline in a generally Westerly direction, to the
32
The same argument is made in respect of the 1973 Union Oil concession, but once
33 again no evidence introduced in support of the assertion.
Nicaragua highlights the fact that a document submitted by Honduras is undated or that
the "Interstate Study Commission" is only a Honduran commission. This information
had actually been provided already by Honduras in its Counter-Memorial. NR, vol 1,
para 5.26 and HCM, volt, para 6.28. 65
intersection with Meridian 82°15'W and from that point following said
Meridian 82°15'W directly South to the starting point, thus closing the
shape, the size of which is approximately 65, 500 hectares." That does not
mean, however, that any of the concessions were intended to extend north
of the 15thparallel. [t is plain that they did not. Those which did not
explicitly refer to that limit nevertheless were prepared and adopted and
offered with the result:that they nonetheless recognised and gave effect to a
northem limit which feUon or about the 15thparallel.
4.31. The decrees establishing each of those oil concessions which do not
refer to the 15th paral:lelprovide for a series of other coordinates and a total
surface area for each concession block (expressed in hectares). From this
information it is possible to calculate and graphically describe the area for
each of these concessions, including the northem limits. This exercise has
now been carried out by Honduras (see Plates 34a, band c). lt shows that:
For no concession does the northem limit extend north of
parallel14°59'8"; and
For each of these concessions the northem limit is consistent
with Nicaragua's tacit agreement that the 15thparallel reflects
the northem limit of its maritime boundary with Honduras.
The cartographie exercise carried out by Honduras is consistent with the
maps published in 1969 by the Director General of Natural Resources of
the Nicaraguan Ministry ofEconomy, Industry and Commerce, and in 1995
and 1994 by the Nicaraguan Institute for Energy? It is also consistent with
5
maps published in sp<::cialisedjoumalsat the time/ and with Plates 11, 12,
13 and 22 of the Honduran Counter Memorial, which were considered in
the Nicaraguan Reply to "not correctly reflect reality" (although Nicaragua
6
does not explain why this is the case)? Nicaragua provides no evidence of
its own to counter these clear facts. It cannot do so: another independent
and authoritative publication dating to 1970 - Petroleum Legislation -
includes maps of Honduras and Nicaragua based on information from 1968
which also locates the boundary limit between Nicaraguan and Honduran
oil concessions at the 15thparallel.37
34
See supra at paras 4.26- 4.27.
35 HCM, para 6.24 and note 44.
36
NR, para 5.25.
37 Petroleum Legislation, New York 1970, HR, vo12, annex 261. 66
Conclusions on Nicaragua 'sOil Concessions
4.32. On the basis of the evidence before the Court it is c1ear that no
Nicaraguan Presidential decree or other act granting or extending an oil
concession has ever authorised any oil exploration activity to take place
north of the 15th parallel. This is the case a1sofor the period between 1960
and 1979, of central importance to this case. Sorne Nicaraguan oil
concessions were express1ysubject to a northern limit at 14°59'08". The
others which did not refer express1yto a precise northern limit nonethe1ess
also respect this parallel. Such recognition was not only de facto, as
Nicaragua seems to suggest in its paras 5.19, 5.23 and note 208 when
referring to the establishment of a "conventiona1area", but a1socontained
in Nicaragua's administrative acts, through the delimitations of oi1
concessions provided in the various Presidential Decrees and published in
official publications. Nicaragua's practice, together with that of Honduras
described in the Counter Memorial and Chapter 5 of this Rejoinder,
confirms the "common understanding" of the Parties which is reflected in
"the geographie pattern of the oil concessions granted by the two Parties",
as found by the Court in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria. 38
4.33. Taken together with the consistent practice of Honduras,
Nicaragua's consistent practice, and its own maps, amply demonstrate the
existence of a tacit agreement between the Parties as to the existence of a
boundary at the 15th parallel, which was referred to as 14°59'08", or more
generally as the boundary with Honduras. Nowhere is this better illustrated
than in respect of the joint project known as Coco Marina, on which
9
Nicaragua has nothing substantive to say?
(2) NICARAGUA'S PRACTICE IN RELATION TO FISHERIES
4.34. In its Memorial Nicaragua provided no evidence to the Court to
show that it had ever applied or enforced - or even sought to app1yand
enforce - its fisheries laws north of the 15thparallel, or that it had granted
any licences or concessions for fisheries activities in the area.
4.35. Ten months after the filing of Honduras' Counter Memorial, what
has Nicaragua been able to obtain? Recognising the paucity of its own
evidence Nicaragua claims that "the issue of fishing licenses or adoption of
fisheries legislation is not directly relevant for the issue of title to
38 ICJ Reports 2002, para 215.
39 NR, para 5.26.
40
HCM, para 6.47. PLATE 34: HONDURAN GRAPHIC REPRESENTATION
OF LIMITS OF OIL CONCESSIONS GRANTED BY NICARAGUA, 1968-1975
A) PURE IlllATER UNION Ill
Source: Official Gazette of Nicaragua No. 204 of 6 September 1968
(Se1!Nicaraguan Reply, Annexes 14 and 15)
B) PURE IV, lATER UNION IV
Source:(See Nicaraguan Reply, Annexes 14 and 15)f 20 June 1972 PLATE 34: HONDURAN GRAPHIC REPRESENTATION
OF LIMITS OF OIL CONCESSIONS GRANTED BY NICARAGUA, 1968-1975 (CONT.)
C) UNION V
--..11;
Source: Offi•:ial Gazette of Nicaragua No. 130 of 12 June 1974
(See Nicaraguaneply, Annex 17)
D) UNION VI
Official Gazette of Nicaragua No. 22 of 17 January 1975
(See Nicaraguan Reply, Annex 18) PLATE 34: HONDURAN GRAPHIC REPRESENTATION
OF LIMITS OF OIL CONCESSIONS GRANTED BY NICARAGUA, 1968-1975 {CONT.)
E) COMBINED GRAPHIC SHOWING AREA GRANTED IN HECTARES
UM.I!CLUDA
...CONCESION f HI!CTUI!AS
Ul (UNIO1.) 1U, ....
PUIII! IY (UNIJY) tu,....
1 UNION 'li
.......
.1 UNION ifl .......
•-,:'-·-15"30'
" " 15"00'
,_ .-----'-'·-~14"30'
Source: Official Gazette of Nicaragua No. 204 of 6 September 1968, No. 137 of 20 June 1972,
No. 130 c»f12 June 1974 and No. 22 of 17 January 1975 67
territory".1 It is undear what is meant by the word "directly". But
whatever is intended is wrong as a matter of international law: in the Case
conceming Maritime Delimitation and Territorial Questions between
Qatar and Bahrain the Court expressly referred to the licensing of fish
traps as one of the acti.vitiescarried out by Bahrain in support of its claim to
sovereignty. And in the Case conceming Sovereignty over Pu/au Ligitan
and Pu/au Sipidan the Court made it clear that private fishing activities
may be taken as effectivitéswhere they take place "on the basis of official
regulations or under govemmental authority", i.e. under govemmental
43
licence or pursuant to a govemmental concession. The International Court
has spoken clearly on the issue: the grant of govemmental fishing licences
and concessions may support a claim to sovereignty and is, in this way,
directly relevant for the issue of sovereignty and title to insular territory.
4.36. What has Nicaragua come up with by way of govemmental fishing
licences and concessions to support its claim it has "regulated fishing
activities in the area including the islets for a long time, at least since the
end of the 19th century"? 44 Nothing. There is not a single piece of
contemporaneous documentary evidence before the Court that proves the
grant by Nicaragua of such licences or concessions. There is not even any
evidence before the Court that Nicaragua ever advertised the availability of
such licenses and concessions in any waters north of the 15th parallel,
whether in connection with the islands or otherwise. Unli45 Honduras
(whose evidence it unsuccessfully seeks to discredit), Nicaragua has not
provided any logbooks or bitacoras which would provide contemporaneous
evidence proving or confirming that it granted fishing licences or
concessions at any time, either before or after 1979. Nor has Nicaragua
provided any evidenc:ein the form of concessions (or licences) or public
notices calling for concession applications (in the Official Gazette) in any
area north of the mouth of the River Coco Segovia (at the 15th parallel).
Given its claim that it has long regulated fisheries activities in the area one
would have expectt!d at least sorne contemporaneous documentary
evidence to be tendered in support of its claim, as Honduras has done. But
there is none.
4.37. All Nicaragua has to offer is five witness statements in support of
this part of its claim purporting to provide evidence of longstanding
activity. None is from a govemment official. Three make no reference to
41
NR, para 6.107.
42 ICJ Reports 2001, paras 195-196.
43 Supra, para 2.28.
44
NR, para 6.118(e).
45 See below at para 5.20.
46
See HCM, para 6.43 nnd note 75. 68
any licences granted by Nicaragua, and the other two are unsupported by
any documentary evidence as to licences or concessions granted by
Nicaragua. They merit careful reading.
4.38. Annex 21 of the Nicaraguan Reply is a witness statement by Mr.
Hermann Emmanuel Presida. It provides no indication that the fishing
activity he describes was anything other than private in character, since no
reference is made to the grant of any licence or other authorisation by
Nicaragua. The Court will note also that it is not possible to establish from
the statement the date upon which the purported activities took place. The
statement thus provides no support for Nicaragua.
4.39. Annex 22 of the Nicaraguan Reply is a witness statement by Mr.
Hayword Clark McLean. It too provides no indication that the fishing
activity he describes was anything other than private in character, since no
reference is made to the grant of any licence or other authorisation by
Nicaragua for fishing in the waters north of the 15th parallel. But Mr.
McLean does say:
"They sent us to Nicaragua to fish [in the area north of Parallel
15], and we had to be on the watch for Nicaraguan patrols because
the Colombians knew that they were fishing in Nicaraguan waters.
[... ] When1 was fishing for Colombia they provided me with a
nautical chart - COL 008 from the MERCATOR Projection,
which 1still have today."
Aside from the fact that he does not say he actually saw any Nicaraguan
patrols, the chart to which he refers -OL 008 - does not indicate that the
waters north of the 15thparallel are part ofNicaragua. lfanything, it shows
that the area north of the 15thparallel is part of Honduras. A copy of that
Chart is at Annex 260.
4.40. Annex 23 of the Nicaraguan Reply is a witness statement by Mr.
Arturo Môhrke Vega. He provides no material first-hand evidence,
referring only to patrols (on an unstated date)in areas around parallel 17''
but without stating that he himself actually participated in such patrols or
referring to any documentary evidence in support of such patrols. The other
information provided is hearsay. Nicaragua has provided no documentary
evidence to support anything he says.
4.41. Annexes 24 and 25 of the Nicaraguan Reply are witness statements
by Mr. Jorge Morgan Britton and Mr. Leonel Aguirre Sevilla. Their
evidence on fishing activity licensed by Nicaragua up to the 17th parallel is
uncorroborated by any documentary evidence provided by Nicaragua
(unlike thatof the Honduran statements). 69
(3) RECOGNITION BY THIRD STATES OF NICARAGUAN SOVEREIGNTY
4.42. In response to the evidence tendered by Honduras as to the
recognition by third states of Honduran sovereignty over the islands and
related areas,47 Nicaragua daims that "there are a number of instances in
which [Nicaraguan] sovereignty was recognized and it was explicitly or
implicitly acknowledged that the parallel of 15thN did not constitute a line
of allocation of territory or a maritime boundary". 48 In fact, Nicaragua is
only able to provide two examples over a period of more than 100 years
that it says supports its position: the United Kingdom (in relation to the
turtle fishery dispute at the end of the 19thcentury and the beginning of the
20thcentury) and Jamaica (in relation to maritime boundary delimitations
conducted in 1996and 1997).
4.43. Asto the first. there is no evidence before the Court to indicate that
the United Kingdom recognised Nicaraguan sovereignty over any island
north of the 15thparallel. In its Reply Nicaragua does not identify such
evidence. At sorne stage in that dispute Nicaragua did identify one island
north of the 15thparallel as falling within its sovereignty (not an island
related to the present dispute), but that claim was not put to the United
49
Kingdom. In the proceedings before the Mixed Commission which was
established to resolve the dispute Nicaragua did not claim sovereignty over
any of the islands or banks claimed by Nicaragua in its Memorial in these
proceedings, and the Commission did not identify any of them as being
50
under Nicaragua'sjurisdiction.
4.44. Asto the second, negotiations conducted by Jamaica and Nicaragua
took place in 1996 and 1997. However, Jamaica has been involved in
negotiations with Honduras for the delimitation of that same maritime area,
which it considers to be "under the jurisdiction" of Honduras and
Jamaica. 51 Those negotiations are subsequent to any negotiation it may
have had with Nicaragua: see the Aide Memoire of 15 April 1999. 52
Moreover, Jamaica has provided to Honduras an Aide Memoire dated 15
June 2003 which states, having reviewed the documents introduced by
Nicaragua in its Reply, that:
47 HCM, paras. 6.68-6.75; and infra at paras 5.62 et seq.
48
NR, para 6.115.
49 HCM, para 3.10 and fmnex 173.
50
HCM, para 3.12.
51 See letter from Minist:erof Foreign Affairs of Jamaica to Minister ofExternal Relations
of Honduras, 25 Febtuary 2002, HR, vol 2, annex 235. See also the Statement of Mr
Ram6n Valladares Soto, HR, vol2, annex 250.
52
HR, vol 2, annex 234. 70
"The Government of Jamaica bas examined its records of the
above-mentioned documents, and can confirm that these
documents do not in any way indicate that Jamaica bas ever
expressed support for Nicaraguan maritime claims against
53
Honduras."
4.45. The Nicaraguan evidence as to recognition by third states therefore
rests on a single set of negotiations between Jamaica and Nicaragua, which
are said by Jamaica not to provide support for the proposition put forward
by Nicaragua, and which are inconsistent with the position adopted by
Jamaica in other contexts, including in its negotiations with Honduras. In
contrast with Honduras, Nicaragua appears to have been unable to identify
or produce any evidence of recognition by third states in relation to matters
such as the installation of triangulation markers, or drug enforcement
operations, or gazetteers, or requests for overflight, or in the work of
international organisations.
(4) NICARAGUA' S CARTOGRAPHie EVIDENCE
4.46. Nicaragua chose not to include any of its own historical maps in its
Memorial, relying instead on recent maps produced principally for the
purpose of these legal proceedings. In its Counter Memorial Honduras
explained the reason for Nicaragua's omission on the following basis:
"Nicaragua's treatment of its own cartographical history is easily
explained: its own maps do not support its claim to the islands and
the area north ofthe 15thparallel."54
Honduras introduced into the proceedin§s a number of Nicaraguan maps,
from 1898, 1965, 1966, 1982 and 1993. 5 None included any ofthe islands
and cays which Nicaragua claimed in its Memorial as falling within its
sovereignty.
4.47. The situation after Nicaragua's Reply is unchanged. Nicaragua bas
introduced three maps.
The first is undated but was prepared by the Mixed Boundary
Commission charged with establishing a boundary in the terms
agreed upon in the 1894 Treaty between Nicaragua and
53 HR, vol 2, annex 238.
54
HCM, para 3.59.
55 HCM, vol3, Plates 28 and 29. Also annexes 177, 178, and 179. 71
6
Honduras. 5 Itdoes not show any of the islands now claimed
by Nicaragua.
57
The second is a School Map of Nicaragua prepared in 1982.
lt does not show any of the islands now claimed by Nicaragua.
The third is a Map of Nicaragua published by the Government
showing politica1 and administrative regions, and dates to
58
1997. The main map does not show any of the islands now
claimed by Nicaragua. An inset showing an area partly outside
the main map 59 shows a large number of cays on the Miskito
Coast, induding sorne north of the 15thparallel. Itdoes not
however indicate where the maritime boundary is to be drawn,
it expressly states that maritime boundaries in the Caribbean
sea have not been "juridically delimited", and it does not
indicate in which political or administrative region any of the
cays falls. In sum, the map does not demonstrate that the
islands now claimed by Nicaragua fall within any government
region of Nicaragua.
4.48. After two rounds of written pleadings all Nicaragua has to offer by
way of maps is a Holitary 1997 map that does not purport to show
sovereignty over the islands. The cartography is scarcely consistent with
the claim that "there can be no doubt that the title to the islets in dispute
rests with Nicaragua". 60 As compared with the maps demonstrating
61
Honduran sovereignty Nicaragua's claim is untenable.
(5) NICARAGUA'S ARGUMENTS ASTO THE TuRTLE FISHERIES DISPUTE
4.49. After not mentioning the turtle fishing dispute between the United
Kingdom and Nicaragua around the islands and cays off the Mosquito
Coast in its Memorial, in its Reply Nicaragua is defensive and claims that
the turtle fishing dispute "between Nicaragua and the United Kingdom
56
NR, Annexes, vol II, Map 1.
57 NR, Annexes, vol II, Map IV.
58
NR, Annexes, vol II,ap V.
59 Honduras notes that elsewhere in its Reply Nicaragua seeks to disrniss the relevance of
a 1933 Official Map of Honduras on the grounds that "although the inset shows the
areas in which thesl•!tsare located .. the main map does not show any of the islets, as
the area concerned ist included in it'':NR, para 6.23.
60 NR, para 6.118.
61
See irifra, paras 5.38 et seq. 72
62
confirms this title of Nicaragua over the islets". That claim rests entirely
on the identification of the False Cape Cays as having been claimed by
63
Nicaragua in 1904, in the context of that dispute.
4.50. But as described in the Counter Memorial and further below,
Nicaragua did not persist with its claim to False Cape Cays, and it has long
abandoned its claim to sovereignty over the False Cape Cays. Nicaragua
accepts that those Cays are subject to the sovereignty of Honduras. The
islands which Nicaragua does now claim - including Bobel Cay, South
Cay, Port Royal Cay and Savanna Cay- were not claimed by Nicaragua in
1904, and were not claimed by Nicaragua until it filed its Memorial in
2001. It is ironie indeed that Nicaragua should now seek to claim
sovereignty over these islands by reference to a solitary document in 1904
which makes no claim (or even reference) to the islands in question. The
logic ofNicaragua's argument is not immediately apparent.
4.51. In putting forward (belatedly) its version of events, Nicaragua 64
attempts to challenge the events set out in Honduras' Counter Memorial.
It does so as follows:
1. Nicaragua claims sovereignty over the islands and cays in
question by stating that "in 1869 Nicaragua had already issued
legislation on turtle fishing in an island "jurisdictional district"
in the Caribbean, subjecting the fisherman to payment of duty
which she attempted to collect in or before 1896
[and]Nicaragua went so far, in 1904, as seizing several
Cayman schooners. "65
2. Contrary to the record that demonstrates that Nicaragua made
no claims regarding the islands north of the 15th parallel,
Nicaragua states that "[t]his is not true."6 In support it cites a
1904 concession for the exploitation of coconut palms located
"on the Atlantic coast and adjacent islands" and a letter listing
islands1and cays that included False Cape cays located north of
the 15 harallel.
62 NR, para 6.118(b). Nicaragua refers to the dispute with the United Kingdom in Chapter
4 (paras 4.46 to 4.53), and Chapter 6 (paras 6.91, 6.93,nd 6.115), and it is also
the subject of the Addendum (page 211) to the Reply; the relevant annexes are NR,
Annexes 28 and 39.
63 NR, para 4.48.
64
HCM, paras 3.9-3.13. See also HCM, Additional Annexes, annexes 171-176.
65 NR, para 4.47.
66
NR, para 4.48. 73
3. Nicaragua claims it was not "discussing any boundary or
maritime jurisdiction with Great Britain," with regard to the
turtle fishing dispute and therefore did not have an opportunity
to present claims. 67 While challenging Honduras' title
Nicaragua argues that besides the Cayman fishermen, it was
the Miskito Indians south of the Coco River who were involv68
in turtling off the coast ofNicaragua and in the Caribbean.
4.52. Nicaragua's position is at variance with the facts, and the evidence.
As Honduras indicate:din the Counter Memorial, a number of species of
turtles migrate northwards up the coasts of Nicaragua and Honduras and
have been identified in Nicaragua's Mosquito cays, in the cays and islands
north of the 15 1hparalle/, and in Honduras' Bay Islands of Roatan and
69
Guanaja. According to the Govemor of Jamaica the dispute could be
defined as 'embracin,gall the sea, and unoccupied sand banks and reefs,
outside the 3 mile limit from the Mosquito Coast ... beginning ...in latitude
13' north to ...latitude:16' north..." Similarly a Memorandum prepared for
the British Foreign Office, by the commissioner of the Cayman Islands in
1957 states inter aliathat "the turtle are taken on the banks, shoals and cays
that lie off theHondw·anand Nicaraguan coasts." 70
4.53. In response to (1) above, two points maybe made. Firstly while
Nicaragua may havt: issued legislation on turtle fishing in an island
"jurisdictional district" in the Caribbean, it did not identify or demarcate
any of the cays and islands now claimed by Nicaragua. As the Counter
Memorial makes clear, the decrees in question refer to fishing in the
"waters of the republic," in "Nicaraguan territorial waters," "the turtle
fisheries of the Caribbean Sea belonging to Nicaragua," " on the Atlantic
Coast and adjacent islands" orthose ''within3 nau71cal miles ofNicaraguan
territorial waters and the cays, islands or land." Secondly, the seizure of
Caymanian vessels by Nicaragua in 1904was very controversial. While the
Nicaraguan govemment maintained that the schooners were seized within
Nicaraguan territorial waters the United Kingdom did not recognize
Nicaraguan sovereignty over the area in question. The United Kingdom
was able to provide evidence to support its view. 72
4.54. With regard to (2), there appearto have been two decrees approving
contracts between the:government and Mr. Gross. The one relied upon by
67 NR, para 4.49.
68
NR, para 4.51 (empha.sisadded).
69 HCM, para 3.9 (empba.sisadded).
70
Memo from The Public Records Office, FO 371/126556.
71 HCM, para 3.11 and note 16. See also HCM, Additional Annexes, annex 172.
72
HCM, Additional Annexes, annex 171. 74
Nicaragua relating to coconut palms only refers to the False Cape cay, an
island not claimed by Nicaragua in this dispute. 73 Another decree set out in
the Honduras Counter Memorial relates to turtle fisher74s and this pertained
to "the Atlantic coast and adjacent islands." There was no exact
definition of what amounted to Nicaragua's coast and which adjacent
75
islands were being claimed.
4.55. With regard to (3), Nicaragua argues that it was not "discussing any
boundary or maritime jurisdiction with Great Britain," and therefore did not
have an opportunity to present claims. This is far from the case. The
circumstances leading up to the setting up of the Nicaragua and United
76
Kingdom Mixed Commission are set out in Honduras' Counter Memorial.
As stated in the Counter Memorial, while the negotiations were pending,
the United Kingdom obtained evidence of the long standing and
uninterrupted use of these islands and cays by Caymanian fishermen, which
demonstrated that there were no marks of Nicaraguan sovereignty over the
cays around the 14thpara77el i.e. Sucra cay (Old Mahegan), let alone any
north of the 15thparallel.
4.56. The Mixed Commission agreed upon in 1905 by Nicaragua and the
United Kingdom was charged with the task of determining which cays and
banks were subject to Nicaragua's jurisdiction. 78 As stated in the Counter
Memorial, the instructions issued to the Mixed Commission were based on
the premise that Nicaragua claimed only the cays in and around the
Mosquito 79ys and Morrison cays, all of which are south of the 15th
parallel.
4.57. The resultant bilateral treaty addressing turtle fishing rights of the
Cayman Islanders only referred to 'turtle fishing in the territorial waters of
Nicaragua' and 'waters and cays in the jurisdiction of Nicaragua', and not
purport to extend - and was not in practice applied - to turtle fishing north
ofparallel15. This treaty formed the basis for turtle fishing by the Cayman
Islanders in Nicaragua until 1960, when the Nicaraguan government
73
HCM, Additional Annexes, annex 173.
74 HCM, Additional Annexes, annex 172.See also HCM, para 3.11.
75 HCM, Additional Annexes, annex 173.
76
HCM, paras 3.19-3.12 with the relevant additional annexes.
77 HCM, Additional Annexes, annex 171.
78
Ibid.
79 The Report of the Commission, identified 11 islands or banks over which Nicaragua
had jurisdiction, and none of the islands claimed by Nicaragua in its Memorial in these
proceedings was claimed by it in subrnissions to the Mixed Commission. The
northernmost Nicaraguan island mentioned is Edinburgh Cay, at 14' 48 N latitude.
HCM, Additional Annexes, annex 175. 75
decided not to renew the islanders' fishing privileges. Even in the 1950's,
at the timeof the las·:extension of the bilateral treaty, Nicaragua bad still
not defined itserrit01ialjurisdiction or sovereignty over any of the islands
it now claims.
4.58. Contrary to Nicaragua's present position that this was not a clear
and formai opportunity to present its maritime and boundary claims, the
contemporaneous record reflects otherwise. Nicaragua did not claim - and
was not recognised by the Mixed Commission as being entitled to claim -
jurisdiction over anyof the islands, reefs, cays and banks north of parallel
15 which it has claimed for the first time in its Memorial of April 2000.
4.59. A Foreign Office Memorandum states that in 1904 the Nicaraguan
government promised to provide an 'exact listof ail cays and islands over
which jurisdiction was claimed,' but it failed to do The British Foreign
Office was convincedlthat the Nicaraguan government would be unable to
provide such a listas the Nicaraguan authorities bad no reliable chart or
information of the an:a and 'navigation of that coast was performed by the
80
Caribs (natives of the coast of Honduras) and Cayman Islanders."
4.60. In Chapter 6 of its Reply, Nicaragua again refers to the turtle
fishing dispute in the mistaken belief that it supports the Nicaraguan case.
Here it admits thathe dispute related to the determination of "title to small
isletsof the mainland coast ofNicaragua."1In an effort to demonstrate that
third partiesecogn iic~r:gua's sovereignty over the islands in question,
Nicaragua refers to 'the turtle fishing dispute and the negotiations with
Great Britain as indi::ative of Great Britain's recognition of Nicaragua's
82
sovereignty over thes,;:islandsThis questionable assertion is reiterated in
the Addendum. The documents annexed to the Reply do not indicate any
such recognition. Assuming arguendo that Great Britain did recognise
Nicaragua's sovereignty over certain islands in the region, this recognition
could only have been limited to the Mosquito and Manof War Cays, which
were the only cayscl~L by N icragua.83
4.61. The Addendum sets out selective and self-serving quotations from
certain documents in1hePublic Records Office, London. Taken as a whole,
these documents in no way support the claim that Nicaragua now seeks to
make. The Reply's Annex 39, (a compilation of Foreign Office
80 HCM, para 3.11 and accompanying notes. Another Memorandum from 1953 states that
"the Nicaraguans ...have virtually no interest in the capture of turtle" and Nicaraguan
Indiansfished inside the three mile limit, and the Caymanian techniques of capturing
the turtle alive was abook to them." FO 371/103436.
81 NR, para 6.91. This claim is reiterated in paras 6.93 and 6.108.
82
NR, para 6.115.
83 HCM, paras 3.9-3.13. 76
Memoranda) in an Extract from letter from Mr R.H Kennedy dated 27 h
November 1958 notes with regard to the cays inter alia
"Half Moon Reefs: On the west side there is Logwood Cay and on
the south side Burn cay ........ These reefs lie east-north-eastward
of the mouth of the Rio Wanks which forms the boundary between
Nicaragua and Honduras. They might therefore be claimed to be
on the continental shelf of Honduras, depending on how the
boundary across the shelfbejinally agreed." (emphasis added)
4.62. This clearly indicates that Nicaragua is wrong when it asserts that it
has for a long period exercised sovereignty over the islands and cays in
question and the fact that Third Parties have recognised this sovereignty. It
makes clear that the United Kingdom was not aware as at 1958 of any
claim by Nicaragua to the islands north of the 15th parallel. Indeed,
Nicaragua puts no evidence before the Court to show that it made such a
claim. The fact that certain British officiais speculated as to what
Nicaragua's claim might be is immaterial. The United Kingdom
Memorandum also expressly raises the possibility that the cays in question
could be part of Honduras. Another Memorandum dated 7 April 1959states
inter alia that that in959the British Colonial Office was "still considering
with the Foreign Office and t84 Admiralty the question of the extent of
Nicaraguan territorial waters."
4.63. Nicaragua's Addendum states that "in order to fish in Nicaraguan
waters [the Caymanian fishermen] are first obliged togo to Cape Gracias in
order to formally enter Nicaraguan territorial waters." This clearly implies
that none of the area between the Cayman Islands and Cape Gracias
(including waters north of the 15th parallel) were considered to be
''Nicaraguanterritorial waters".
E. CONCLUSIONS
4.64. In summary, the evidence which has been tendered by Nicaragua is
insufficient to establish a claim to title over the islands north of the 15th
parallel. Nicaragua's practice in respect of oil concessions has been
consistent in recognising the 15thparallel as the northem limit of such
concessions, and it has never granted any concession north of that parallel
or over any of the islands. lt has been unable to produce a single fisheries
license or concession to establish regulation of fisheries activity north of
the 15thparallel. lt has produced no evidence of any third party recognition
of its sovereignty over any of the islands. It has not demonstrated that it has
conducted any public works on or around the islands, or that it has placed
84
NR, annex 39. 77
any navigational markers on or around the islands. lt has introduced no
evidence to prove that it has ever applied or enforced anyf its laws
(administrative, criminal, civil) in or around the islands or at any place
north of th15thparallel, or that it has ever regulated immigration or labour
in any are north oth 15~hparallel. Its own cartographie evidence is flatly
inconsistent with a daim to sovereignty over the islands. And it has
provided no evidence that it has ever protested Honduranectivitover
the islands that it now claims.
4.65. In these circwnstances and on its own merits Nicaragua's claim to
sovereignty over islands north of the 15thparallel is implausible and
unsupported by Nicaragua's evidence.As compared with the evidence of
Honduran effectivitthere is no basis for any such claim. 79
CHAPTERS:
HONDURAN EFFECTIVITÉS AND SOVEREIGNTY
OVER THE ISLANDS
5.01. Chapter 4 of this Rejoinder demonstrated the paucity of evidence
upon which Nicaragua has relied to support its claim to sovereignty over
the insular and maritime areas north of the 15th parallel. In Honduras'
submission that clai:m is implausible on its own merits. It becomes
completely untenabh: as compared with the substantial evidence on
effectivitéput forward by Honduras in its Counter Memorial. This Chapter
addresses Nicaragua'!>failed effort to pick at the compelling evidence put
forward by Honduras in its Counter Memorial demonstrating its
longstanding exerciseof sovereign authority.
5.02. In its Counter Memorial, Honduras set forth facts in reliance upon
the principles and standards applied by the International Court of Justice.
The Counter Memorial confirmed Honduras' effective administration over
the insular and maritime areas north of t15th parallel. This is particularly
clear in respect of three matters which the Court has treated as being
especially relevant: the grant of oil concessions, the grant of fisheries
licences and concessions, and the construction by public authorities of
markers and other navigational aids. These were not the only indicators of
sovereign authority, however. The Counter Memorial demonstrated
Honduras' longstanding application and enforcement of laws and
regulation and the public administration of private economie activities in
that area. Honduras demonstrated that its nationals live and work on the
islands north of the 15thparallel, and that foreign nationals (including
Nicaraguans) live and work on the islands only where duly authorised by
the Honduran authori1ies.In sum, the Counter Memorial demonstrated that
the 15thparallel was long treated as the traditional boundatY as well as
Honduras' effective administration, relying in particular on evidence that
Honduras, within the i.nsularand maritime area north of t15thparallel:
HCM, Chapter 6.
2 See also Statement of Mr Arnulfo Pineda Lopez and Luis Andres Torres Rosales, HR,
annex249. 80
Exercises administrative control over, and applies Honduran
3
public and administrative legislation and laws;
4
Applies and enforces its criminal and civillaws in the area;
Regulates the exploration and exploitation of oil and gas
activities;5
Regulates fisheries activities; 6
7
Regulates immigration;
Carries out military and naval patrols and search and rescue
operations; 8and
Engages in public works and scientific surveys. 9
5.03. In its reply Nicaragua has attempted to respond to this clear and
compelling evidence of longstanding Honduran effectivités.The following
section responds to these Nicaraguan arguments. It does so by reference to
the material which Nicaragua addressed, as weil as that which it ignored,
and the absence of any evidence of Nicaraguan protest at Honduran
effectivités. And it does so by reference to additional materials (included
in the annexes to this Rejoinder) which support and strengthen Honduras'
case. That new material includes:
Honduran legislation dating back to 1936 which expressly
mentions one of the islands now claimed by Nicaragua;''
Fisheries concessions dating back to the 1970's which refer
expressly to the 15th parallel as the southem limit of the
12
concessions·
'
3
HCM, paras. 6.9-6.17.
4
HCM, paras. 6.18-6.23.
5 HCM, paras. 6.24-6.28.
6
HCM, paras. 6.29-6.50.
7
HCM, paras. 6.51-6.59.
8 HCM, paras. 6.60-6.63.
9
HCM, paras. 6.64-6.67.
10
See also in this regard the Note of Ministry of Foreign Relations of Colombia, 28
February 2003, HR, annex 236, confirming the absence of Erotest by Nicaragua in
respect of Colombian activities relating to areas north of the 15 parallel.
11
The Agrarian Law of 1936, HR, vol 2, annex, 242. See also the 1950 Agrarian Law,
HR, annex 243.
12 HR, Plates 38, 39 and 40. 81
Further material relating to oil concessions which demonstrates
the 15thparallel was13reated by bath Parties as the limit of their
respe cotcisions; and
Further witness statements which confirm inter alia
longstanding naval patrols by Honduras around the islands.
A. HONDURAN OIL AND GAS CONCESSIONS
5.04. In its Counter Memorial Honduras provided incontrovertible
evidence as to its longstanding practice (dating back to the 1960's) of
granting oil and gas concessions in the maritime and insular areas north of
the 15thparallel, a·~stab leissuhernmogst limits of its oil and gas
concessions atparalld 14°59.8'. The oil concessions encompassed not
only the maritime areas but also the islands, and were based on the mutual
understandingof Honduras and Nicaragua that the 15thparallel was the
location of the maritime boundary between the two States, as the witness
statements of thPre~id efHtonduras and relevant officiais at the time
16
make clear. The cornection between the oil concessions and activities on
the islands is demonstrated by the work carried out by an oil company
(pursuant to Honduran government approval) on Babel Cay in the 1960's
and 1970's.7
5.05. In its Reply Nicaragua has not challenged this evidence of
Honduran practice granting oil concessions.
5.06. Moreover, Nicaragua has provided no evidence that it has ever
protested Honduras' practicef granting concessions in the area now
claimed by Nicaragua, or of authorizing oil and gas related activity in these
concession areas. Nic:araguadoes not explain how its failure to protest at
any time in the 1960's and 1970's, or at any time subsequently, can be
consistent with its claimere can be no doubt that the title to the islets in
dispute rests with Nicaragua".
13
HR, annex 252.
14 HR, see for example, annex, 251.
15
HCM, para 6.26 and 6.28.
16 See Statement ofMr Oswa1doLopez Arellano (President of Honduras, 1965-1971 and
1972-1975), HR, annex 246; Statement of Mr Rafael Leonardo Callejas Romero who
served asnder Secr•!taryof State and Secretary of State in the Honduran Ministry of
Natural Resources from 1972-1980, HR, annex 247; and Statement ofMr Reniery E1vir
Aceituno, Directoreral of the Office of the Bureau of Mines and Hydrocarbons at
the Honduran Ministry ofNatural Resources (1968-1974), HR, annex 248.
17 See below at para 5.14; and HR Annex 264.
18
NR, para 6.118. 82
5.07. Faced with such overwhelming evidence, Nicaragua chooses
instead to focus on a small number of its own concessions that do not refer
expressly to the 15thparallel but do refer to the boundary with Honduras as
not having been determined. In fact, and as explained above, none of these
19
concessions in actual practice extends beyond the 15th parallel.
Nevertheless, to make its case, Nicaragua argues that "[e]ven a minimal
extension of one of the Nicaraguan concession areas northward of this
parallel would have placed the islets in dispute inside the concession areas
concemed". 20That may be theoretically true. But it has never happened: the
evidence before the Court shows that Nicaragua has never extended any of
its concessions to any point or location north of the 15thparallel. And the
record shows that the islands fall within the area of Honduran oil
concessions: see for example, Plate Il of the Honduras Counter Memorial.
5.08. Nicaragua also seeks to challenge Honduras' claim by relying on
selected extracts of the Eritrea/Yemen arbitration. In particular, it relies on
21
paragraph 423 of the Award of9 October 1998. This is said to support the
proposition that Nicaragua's failure to grant concessions north of the 15th
parallel and "stopping short of certain islands" should not "carry any
22
implication for the entitlement to the islands in dispute". Nicaragua's
approach is misconceived. The Eritrea/Yemen Award strongly supports
Honduras' approach, and its claim, for three reasons.
5.09. First, Nicaragua's argument ignores the fact that Honduras'
concessions do extend to and encompass the islands in question, and have
23
never been the subject ofprotest by Nicaragua.
5.1O. Second, in the paragraph in question, the Arbitration Tribunal noted
the existence of a disclaimer in the relevant Ethiopian concessions. The
disclaimer stated:
"nothing said herein above is to be deemed to affect or prejudice
in any way whatsoever the rights of the Govemment in respect of
its sovereign rights over any of the islands or the seabed and
subsoil of the submarine area beneath the high seas contiguous to
its territorial waters or areas within its economiezone".
The Nicaraguan concessions contain no such clause. They limit themselves,
when establishing the northem border of sorne of their oil concessions, to
"intersection with the border line with the Republic of
referring to the
19
Supra, para 4.20 et seq.
20 NR, para 6.38.
21
Eritrea!Yemen (Phase 1), Award, 114 ILR 1.
22
NR, para 6.39.
23 HCM, Plates 11 and 13. 83
24
Honduras, which has not been determined." There is no mention of any
islands, or any reservation in respect of sovereignty or sovereign rights
north of the15thparallel.
5.11. Third, and most significantly, the Arbitration Tribunal in
Eritrea/Yemen procet!ded on the basis that the Ethiopian concessions
merely reflected "teehnological and commercial realities", namely the
inability to exploit oil in a "deep trough that runs through the middle of the
Red Sea". Nicaragua has adduced no evidence to show that any equivalent
technological or commercial reality prevented it from granting concessions
north of the 15thparallel. Indeed, on its own argument as to the so-called
''Nicaraguan Rise", 25 the area north of the 15thparallel constitutes an
unbroken continuation of the relevant continental shelf, and can have posed
no impediment to exploration or exploitation north of the15thparallel. This
is confrrmed by Honduras' concessions in the area in question. It is
confirmed by the three Honduran wells drilled without Nicaraguan protest
in the area now clairned by Nicaragua. lt is also confirmed by the joint
Coco Marina project which straddles the 15thparallel and which necessarily
required the authorisation of both States. This is readily apparent from
Plates 35 and 36. There are no "technological and commercial realities"
which have prevented Nicaragua from offering concessions north of the
15thparallel.
5.12. There is a further point. Nicaragua has failed to refer the Court to
the entirety of paragraph 423 of the Arbitration Tribunal's Award. In
particular, it omittht c~ncluding sentence of that paragraph, in which the
Tribunal states: "But Ethiopia's contract with International Petroleum is
important." The Arbitration Tribunal explains the importance of this
contractin the following terms:
"IfYemen had se~cu anedread Amoco's Annual Reports ... and
if Yemen had evinced the alertness it did inrespect of Eritrea's
contracts of 1995 and 1996, it would have seen that Ethiopia
claimed the right to contract for the exploration, development and
production of oil in an area claimed as its territory that included
sorne or virtually all of Greater Hanish islands. [...]
[I]t has been demonstrated that ... Ethiopia did grant a concession
including much·orvirtually all of the Hanish Islands, and that Yemen
failed to protest that agreement. It is of further interest that the map
attached to the Production Sharing Agreement speaks of drawing the
24
See, e.g., NR, vol 2, rumex 18a.
25 NM, p 161. 84
boundary along the international median line between Yemen and
Ethiopia." 26
This conclusion applies equaliy in the present case. Honduras bas long
claimed the right to contract for the exploration, development and
production of oil in the area north of the 15thparaliel which is now claimed
by Nicaragua as its territory (including ali of the islands which Nicaragua
bas put into dispute). Honduras bas granted concessions and conducted 27
drilling and other activities in the area, encompassing ali ofthese islands.
These Hondurans acts are public and Nicaragua bas been aware of them for
decades. Yet Nicaragua bas never protested any of these activities or
agreements, including those which expressly recognised a boundary along
the 15thparaliel.
5.13. In addition to the evidence included in its Counter Memorial,
Honduras here refers to further evidence which confirms its exercise of
sovereignty over the area north of the 15thparaliel, including the islands, in
the context of the grant of oil concessions. The evidence is conclusive in
relation to the joint operation of the Coco Marina weli, located on the 15th
paraliel. Pursuant to the Petroleum Law of 1962 and other Honduran
legislation, the Union Oil Company of Honduras submitted periodical
reports to the Ministry ofNatural Resources of Honduras in relation to the
Coco Marina well. In these reports Union Oil explains that the joint
operation took place "in the area of the maritime boundary in the Caribbean
Sea between Honduras and Nicaragua" (i.e. respectively on the Honduran
and Nicaraguan sides of the 15thparalie1). The reports also confirm that
the joint operations bad been approved by the Governments of Honduras
and Nicaragua with the understanding that expenses incurred in such
operation would be covered in equal terms by Union Honduras and Union
Nicaragua. 29In these circumstances there can be no doubt that Nicaragua
had knowledge of the Honduran authorisation of the operations on the
northern si de of the 15thparallel, and recognised Honduras' sovereign
rights in that area.
5.14. The activities associated with oil exploration on the Honduran side
were also closely connected with activities on the islands. For example, in
respect of Honduran authorised exploration activities carried out for Union
26 Supra n. 21, Award, para 433-4.
27
Oil concession granted to Pure Oil Company of Honduras in 1967 (later on extended to
its successornion Oil Company of Honduras) comprised, in lot No. 8, cays Bobel,
Savanna, South and Port Royal. HCM, vol2, annex 192 and HCM, voll, Plates 11 and
13.
28 Report from Union Oil Company of Honduras to the Minister of Natural Resources of
Honduras, 6 June 1969, HR, annex 252.
29
Ibid. Plate 35: Location of Coco Marina within
Honduran Oil Concession AreaRAN CIL CONCESSION AREA
NoteTht<:o.KI..tlror'llïll'ur,:~n!(lj
ofth•ar'do!tM1 PLATE 35:LOCATION OF COCO MARINAWITHIN
Honduran
Territorial
Se a
co~r:t({S<!
tiiOIOQ~
Nic•raguan
Territorial
Sea
Coco Marina Lat. 15°00'00"N
Long. 82°43'29'V\
Bobel Cay Lat. 15°04'54.-42(
Long. 82°40'30.-gPlate 36: Location of Coco Marina Oit
Concession Granted by Honduras (within
Territorial Waters of Bobet Cay) PLATE 36: LOCATION OF COCO MARINA OIL CONCESSION GRANTED B~
---
,~fthill<lttf
..\.,..~
-ii.;.trrwf
l ....
).;,.(···
" .. . ("~-
~
\ ••l'f·'<lro!l
Sea 85
Oil Company in a concession north of the 15thparallel, that company
retained the services of Geophysical Service Inc. to place antennae on
30
certain islands. The antennae were placed on base stations as part of a
local geodetic network in that partof Honduras, to assist in drilling activity
pursuant to the coneessions. These activities began around 1969 and
involved the placement of antennae in 1972 (River Coco island) and 1975
(Bobel Cay). The antenna on Bobel Cay was ten metres high. Periodical
reports submitted by Union Oil to Honduran authorities twice a year also
referred to these activities, indicating also the payment of taxes to
31
Honduras in respect of these activities. A photograph is available at
Annex 264. This provides a further example of the public works carried out
pursuant to Hondura.n authorisations, on the islands now claimed by
Nicaragua.
5.15. Against this background it is clear that Nicaragua is not in a
position to challenge Honduras' arguments that the oil concessions
represent a tacit agreement on the part ofboth Statesas to the existence of a
boundary along the 15thparallel. The practice under the oil concessions -
including Nicaragu aalure;to protest - points decisively in favour of
Honduras' claim that a traditionalline exists and is tacitly agreed to in the
practice of the Parties.
B. HONDURAS REGULA TES FISHERIES ACTIVITIES
NORTH OF THE 15TH PARALLEL
5.16. In its Counter Memorial Honduras provided extensive evidence
demonstrating its long-standing regulation of fisheries activities in the
maritime and insular area north of the 15thparallel. This material indicates
fisheries activities which have taken place "on the basis of official
regulations or under governmental authority". The Court has affirmed that
such activity is of a nature as to give rise to effectivitésThe contrary
33
position articulated by Nicaragua is not tenable.
30 Geophysical Service !ne., Final Report of GEOFIX Survey Honduras conducted for
Union Oil Company, April-May 1975. HR, vol2, annex 264.
31
See, e.g., Report from Union Oil Company of Honduras to the Minister of Natural
Resources of HonduniS of 26 November 1975, HR, annex 254. See also Report from
Union Oil Corporation of Honduras to the Minister of Natural Resources of Honduras
of 6 June 1969, HR annex 252, and Report from Union Oil Company of Honduras to
the MinisterfNatun1l Resources of Honduras of 19 March 1979, HR annex 253, for
another example.
32 Supra, para 2.28.
33
NR, paras 6.49, 6.52 and 6.107. 86
5.17. Nicaragua devotes considerable effort to attacking this evidence.
This amounts to a recognition of the extent to which Honduras' evidence of
long-standing regulatory activity in and around the islands undermines
Nicaragua's recently discovered claim that "title to the islets in dispute rests
with Nicaragua". 34 Indeed, the fact that Nicaragua has gone to such lengths
to respond to the Honduran evidence is incompatible with that claim. This
is ali the more so having regard to the fact that Nicaragua has not been able
to provide any fisheries licences or concessions of its own. Honduras has
taken the opportunity to introduce further materials confirming the merits
of its arguments: see below at paras 5.22 et seq.
5.18. Honduras will not respond at this stage to each of the claims raised
by Nicaragua, a great number of which raise "smokescreens" intended to
cloud the substantive arguments (for example, Nicaragua's failure to
engage substantively with the evidence is reflected in the comments
5
conceming the two bitacoras, which are not substantive in character)?
Nevertheless certain responses are called for.
5.19. Three preliminary points may be made. The first is that Nicaragua
challenges the sufficiency of the evidence to support Honduras' claim to
effectivités, not its authenticity. Second, Nicaragua provides no evidence
whatsoever to indicate that it has ever protested any of the fisheries activity
described in the Counter Memorial. And third, there are severa! matters on
which Nicaragua remains silent: for example, Nicaragua is silent about
evidence provided in the Honduran Counter Memorial referring to fishing
licences having been obtained from Honduran authorities as early as the
36
1950s.
5.20. As regards the grant by Honduras of fisheries concessions (to
companies) and licenses (to individuals), it is plain that they relate to the
area directly north of the 15thparallel, including that around the islands in
question. This is clear from the text of the documents and the various
7
witness statements? It is simply wrong for Nicaragua to assert that t38
regulation of fishing activity is not relevant to title to the islands. And it
34
NR, para 6.118.
35
Nicaragua points out a typing rnistake, and criticises the fact that nobitacoras
represent the same area nor the same geographie features, NR, vol 1, para 5.39 and
6.50. Precisely, differbitacorasare issued to fish in different areas, and only need to
reflect most relevant geographical features.t should be noted that in Honduran
bitacoras while latitude differs, parallel 15th is always the southernmost lirnit
represented. See HCM, vol3, Plate 31.
36
Statement of Daniel Santos Solabarrieta Armayo, HCM, vol2, annex 82.
37 HCM, vol 1, paras. 6.34-6.36, 6.43-6.44, 6.50, and, e.g., HCM, vol 2, annexes 66, 67,
74, 77,80, 84, 87, 88,89, 90, 91, 92, and 93.
38
NR, para 6.49. 87
misses the point for Nicaragua to assert that Honduras has not produced
any fisheries legislation or licenses "making reference to the islets". 39By
focusing on individual instruments or statements Nicaragua loses sight of
the overall picture, which describes a longstanding fishery activity in the
area in question regulated by the public authorities of Honduras. In respect
of the evidence included in the Counter Memorial, Nicaragua states that
Honduran fishing concessions did not state that the 15thparallel was the
boundary with Nicaragua. However, Nicaragua does not dispute that (1) the
southernmost limit mentioned in these concessions was the Coco River, or
(2) that fisheries activities were to occur in the seas and not in mainland, or
(3) that the direction to be followed was "northbound" (and not, for
example, "southeast"). It follows that the only possible conclusion to be
drawn from these c:oncessions and licenses is that the southernmost
boundary of the concessions must be the 15thparallel from the mouth of the
Coco River.
5.21. Having challenged Honduras' fishing licenses and concessions, one
would have expected Nicaragua to provide evidence of its own, in the area
north of the 15th parallel, or to provide copies of its own bitacoras in that
area. But it has not done so. As indicated above, there is no evidence before
the Court of Nicaraguan licenses or concessions which refer to the islands
or which explicitly or implicitly encompass waters north of the 15th
parallel.
5.22. Against the paucity of Nicaraguan material, the examples of
Honduran evidence s.et forth in the Counter Memorial plainly meet the
criteria set by the International Court. Honduras does not consider it
necessary to overwhelm the Court with concessions, licenses and witness
statements. But lest it be said that what has already been provided is not
sufficient, it is appropriate here to provide a few more examples of
concessions granting rights specifically over the area now claimed by
Nicaragua. In no case has Nicaragua protested the publication of these
authorizations or any activities carried out pursuant to them.
5.23. Three Honduran fisheries concessions granted between 1975 and
1979 are annexed. Plates 38 to 40 represent the areas covered by these three
fishing concessions. The frrst one was published in August 1975. It grants
fishing rights over an area expressly delimited to include a southernmost
limit at the 15th parallel.0 The second authorization was published in
January 1977. It includes express reference to a southem limit of the fishing
41
concession along the 15thparallel. A third concession dates back to July
39
Ibid.
40 HR, vol 2, annex 256.
41
Resolution of the Ministry of Natural Resources of Honduras of 7 January 1977
conceming an applicf,tion for extension of a provisional fishing permit submitted by 88
1976 and was published in March 1979. It too authorizes fisheries activities
42
in an area north of the 15thparallel which Nicaragua now claims. These
concessions encompass Babel Cay, South Cay, Port Royal and Savanna
Cay.
5.24. In its Counter Memorial, Honduras introduced numerous witness
statements which attest to fisheries activities authorised by Honduras. In
response, Nicaragua invokes the Eritrea/Yemen arbitration, where bath
sides in the dispute had43ubmitted "numerous witness statements" and
"interesting evidence". Once again Nicaragua cites an authority which
does not assist its case. As the Arbitration Tribunal put it:
"For State activity capable of establishing a claim for sovereignty,
the Tribunal must look to the State licensing and enforcement
44
activities conceming fishing described above".
Beyond the licenses and concessions which have been produced (see
above ), this is precisely the evidence introduced by the twenty eight
Honduran witness statements. These do not provide evidence of private
activity: they attest to the fact that the fisheries activities which were
carried out in the area north of the 15thparallel were licensed by Honduras,
and also that they have been the subject of enforcement by the Honduran
authorities. These statements are to be taken with the other evidence on
fishing concessions, registration of vessels, operation of naval patrols, and
other related activities - allf them the kind of "licensing and enforcement
activities" considered acceptable by the Arbitral Tribunal in Eritrea/Yemen.
5.25. Nicaragua chooses to ignore this aspect of the witness statements.
The point may be illustrated by the following examples:
Maurice Loy Gowe, a Jamaican fisherman who has been
fishing around Savanna Cay for more than thirty years, states:
"I fish here because 1 have been provided with a
licence by the Honduran fishing authorities. 1
always go to Puerto Lempira to renewal my
licence. [...] The exporting of fish to Jamaica is
allowed through a licence issued by the Honduran
Government. [...] These bouses [on Savanna Cay]
"Pescados y Mariscos de Honduras, S.A. de C.V." (PYMHSA). HR, vol 2, annex 258.
See also Request by PYMHSA, Official Gazette of Honduras No. 21.626 of 1 July
42 1975, HR,vol2, annex 257.
Agreement No. 469 of 12 July 1976, Official Gazette of Honduras No. 22.763 of 28
March 1979.HR, vo12, annex 259.
43
NR, para 6.52. The six witness statements submitted by Nicaragua can hardly be
described as "numerous".
44 Eritrea/Yemen (Phase 1Award, 114ILR 1,para 315.Plate 38: Limits of Fishing Areas Covered
by Concession Granted by Honduras to
Empresa del Mar, S.A. de C.V., 1975lnlulr:::.,.,IQNGRANTED BY HONDURAS
c.v., 1975
;:':~~-~' '(._...,.,.,.,PLATE 38: LIMITS OF FISHING AREAS COVERED BY
TO EMPRESA DEL MAR, S.A
Source: Agreement No. 2of2 June 1975, OfficcalPlate 39: Limits of Fishing Areas Covered
by Concession Granted by Honduras to La
Sociedad Mariscos de Bahia S.A. de C.V.,
1976PLATE 39: LIMITS OF FISHING AREA COVERED B'
TO LA SOCIEDAD MARISCOS DE 8.
Source: Agreement No. 469 of 12 July 1976, Official11"'.'v•G,ANT;D~BY HONDURAS
S.A.DEC.V., 1976Plate 40: Limits of Fishing Area Coveredby
Provisional Permit Granted by Honduras to
Mariscos de Bahia S.A. de C.V., 1977PLATE 40: LIMITS OF FISHING AREA C0\1
GRANTED BY HONDURAS TO MARISCOS
Source: Resolution of the Ministry of Natural Resc BY PROVISIONAL PERMIT
S.A. DE C.V., 1977
• ~------~ ''1'-
·~.
.)
of Honduras of 7 January 1977 89
have been legally constructed with the consent of
the Honduran authorities. AU these houses are
enumerated and registered in the municipality of
Puerto Lempira. ,,4
The Migration Delegated Officer in Puerto Lempira explains,
about the Jamaican and Nicaraguan citizens living on the cays:
"[i]n order to work in the cays, the Town Hall of
Puerto Lempira issues a provisional work permit
to th~ J:maicans and Nicaraguans as at present
there is no employment office open in Puerto
Lempira. ,,4
Mr. Fabiàn Flores Ramirez, current Port Supervisor in Puerto
Lempira a.ndformer Master's Assistant at the Port states:
"in the course of his duties he has patrolled with
the Migration authorities and other authorities
from Puerto Lempira and has visited all the cays,
in particular, South Cay, Savanna Cay, Bobel,
Gorda Cay.'.-4
Mr. Mario Ricardo Dominguez, Honduran fisherman who
stored his fishing equipment in South Cay, explains:
"in order to conduct his fishing equipment he
applü f~rsa fishing permit each year from the
Fishing Inspector in Puerto Lempira and satisfies
the appropriate tax thereon; [...]the Jamaican boat
which acquires their product obtains its export
permit from the Customs Authorities in Puerto
Lempira where they pay their taxes; he as a
8
fishetman pays his taxes in Puerto Lempira.,,4
5.26. Nicaragua as:;;erts that the Honduran statements "make only a
general reference to cays or mention specifie activities in respect one of
the islets in dispute and then continue with a general statement about
'cays"'.49 To suppmt this assertion Nicaragua refers to sorne witness
statements in the Honduran Counter Memorial. Nicaragua quotes
selectively from thes dtpositions, citing to only a paragraph or a page of
each. A reading of the whole text shows that most statements make explicit
45 HCM, vol2, annex 67.
46 HCM, vol2, annexT..
47
HCM, vol 2, annex 7].
48 HCM, vol 2, annex 80.
49
NR, para 6.56. 90
references to the specifie islands and all of them clearly illustrate Honduran
presence in and around those islands over an extended period. Nicaragua
states that "more than 10 of the depositions" provided by Honduras make
general references to "cays". In fact Honduras can only count four
statements referring to the cays which do not mention at least one of the
islands in question, namely South Cay, Bobel Cay, Port Royal Cay or
Savanna Cay. 50
5.27. Most ofthe statements chosen by Nicaragua to illustrate the alleged
generality of the Honduran evidence are very specifie when not taken out
of context: for example, Nicaragua asserts that the deposition in Annex 71,
at page 199 of the Hondu51n Counter Memorial "refers to activities that
take place 'at the cays'." If one turns to the beginning of this deposition,
at page 198,the following statement appears: "he [the deponent] has visited
South Cay and Savanna ca y; in these visits he has verified that most of the
people that live in the cays are Jamaican..." The deponent then refers to
these Jamaican citizens and to the cays previously mentioned. The evidence
cannot be said to be general: it refers specifically by name to two islands
which Nicaragua now daims.
'5.28. As another example, Nicaragua states that "none the [sic]
depositions in Annex 89 to 94 specify which islets were concerned in
response to a question which makes also reference to islets that are outside
the area in dispute in the present proceedings". 52 Again, Nicaragua
misreads the statement, and relies on this inaccurate reading. The question
to which the Honduran witnesses respond is the following: "Did the fishing
vessels use, at any time, the cays of Media Luna, South cay, Bobel and
others, how were said cays used?" There is no reference to any cays which
are "outside the area in dispute". Similarly, in Annexes 93 and 94 the
witnesses refer expressly to South Cay and Savanna Cay. Nicaragua has
simply misread and then misrepresented the witness statements.
5.29. In para 6.58 of its Reply Nicaragua criticises Honduras on the
grounds that the witness statements "in general do not link specifie events
to specifiedates," that a number of them "give 'hearsay' evidence" and that
"sorne of the persons concerned have never been in the islets at all or not in
the period of relevance for the present dispute." To sustain this Nicaragua
chooses to refer to only three Honduran witness statements: in the first one,
at Annex 70, the deponent, a Honduran citizen, had himself worked in
Bobel cay when he was twelve years of age (which was in the 1920s); the
second witness, at Annex 78, deposes on the basis of his direct experience
50 HCM, vol2, annexes 72, 76, 78 and 81.
51
NR, note 334.
52 NR, note 334. 91
as a primary school t€:acherand as Mayor of his Municipality. He testifies
about the linkages between local communities in the area and the fishermen
living in the cays, as well as about administrative matters such as payment
of taxes or work permits, all of which occur on mainland; the fact that he
has not actually visited the cays is irrelevant to the value of his statement.
Similar conclusions may be made in respect of the third statement referred
to by Nicaragua, namdy Annex 81, which is a short statement provided by
the head of the Moravian Church in Honduras.
5.30. Nicaragua also makes other, more specifie assertions. Nicaragua
states that two witness statements submitted by Honduras contradict
Honduras' "a53ertion that the islets in dispute have been inhabited for a
long time". Aside from the fact that Honduras has not made an assertion
in the terms indicated by Nicaragua, a reading of the two witness
statements shows that it does not contradict Honduras' claim that the
islands "have long served - and continue to serve today-as bases used by
the fishing community to carry out their activities." 54 The first statement
5
does not contradict Honduras' assertion 5 and the second witness statem56t
refers only to non-habitation by "foreign persons" (i.e. Nicaraguans).
5.31. As regards Honduran title and jurisdiction as reflected in various
57
international fisheries reports dating back to 1943, there is no evidence
before the Court to indicate that Nicaragua has ever protested (or otherwise
challenged) their vera,;:ity.These consistently show fishing banks and other
geographical points located north of the 15thparallel as being treated by
relevant organisation:; as falling within the territory or jurisdiction of
Honduras. Nicaragua has not introduced any equivalent reports which
demonstrate any international recognition that fisheries activities within
that area lie within the territory orjurisdiction ofNicaragua.
5.32. Nicaragua cla:lffisthat this material does not amount to third party
58
recognition of Honduran sovereignty or jurisdiction. The argument is
without merit. Nicaragua does not dispute the relevance of the 1943 Report
of the United States Fish and Wildlife Service. Instead it makes the rather
53
NR, para 6.59.
54 HCM, para 6.29.
55
HCM, vol 2, annex 82.
56 HCM, vol 2, annex 83.
57
Honduras had referred to the 1943 United States Fish and Wildlife Service Report; the
FAO Regional Project of Fishing Development in Central America carried out mainly
in the early 1970s; the:FAO Program on "Investigation and Commercial Evaluation of
the Main Maritime Fü:hing Capacities of Honduras in the Northern Zone" carried out in
collaboration withthe: United Nations Development Program (UNDP) and the Inter
American Developme11tBank (IDB): HCM, paras 6.31-6.33.
58
NR, vol1, paras 6.81 :md 6.46. 92
weak point that the Report's silence asto certain cays amounts to them not
59
being Honduran. Admittedly, not each and every feature is named in this
report, but it is readily apparent that islands and cays referred to in the
report include all ofthose which are now the subject ofNicaragua's claim.
5.33. It is notable that Nicaragua does not address the substance of the
F AO reports and ignores the point that the FAO reports make explicit
references to Cay Media Luna and to Thunder Knoll, Rosalinda and Del
Medio fishing banks, and treats them all as being located in Honduras.
Nicaragua seeks to undermine the F AO reports on the Regional Project of
Fishing Development in Central America (FAO Project) introduced by
Honduras and carried out mainly in the early 1970s by referring to a
different document - the Final Report on the Regional Project of Fishing
Development in Central America - which includes a note stating that
names employed in the Report do not imply any judgment on the legal or
60
constitutional situation of any territories or maritime areas. The document
does not assist Nicaragua. First, the relationship of this disclaimer to the
F AO reports introduced by Honduras is unclear. Second, the extracts of this
Final Report (which are reproduced in Annex 19 of the Nicaraguan Reply)
do not make reference to any geographie locations, including within the
area north of the 15thparallel, so it is difficult to assess to what territories or
boundaries the report might have been referring. Third, the reports
introduced by Honduras and produced in the context of the same FAO
project refer explicitly to the relevant cays and maritime areas north of the
15th parallel, and they treat them unequivocally as falling within the
territory of Honduras. These documents include no disclaimers as to the
legal value oftheir use of geographical names. 61The reports relied upon by
Honduras from the two other projects cited in the Counter Memorial 62
similarly do not include disclaimers of the kind relied upon by Nicaragua.
5.34. Nicaragua also seeks to undermine the reports of the FAO Project
in other ways. It refers intermittently to different reports, (sorne recently
introduced by Nicaragua itselt) as though they were one. 63 Moreover, on
one of these reports, which relates to research in the Pacifie, Nicaragua
misleadingly suggests that this report (dating back to 1970) fails to indicate
that Honduras has rights over the continental shelf in the Gulf of Fonseca,
whilst omitting to mention that it was only in 1992 that the Court
recognised Honduras historical rights in the Pacifie. Nicaragua's approach
59
"As these latter islets are mentioned nowhere in the Report, the inevitable conclusion is
that they were not considered to be part of the territory of Honduras." NR, para 6.45.
60 NR,paras 6.46 and 6.81.
61
HCM, para 6.32 and HCM, vol2, annex 163.
62
HCM, vo12, annexes 158-162.
63 NR, para 6.46; see a1soNR, vo11, note 323. 93
is apparent. It seeks to introduce confusion. It does so because it cannot
counter the central thrust of these FAO reports: the organizers and
participants of the Project entertained no doubts that the area north of the
15thparallel, including the islands, feUunder the sovereignty of Honduras.
See for example maps from the report on operations from 1968 to
64
1970, and t65 197l Report referred to in the Honduran Counter
Memorial at Annexe:s262 and 263.
5.35. Nicaragua did not object to these Reports when they were produced
between 1968 and 1971. As a country participant in the Project, Nicaragua
had direct knowledg{: of their existence and their contents. Its failure to
protest the contents - or even to enter a reservation of rights - is
incompatible with the argument it now makes.
5.36. Nicaragua also seeks to challenge the relevance of the fact that
sorne of the islands are inhabited. It states that "the habitation of an island
by a group of people does not constitute an act a titre de souverain". 66That
claim relies on dicta f0om the Court in the Kasikili/Sedudu Island case
(Botswana/Namibia). But it is quite clear from the passage cited that in
that case the habitatwn was not on the basis of any administrative or
govemmental authority or license. In the present case it is clear that
habitation (and related activities) are pursuant to licenses granted by the
Honduran authorities. For example, boats of fishermen working around the
68
cays are registered in Puerto Lempira, buildings constructed on Savanna
cay have been authorised and licensed by the same municipality, 69 and
fishing equipment is stored on South cay on the basis of a fishing permit
70
obtained from the local authorities.
64
See the maps which are appended to the Report: Summary of exploratory fishing
operations of the RIV "Canopus" in the Western Caribbean Sea from December 1968to
June 1970,pp 84-85, San Salvador, 1971,HR, vol2, annex 262. See also Annex 263.
65 Exploratory and simulated commercial fishing operations in the Western Caribbean
Sea. R1V"Canopus", May to November 1970, San Salvador 1971, HCM, vol2, annex
163.
66 NR, para 6.60.
67
ICJ Reports 1999, 1105-6,para 98.
68 See e.g., HCM, vol2, annexes 71 ("the Jamaican residents own motorboats registered
in Honduras"), and 78 ("... the Jamaicans register their vessels in Puerto Lempira;").
69
HCM, vol 2, annexes 66 ("We have constructed ali the buildings existing in the cay.
These are registered in the municipality of Puerto Lempira.") and 67 (''Thesebouses
[on Savanna Cay] have been legally constructed with the consent of the Honduran
authorities. Ali these bouses are enumerated and registered in the municipality of
Puerto Lempira.").
70
HCM, vol2, annex 80 ("he makes use of the installations located in South Cay as from
the year [1992]; the irtstaliations in question include a wooden house where he stores
fishing equipment, such as fishing nets, diving equipment, a freezer and an electricity
plant; [.. ] in order to conduct his fishing equipment he applies for a fishing permit 94
5.37. Finally, Nicaragua seeks to respond to the evidence establishing
that its own INPESCA in 1987 amended a fishing concession (following a
protest by Honduras) to limit its geographie scope of application to "areas
71
south of parallel 15". Nicaragua does not go so far as to deny that such a
change took place, although it raises the suggestion that there is something
"suspicious" about the manner in which the change occurred 72 and
introduces a statement from the then Director General of INPESCA to the
effect that he did not make the change and he "never authorized any
73
modifications to that contract". It is noteworthy that he does not deny that
the change was in fact made. Even more noteworthy, perhaps, is his
statement that "in no cases were these (areas for fishing exploitation)
74
limited to spaces south ofParallel 15". It might therefore be expected that
Nicaragua would put before the Court examples of concessions and
contracts which might confirm that fact, in particular that areas north of the
15thparallel were authorised by INPESCA or other Nicaraguan authorities
for fishing activities. No such evidence is before the Court.
C.HONDURANCARTOGRAPHY
5.38. In its Counter Memorial Honduras introduced a number of official
maps of Honduras showing, amongst others, Bobel Cay and Savanna Cay
as being part of Honduras. These maps date back as far as 1886 and 1888
(HCM, paras. 3.58 and 3.59). Nicaragua now seeks to challenge the
conclusions which Honduras has drawn from these maps.
5.39. As regards the map of 1886, Nicaragua observes that this also
75
shows cays to the south of the 15thparalle1. At that time Honduras may
indeed have claimed title over those islands, as it appeared to do by
reference to an official map produced in 1933, which defined the area over
76
which Honduras had an extended maritime claim. But that claim has not
been maintained, and a historical claim dating to those islands cannot
undermine the map's evidence of Honduras' continuing claim to islands
north of the 15th parallel. As to the 1933 map, it plainly identifies the
islands now claimed by Nicaragua as falling within a 'jurisdictional
maritime line of Honduras'. Nicaragua suggests that that fact does not
each year from the Fishing lnspector of Puerto Lempira and satisfies the appropriate tax
thereon.").
71 HCM, para 6.50.
72
NR, paras 7.64 -7.65.
73 NR, para 7.68.
74
Ibid.
75 HCM, vol 3, part 1, Plate 8 and NR, para 6.27.
76
HCM, vol 3, part 2, Plate 23. 95
necessarily mean that Honduras claims title to those insular territories. A
similar argument is made in respect of the 1954 map, notwithstanding the
fact that this map includes Media Luna Cay, as Nicaragua is forced to
recognise. Nicaragua provides no further explanation ofits reasoning. The
maps speak for themselves. They do not present any inconsistency with
Honduras' view that a1ter the Court gave its judgment in the1960 case both
Parties treated the151tparallel as theidefacto boundary.
5.40. As regards the 1933 map of Honduras published by the Pan
American Institute of History and Geography, which clearly show79the
islands now claimed by Nicaragua as being part of Honduras, Nicaragua
claims that the evidentiary value of the map is "dubious", because it may
differ from an officif1lHonduran map of the same year. 80But Nicaragua
fails to notice the express statement that this map was prepared on the basis
of the official map of Honduras. Neither this map, nor the maps referred to
above, were the subjeet of protests by Nicaragua.
5.41. Nicaragua also refers to three maps of Honduras which do not
include the islands. None is an official map of Honduras. The first was
prepared in 1894 by the Mixed Boundary Commission, and it generally
shows th81successive claims made by Nicaragua (not including the
islands). The second dates back to 1899, and was published privately in
the United States. The third is a school map published in 1984, but it too
is prepared by a private company and has no official status.3
D. HONDURAN ADMINISTRATION AND LEGISLATION
IN THE MARITIME AND INSULAR AREAS
NORTH OF THE 15rn PARALLEL
5.42. In its Counter Memorial Honduras provided extensive evidence
demonstrating that th ins~lar and maritime areas north of the 15thparallel
have long been treated as being subject to Honduras' legislative, regulatory
and administrative control. Honduran administration and the application of
its legislation has not been protested by Nicaragua. It flows directly from
authority vested in th~H onduran authorities by the country's Constitution.
77
NR, para 6.23.
78 HCM, vol 3, part 2, PLate25.
79
HCM, vol 3, part 2, PLate24.
80 NR, para 6.26.
81
NR, vol II, m1.
82 NR, vol Il, map II.
83
NR, vol II, map III. 96
The Honduran Constitution of 1957 (and of 1965) makes express reference
to the cays of Los Bajos and Palo de Campeche: Article 6 of the 1957
Constitution sets out the following islands as belonging to Honduras:
"[... ] 2. The Bay Islands, the Swan Islands, Santanilla or
Santillana, Viciosas, Misteriosas and the following cays: Gorda,
Vivorillos, Cajones, Becerro, Cocorucuma, Caratasca, Falso,
Gracias a Dios, Los Bajos, Pichones, Palo de Campeche and ali
others located in the Atlantic, which historically and juridically
belong to Honduras." 84
The Constitution of 1982 refers to Palo de Campeche, los Bajos and Media
85
Luna cays. These islands fall within the area now claimed by Nicaragua
in the present proceedings, and sorne of them fall within the area of oil
concessions granted by Honduras since the 1960's. Palo de Campeche, now
86
submerged, is now known as Logwood Cay. Los Bajos were implicitly
recognised as falling within the jurisdiction of Colombia as a result of the
Maritime Delimitation Treaty Lopez-Ramirez of 1986 between Honduras
and Colombia. For a graphie representation of the location of these cays
referred to in Honduran Constitutions, see Plate 37.
5.43. It is not only Honduras' Constitution which refers to islands now
claimed by Nicaragua. Honduras' Agrarian Law of 1936 makes express
reference to the islands of Palo de Campeche and Los Bajos (as does the
87
1950 Agrarian Law). More generally, Decree No. 25 of 1951, approving
Decree No. 96 of 28 January 1950, declares the sovereign rights of
Honduras over its continental shelf and the natural resources thereof, and
84
HR, vol 2, annex 239. Art.5 of the Constitution of 1965 recognises as belonging to
Honduras: "... The Bay Islands, the Swan Islands, also known as Santanilla or
Santillana,Viciosas, Misteriosas and the cays: Gorda, Vivorillos, Cajones,
Cocorucurna, Caratasca, Falso, Gracias a Dios, Los Bajos, Pichones, Palo de Campeche
and ali others located in the Atlantic that historically, geographically and judicially
belong toit." HR, vol2, annex 240.
85
Art. 10 recognises as belonging to Honduras: "..The Bay Islands, the Swan Islands,
also known as Santanilla or Santillana, Viciosas, Misteriosas and the cays: Zapotillas,
Cochinos, Vivorillos, Seal or Foca (or Becerro), Caratasca, Cajones or Hobbies,
Mayores de Cabo Falso, Cocorocurna, Palo de Campeche, Los Bajos, Pichones, Media
Luna, Gorda and Los Bancos Salmedina, Providencia, De Coral, Cabo Falso, Rosalinda
and Serranilla and ali others located in the Atlantic that historically, geographically and
juridically belongoit." HR, vol2, annex 241.
86
"Palo de Campeche" or "Logwood" are common names of a tree whose scientific name
is Haematoxylon campechianum, a species obtained from Honduras and other Central
American countries. Tropical Plant Database, Raintree Nutrition Inc. in
http://www.rain.tree.com/campeche.htrn and The Physiomedical Dispensatory by
William Cook, M.D., 1869 in Medical Herbalism Journal (http://medherb.com).
87 Art. 1 of 1936 Agrarian Law, Official Gazette of Honduras of20 April1936, NR, vol2,
annex 242, and Art. 1 of Decree 103 of 7 March 1950, Official Gazette of Honduras
No.14.055 of 16 March 1950, HR, vo12, annex 243.Plate 37a: Geographical Features in the
Maritime Area Northeast of Honduras
Referred to in the Honduran Constitution of
1957 PLATE 37: GEOGRAPHICAL FEATURES IN THE MARI
REFERRED TO IN THE HONDURAN CONSTITU
A) CONSTITUTION C
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'Plate 37b: Geographical Features in the
Maritime Area Northeast of Honduras
Referred to in the Honduran Constitution of
1965 PLATE 37: GEOGRAPHICAL FEATURES IN THE MAR
REFERRED TO IN THE HONDURAN CONSTITUTIOr
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F1957, 1965AND 1982 (CONT.)
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'Plate 37c: Geographical Features in the
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Referred to in the Honduran Constitution of
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lPLATE 37: GEOGRAPHICAL FEATURES IN THE MAf
REFERRED TO IN THE HONDURAN CONSTITUTIO
C) CONSTITUTION 97
declares the protection and control by the State of an extension of sea in the
Atlantic ocean of 200 miles from the Honduran coast. This includes the
whole of the area north of the 15thparallel now claimedby Nicaragua.
5.44. Nicaragua criticises Honduras for listing legislation of this kind as
being applicable to the islands and related maritime areas, but then
89
proceeds occasionally to adopt the same approach. However, what
Nicaragua has not scught to establish by way of evidence is that it has
actually applied its legislation and regulations in these areas, including the
islands. In its Counter Memorial Honduras provided ample proof of its
application of a wide range of legislation: for example, it applied the
Petroleum Law of 1962when granting its ail concessions, and the Fishing
91
Law of 1959 when issuing its fishing authorisations. Honduran courts
have applied criminal law regarding facts which occurred in the islands,
and civil law when resolving labour disputes as a result of diving accidents
92
which occurred in the area of reference. Naval patrols have enforced
Honduran legislation lnits maritimejurisdiction, whether it be for purposes
of conservation of marine natural resources, immigration control, or the
93
prevention of illegal trade.
5.45. Nicaragua does not challenge any of Honduras' evidence on
administrative acts in the area. lt introduces no evidence to establish that it
has ever protested any of these acts. Instead, it attempts a general dismissal
of Honduras' evidence by asserting that "most of the practice invoked by
94
Honduras stems from the 1990s". The approach is factually incorrect: it
ignores many administrative acts dating back to the 1960's and 1970's,
including in relation to ail and fisheries concessions, the placing of markers
95
in the cays, and naval patrols.
88
Articles 1 and 3, Offidal Gazette of Honduras No. 14.306 of22 January 1951, HR, vol
2, annex 244.
89
NR, vol2, annex 13.
90 HCM, para 6.10 and r..ote14.
91
HCM, para 6.10 and wte 18.
92 HCM, paras 6.18-6.2]. See also HCM, vol 2, annexes 73, 74 and 103 to 106 (criminal
law); annexes 100, 101, and Additiona1Annexes, annexes 180, 181, 183 to 186 (civil
law).
93
HCM, paras 6.60- 6.63. See also the witness statements at annexes 123, 73, 68, and 72.
Reports regarding Nicaraguan incursions are at annexes 139,140 and Additiona1
Annexes, annexes 216 and 217.
94
NR, para 6.33.
95 Honduras' practice has been longstanding. HCM, paras 6et seq. 98
E. THE APPLICATION AND ENFORCEMENT
OF HONDURAN CIVIL AND CRIMINAL LAWS
IN THE AREA NORTH OF THE tS™ PARALLEL
5.46. In its Counter Memorial Honduras provided extensive evidence as
to the application of its criminal and civil laws to acts and activities
occurring in the area north of the 15thparallel. That evidence stands in stark
contrast to the total absence of such evidence provided by Nicaragua, in its
Memorial and now in its Reply.
5.47. As regards the application by Honduras of its civillaws, Nicaragua
states only that they took place "after the critical date" and that they are "in
no way related to the islets in dispute".96 As to the first point, irrespective
of the date on which the laws were applied, the fact is that their application
was on no occasion protested by Nicaragua. Moreover, Nicaragua is not
able to provide even a single example showing that it has applied its civil
laws to the area in question - on any date.
5.48. Asto the second point, the laws were applied in respect of incidents
occurring inter alia on or around Middle Bank, Rosalind Bank and Tres
Nueve fishing banks. Each of these banks is treated by the Honduran courts
97
as falling within their territorial jurisdiction. All are located in close
proximity to the islands.
5.49. As regards the application by Honduras of its criminal laws,
Nicaragua's principal response is that the criminal law cases referred to
may have been brought in a Honduran court because they "concemed
Honduras nationals and n98 necessarily because the alleged facts took place
in Honduran territory." Nicaragua ignores the general rule applicable in
Honduras to the effect that the exercise of criminal jurisdiction in Honduras
is, subject to exceptions which d99not here apply, limited to acts occurring
within the territory ofHonduras.
F. HONDURAN REGULATION OF IMMIGRATION
5.50. In its Counter Memorial Honduras introduced extensive evidence
on the habitation of the islands now claimed by Nicaragua, including the
basis upon which immigration (principally of Jamaicans) has been
regulated. Formai immigration controls go back to 1997 (not 1999 as
96
NR, para 6.35.
97 See HCM, para 6.22.
98
NR, para 6.35.
99 Art. 3 of the Criminal Code of Honduras 1983, HR, vo12, annex 245. 99
Nicaragua states). 100 Moreover, the Jamaican fishermen working on
Savanna Cay make it clear in their statements that they have been fishing
around those cays since the 1960's and 1970's, and their depositions
invariably assert that those cays and all waters north of the 15th parallel
101
have always been considered by them to be a part of Honduras. Sorne of
the witness statemenu:are even more explicit. One states that:
"she is aware the Jamaicans have been in those cays since the year
one thousand nin h1~ndred and seventy two and have been granted
work permits by the Honduran authorities."02
5.51. By contrast, Nicaragua provides no evidence that it has ever
regulated immigration into the maritime and insular areas north of the 15th
parallel.
5.52. Nicaragua also takes liberties with the evidence (and the law). In
referring to the deposition of Mr. Daniel Bordas Nixon, who travelled with
his father to Bobel Cay in the 1920s to extract guano, Nicaragua makes
selective use of the information provided in the statement to suggest that
the fact that Mr. Bordas lived in Cape Gracias a Dios amounted to
establishing that he was based in Nicaragua and that therefore "historically
103
there are links between Nicaragua and the islets in question".
5.53. The assertion cannot be sustained on the basis of the information
provided in the witneHsstatement,which provides that although Mr. Bordas
was born on the right side of the river Coco his birth was registered in
Puerto Lempira, Honduras, and that he holds Honduran nationality. Mr.
Bordas explains in his statement that Cape Gracias a Dios was considered
"a territory in dispute' between the neighbouring countries, and that after
the Award of the International Court of Justice the Cape's community
became abandoned and he moved to his farm in Tusidacsa, Honduras. 104
G. HONDURAN MILITARY AND NAVAL PATROLS
AND SEARCH AND RESCUE
5.54. In its Counter Memorial Honduras provided extensive evidence to
demonstrate that it had long conducted naval patrols and search and rescue
100
See registrations of boats from 1997 indicating residence of Jamaican nationa1s in the
cays, HCM, vol2, annexes 127 and 128; or visit to the cays by the current Immigration
Officer during years 1997, 1998 and 1999, HCM, vo12, annex 71.
101 HCM, vo12, annexes 66, 67, and 68.
102
HCM, vo12, annex7~'.
103 NR, para 6.63.
104
HCM, vo12, annex70. 100
activities in the area north of the 15thparallel. Honduras relied on no less
than seventeen annexes of official military records 105 and six witness
106
statements. In addition there are numerous diplomatie notes.
5.55. By contrast, Nicaragua relies on just two witness statements to
challenge this material. And even this limited testimony is flawed. On the
basis of the first witness statement, Nicaragua refers to Honduran patrols
107
not being present in the area before Nicaragua's "critical date" of 1977.
But in his statement Mr. Arturo Mohrke Vega, the deponent, does not
mention any date. And if there were to be any, it would have to be prior to
108
1975, the date upon which he retired from his job as ship's captain.
5.56. As regards the second statement, the witness states that "[i]n recent
years ... there have been sorne problems with Honduran authorities in the
area from parallel [17] to [15] which has [sic] affected fishing operations of
109
Nicaraguan vessels." Notwithstanding the flexibility of the phrase "in
recent years", it is noteworthy that Nicaragua has re-interpreted the
statement to support its claim that "Honduran authorities only have started
to pose a problem to Nicaraguan fishing vessels to the north of the parallel
of 15thin recent years." 110That is not what the witness said.
5.57. Honduras now puts before the Court further statements providing
evidence of military patrols in the area, which support Mr. Mohrke's
statement that Honduras' presence in the area pre-dates 1976, the date upon
which the Honduran Navy was established. 111 Mr. Cristobal Cano is a
Retired Naval Officer who served at the Naval Base in Puerto Cortes from
1967 until 1991. His statement attests that: 112
In his first assignment he learnt that "the border with Nicaragua
was an extension from Cape Gracias a Dios along the parallel
set at 14 Degrees 59.8 Minutes North", and that this was
referred to as "the border of the 15thParallel";
As early as 1968 he was involved in patrols in "the fishing
areas northeast and east of Gracias a Dias Department
105
HCM, vol2, annexes 129-145.
106
HCM, vol2, annexes 68, 71, 72, 73,75 and 78.
107 NR, para 5.4 (iv), and para 6.65.
108
NR, vol2, annex 23.
109
NR, vol 2, annex 24.
110 NR, para 6.65 (Emphasis added).
Ill
The frrst naval detachment, as part of the Army, was established in Puerto Cortes in
1946 when routine patrolling began.
112
HR, vol 2, annex 251. See also a report on exploration of Serranilla's Area of 7
December 1978 signed by Mr. Cristobal Cano in vol2, annex 265 of this Rejoinder. 101
(Province) and immediately north of the [15th]Parallel" (during
that patrol he learnt that this area had been considered by the
natives of the Bay Islands as their traditional fishing grounds
many years before, perhaps as early as the 1930's);
Such patrols continued in subsequent years;
in 1974, in cooperation with the Commander of the Military
Unit in the Department (Province) of Gracias a Dias, two new
boats (th ~Cabanas" and "Morazân") began patrolling the
Maritime frontier and the fishing banks of Honduras, North of
the 14°59.8'N. Parallel;
In August 1976 the Honduran Navy was established, and with
the assistance of a new 105 foot patro1boat the Navy was able
to extend its patrol capabilities to all of the maritime
possessions of Honduras, including in the Atlantic North of
14°59.8':~an o the 200 miles ofEconomic Zone;
Patrolsw~re made to Ralf Moon and Savanna Reefs and to the
islands now claimed by Nicaragua, and sorne of these islands
indicated "remnants of recent habitation and hurried departure
by almo:o;tcertain Jamaican fishermen", whose presence
"invariabl.y was on the little islands or cays that were
permanently above water, that had marginal vegetation,
minimal access from the sea and proximity to the big fishing
banks", and "little islands or cays where we always found signs
ofhuman presence were Babel Cay, South Cay, two cays in the
HalfMoon Reefs area, and in lesser amount Cay Garda."
H. HONDURAN PUBLIC WORKS AND SCIENTIFIC SURVEYS
5.58. In its Counter Memorial Honduras provided numerous examples of
public works and scientific surveys which it had carried out in the maritime
and insular areas north of the 15thparallel, including triangulation markers
(used for navigational purposes), as well as other navigational aids and
demarcation devices. 113These kinds of activities are recognised by the
Court to beof particu:larimportance in establishieffectivitéin relation to
small islands. As the Court put itQatar/Bahrain:
"The construction of navigational aids, on the other band, can be
legally relevant in the case of very small islands. In the present
case, taking into account the sizeof Qit'at Jaradah, the activities
113 HCM, paras 6.64-6.67. 102
carried out by Bahrain on that island must be considered sufficient
to support Bahrain'sclaim that it has sovereignty over it." 114
5.59. In the face of such compelling evidence Nicaragua adopts an
entirely artificial approach. It argues (1) that the 1976 Arrangement
between Honduras and the United States (pursuant to which the markers
were constructed on the islands) does not actually mention the islands, and
(2) the markers were only placed on Savanna Cay, South Cay and Bobel
115
Cay "after the critical date". The reality - as Nicaragua no doubt
appreciates - is that the project for the placing for the markers commenced
in 1976 with the adoption of the Agreement (at a time when the
Government of Nicaragua had excellent relations with the United States),
and was concluded in 1980 and 1981 with the placing of the triangulation
markers. Nicaragua has never protested the 1976 Agreement, or the project
it established, or the placing of the markers. It has never sought to remove
the markers, in the more than 20 years since they were placed. The markers
constitute both a public act of sovereignty by Honduras and an act of
recognition by the United States. Nicaragua cannot get round those facts by
artificiallegal arguments.
5.60. As regards, the placement of beacons and buoys, Nicaragua points
to a lack of reference to the relevant cays in the document submitted by
116
Honduras. Again Nicaragua misses the point. As Annex 145 makes clear,
the installation of the navigational aids by the armed Forces of Honduras
occurred both on land and at sea (buoys), and the commitment of the Naval
Base of Puerto Cortés was that the buoys should be placed at latitude
15°00' and longitude 81°33', and at latitude 15°00' and longitude 82°20'.
Both points are treated by Honduras as being within areas located within its
sovereignty orjurisdiction. 117
5.61. Further evidence ofworks carried out on Bobe1Cay by Union Oil
pursuant to Honduran authorisations - includes the 10 metre antenna
constructed on Bobel Cay in 1975. 118
114
ICJ Reports 2001, para 197. At para 198 the Court recalled an observation of the
Permanent Court of International Justice iLegal Status of Eastern Green/ancase,
that: "It is impossible to read the records of the decisions in cases as to territorial
sovereignty without observing that in many cases the tribunal has been satisfied with
very little in the way the actual exercise of sovereign rights, provided that the other
State could not make out a superior claim." (PCIJ, A/B,eNo. 53, p 46).
115
NR, para 6.68.
116
See HCM, vol2, annex 145and 155;NR, para 6.69.
117 The reference made by Nicaragua to theritrea!Yemen Award (para 283) refers to the
publication of notices and pilotage instructions, not to the placement of beacons and
buoys.
118
Supra, para 5.14. 103
I. RECOGNITION BY THIRD STATES AND OTHER ENTITIES
5.62. In its Counter Memorial Honduras provided extensive evidence of
third State recognition of Honduras' sovereignty over the islands, including
on the part of the United States and Jamaica.
5.63. Nicaragua's response is weak. For example, in relation to the act of
recognition reflected in Jamaica's request to have access to Honduran
waters around the islands, Nicaragua asserts that "[t]he request shows
uncertainty over the name of the islet concemed and does not indicate the
coordinates at which it is located."119In fact the note reproduced at Annex
19 of the Counter Memorial indicates that the shipwrecked sailors to be
rescued were at "Savanna or Savanilla Cay". Itis clear that a second,
alternative name is provided for the same cay and that no coordinates were
necessary given that the cay of reference was weil known to ali parties
involved, including Jamaica.
5.64. Similarly implausible is Nicaragua's effort to discredit the
recognition of the United States reflected in the placing of markers in a
joint project carried out on behalf of Honduras by the National Port
Authority on Bobel, Savanna and South Cays. Nicaragua asserts that ''the
markers concemed are just a metal dise i120 concrete base, making them
only detectable at a close distance". The size and detectability of the
markers is not the point. As indicated above, the triangulation markers were
placed with the assistance of the United States pursuant to a 1976
Agreement. Indeed, the marker on Bobel Cay is engraved with 'lnstituto
Nacional Geografico, Honduras, C.A.' The Nicaraguan authorities were
aware of the placing of the markers. As a joint operation by Honduras with
the United States, they have never protested to the United States or to
Honduras the plain recognition of title, which is reflected also in the
relevant gazetteers of the two countries (see below).
5.65. Nor did Nicaragua protest the placing of a 10 metre antenna on
Bobel Cay, in 1975. 121
5.66. Another examp1e of Nicaragua's inability to accept the plain
meaning of text is n:flected in its argument that the 1943 Report of the
United States Fish and Wildlife Service, referred to above, "only refers to
cays to the north of the area in dispute in the present proceedings
119
NR, para 6.72.
120 NR, para 6.73.
121
Supra,para 5.14. 104
(Caratasca cays)". 122The relevant paragraph of the 1943 report is worth
reproducing:
"There are a number of islands and cays lying off the coast. The
most important are the Bay Islands: Roatan, Bonacca, Utila, and
the Caratasca Cays. The Bay Islands are populated and they offer
shelter foroats".
Nicaragua displays considerable imagination in its efforts to divine from
this paragraph the conclusion that the 1943 Report refers only to cays north
of Caratasca.
5.67. Relatedly, Nicaragua accuses Honduras of being misleading when
stating that United States Gazetteers on Honduras and Nicaragua "are
partially based on Honduran and Nicaraguan official information". To
mak:eits case, Nicaragua quotes a paragraph from this publication which
states that"[w]herever possible, gazetteer production is carried out with the
123
cooperation of the country concemed". But it puts no evidence before the
Court to support any claim that it did not provide information to those in
the United States who prepared the Gazetteer.
5.68. Moreover, Nicaragua ignores the following paragraph of its own
Nicaraguan Gazetteer, which confirms that Honduras' allegedly
"misleading" sentence is accurate:
"[rn]ost of the names that were re-examined for this edition can be
identified and located by the approved name or a recognizable
variant of the approved name on one or more of the following
sources:
a) Republica de Nicaragua 1:1,000,000, Instituto Geogrâfico
Nacional, 1981
b) Republica de Nicaragua1:2,000,000, Instituto Geogrâfico
Nacional, 1980
c) Joint Operations Graphie 1:250,000 (Series 1501),
Department of Defense, U.S. Army Topography
Command or Defense Mapping Agency
Hydrographie/Topographie Center, 1971-1981
d) Nicaragua 1:50,000 (Series E751 and E752), Army map
Service/Direcci6n General de Cartografia or Instituto
Geogrâfico Nacional/Inter-American Geodetic Survey
(IAGS), 1956-1972." 124
122 NR, para 6.76.
123
NR, para 6.77.
124 Gazetteer ofNicaragua, 1985, HR, vo12, annex 268. 105
5.69. This Nicarag11anGazetteer is dated November 1985, being a
revision of its 1976 second edition. It makes it clear that the names of
locations (including cays) were re-examined and sorne new locations were
added. None of the cays north of the 15thparallel are referred to in this
edition or, apparently, in any the earlier editions.
5.70. Nicaragua also seeks to derive assistance from the 1995 "Sailing
Directions" issued by the US Defense Mapping Agency, which divides
maritime areas into particular sectors.5Sector 5 includes Nicaragua, and
Sector 6 includes Honduras, the relevant dividing line being in relevant part
the 15th parallel. Honduras sees nothing in the material tendered by
Nicaragua which enables it to avoid that fact. Nor has Nicaragua raised any
material which enables it to challenge the fact that the 1993 Charts
published by the British Hydrographer of the Navy treat the islands now
126
claimed by Nicaragua as being located in Northem Honduras.
J. CONCLUSIONS
5.71. In summary, the evidence which has been tendered by Honduras
provides compelling evidence of title over the islands north of the 15th
parallel. Honduras' practice in respect of oïl concessions has been
consistent in recognising the 15thparallel as the southem limit of such
concessions, and some of these concessions encompass the islands which
have been put in dispute by Nicaragua. Honduras has demonstrated that its
own Constitution has made reference to sorne of the cays since 1957, and it
has provided further examples of fisheries licenses and concessions to
establish its regulation of fisheries activity north of the 15thparallel. It has
introduced examples of agricultural laws dating back to 1936 which make
express reference to one of the cays, and it has produced clear and
incontrovertibleevid~: o fchird party recognition of its sovereignty over
the islands. It has demonstrated that it has conducted significant public
works on or around the islands, including the placement of navigational
markers on or around the islands. It has introduced clear evidence
establishing its application and enforcement of its laws (administrative,
criminal, civil) in or around the islands and in areas north of the 15th
parallel, and its regulation of immigration and labour. Its cartographie
evidence is unchallenged by Nicaragua.
5.72. One aspect of Nicaragua's Reply is of great significance:Nicaragua
introduces no evidence that any of the acts referred to in Honduras'
Counter Memorial and this Reply have ever been the subject of a protest by
125
NR, para 6.78 and HCM, Additional Annexes, annex 230.
126 HCM, para 6.71. 106
Nicaragua. By contrast the evidence of diplomatie notes demonstrates that
on each and every occasion that Nicaragua has sought to make incursions
north of the 15thparallel such act has been protested by Honduras. 127
5.73. In these circumstances and on its own merits Honduras' claim to
sovereignty over the islands is compelling, in accordance with the
principles applied by the International Court and by other international
tribunals. The de facto boundary at the 15thparallel reflects Honduras' title
over those islands.
127
HCM, paras 3.22-3.24. See also para 6.76. See also Honduran diplomatie notes of
protest, vol 2, annexes 25,30, 33 and 40. 107
CHAPTER6:
GEOGRAPHie FACTORS
6.01. The geographie setting of this and any other maritime boundary
case concems the coasts of the Parties that face the area to be delimited and
the maritime area itself. Chapter 2 of the Honduran Counter Memorial
addressed this subject.
6.02. However, if Nicaragua's Reply is to be believed, Honduras
inadequately presentt::dthe relevant geographie circumstances. Nicaragua
says that Honduras has an "Aversion to Coastal Relationships," an 1
''unconventional approach to geography," an argument that has "No
3
Relation to the Geographical Context," etc. Nicaragua concludes "that the
Honduran conception of the geographical context is artificial, legally
inadequate and unhelpful to the Court... ". Honduras submits that this is
not true. The traditionalline which has been used by the Parties is fully in
accord with the geographie circumstances.
6.03. The criticism levied at Honduras by Nicaragua cornes from the
Party in this case that has a truly unique approach to the geographie factors
that bear on maritilffie delimitation. Nicaragua mischaracterizes and
overstates the geographie relevance of Cabo Gracias a Dios where the land
boundary meets the sea. Nicaragua argues that the entire coastline of both
countries is relevant to the delimitation rather than the coasts that face the
maritime area to be delimited. Nicaragua ignores without any evaluation
the islands ofboth Parties and the effect they have on the delimitation. Yet,
Nicaragua harkens to the geomorphological factors of the seabed as if the
5
Court had not firmly dismissed their relevance in the Libya-Malta case.
NR, p 15, Chapter II, Section 1.
2 NR, p 15, para 2.3.
3
NR, p 16, Chapter II,ction III.
4 NR, p 16, para 2.7.
5
ICJ Reports 1985, p 13, paras 35-41. 108
6.04. To ensure that there is no doubt about the relevant geographical
circumstances in this case, Honduras now undertakes an additional
examination of this subject, which demonstrates that the traditional line is
fully in accord with the geographical circumstances. This chapter addresses
four issues.
the unique geographical feature of Cabo Gracias a Dios where
the land boundary meets the sea;
the coasts of the Parties that face the delimitation area;
the islands and rocks of importance to this case which lie in
front of the land boundary terminus; and
the non-relevance of shallow geomorphological sea floor
features.
A. CABO GRACIAS A DIOS:
WHERE THE LAND BOUNDARY MEETS THE SEA
6.05. An analysis of the geographical circumstances pertinent to a
maritime boundary delimitation question between neighbouring States
sharing the same mainland coast begins with an examination of the place
where the land boundary meets the sea. In this case the land boundary
follows the River Coco, which runs east as it nears the coast, and meets the
sea at the eastern tipof Cabo Gracias a Dios. As the Parties have pointed
out, the mouth of the River Coco is subject to considerable accretion and
erosion. Thus, while the legal position of the land boundary terminus is
known, its geographical position is subject to change and always will be.
There is no difference between the Parties on this question.
6.06. The fact that a land boundary between two States follows a river to
the sea is common. Furthermore, it is not unusual for such river mouths to
be subject to natural forces so that their shape and position change with
time. In constructing maritime boundaries, States have dealt with such
situations. These characteristics do not pose insurmountable problems that
stand in the way of establishing equitable maritime boundaries between
neighbouring States. In Chapter 8 on the Honduran line, the particular
character of the mouth of the River Coco will be examined closely in
connection with Honduras' suggestion for the first segment of the single
maritime boundary between Honduras and Nicaragua.
6.07. The River Coco reaches the sea at the eastern tip ofCabo Gracias a
Dios. Honduras agrees with Nicaragua that Cabo Gracias a Dios continues 109
6
to accrete seaward. The result is that by accretion the symmetrical cone
like protrusion of Cabo Gracias a Dios continues to be enhanced eastward
into the Caribbean Sea.
6.08. Cabo Gracias a Dios is a cape. A cape is defined as an extension of
land jutting out into the water. 7 A cape often marks an exceptional
geographical coastal configuration in the circumstances. Cabo Gracias a
Dios is such a feature. Its almost perfect cone-like symmetry, with the land
boundary entering the sea at the eastern tip of the cone, is clearly an
unusual coastal configuration and will be particularly noticeable to
mariners.
6.09. In sorne situations, a feature such as Cabo Gracias a Dios might
distort the geograph:1cal relationship between two countries insofar as
maritime delimitation is concerned. But here it does not. The reason it does
not is the position of the land boundary terminus at the eastern tip of the
cape. Furthermore, the eastern protrusion of the coast of Central America
that is produced by Cabo Gracias a Dios is symmetrical. The northern
Honduran coast of the cape is mirrored by the southern Nicaraguan coast of
the cape. On the coast, Cabo Gracias a Dios is almost perfectly divided
between the neighbouring States at the land boundary terminus at the
eastern tip of the cape. Because the land boundary enters the sea at the very
eastern tip of Cabo Gracias a Dios, the Honduran and Nicaraguan coasts of
the cape neither hav(: the effect of "pulling" nor "pushing" the maritime
boundary one way or the other as it begins its seaward reach eastward from
Cabo Gracias a Dios. Thus, the traditional line has always run due east
from the cape. In summary, because of the shape of the cape and the
position of the land boundary terminus at its eastern tip, Cabo Gracias a
Dios is a geographie feature that does not advantage one side or the other.
6.10. There is another geographical characteristic ofCabo Gracias a Dios
that should be noted. When considered in terms of local coastal geography,
a cape will reflect a departure from the direction of the coast from which
the cape projects outward. Whether a cape does more and also marks a
major change in coas1al direction when viewed in broad terms is a question
to be decided in each individual case.
6.11. The central thesis of Nicaragua's case is that there is a major
change in the direction of the coast of Central America at Cabo Gracias a
8
Dios. That simply is not true. Nicaragua argues repeatedly that the coasts
6 NR, p 11, para 19; NR, p 29, para 3.10.
7
Merriam Webster's Co/legiate Dictionary, lOth edition, p 168.
8 NM, p 14, paras 31-32; NR, p 29, para 3.9. 110
of the Parties "roughly constitute the two sides of an inverted right angle," 9
but Nicaragua's argument disregards the placement of the land boundary
terminus.
6.12. This core geographie fact may be illustrated by reference to British
Admiralty nautical chart 2425. This is a large scale chart that Nicaragua
10
relies upon. It is an "old-style" Admiralty chart which is nonetheless
maintained up-to-date. This chart is reproduced here as Plate 41, however
with several place names highlighted for ease of reference.
6.13. As can be seen, Nicaraguan and Honduran land territory cover the
left sideof this chart. The River Coco (Wanks) land boundary runs east to
the eastern tip of Cabo Gracias a Dios. It may be noted that Cabo Gracias a
Dios extends east only slightly further than the longitude of Nicaragua's
coast at Punta Gordo. The Honduran coast leaves the chart in its upper left
band corner just north of Cape Falso; the Nicaraguan coast leaves the chart
in its lower left band corner at about 14° 05' N. latitude just north of the
Nicaraguan town of Puerto Cabezas, which is not shown on the chart.
6.14. It should be clear from an examination of this chart (i) that Cabo
Gracias a Dios is a cape on the eastward facing coast of Central America,
(ii) that Cabo Gracias a Dios is almost a perfect symmetrical cone-like
feature divided at its eastern tip by the Honduras-Nicaragua land boundary
terminus, and (iii) that from the top to the bottom of this chart there is no
major change in the direction of the coast of Central America: thus, there is
no major change in the direction of the coast at Cabo Gracias a Dios. This
latter point should be manifestly obvious. If Cape Falso and Puerto Cabezas
are on basically the same longitude, there is no major change in the
direction of the Central American coast that runs between them. Of course,
there are eastward protrusions, such as at Cabo Gracias a Dios and Punta
Gordo, but that does not detract from the fact that the coast of Central
America runs basically in a north to south direction from Cape Falso in
Honduras along the entire Nicaraguan coast as shown on this chart and
further south to Nicaragua's land boundary with Costa Rica.
6.15. The land boundary thus reaches the sea along this linear eastward
facing coastal front of Central America albeit in the middle of the
protruding symmetrical cone-like cape-like geographie feature of Cabo
Gracias a Dios that is shared between the Parties. Cabo Gracias a Dios is a
protrusion in the eastward facing coastal front of Central America, just as is
Nicaragua's Punta Gordo to the south, but neither ofthese eastward bulges
9
NM, p 14,para 31.
10 Nicaragua's Map A in vol III of its Memorial is a composite of various British
Admiralty charts. Admiralty chart 2425 is one of the large scale charts that the smaller
scale Map A is built upon. Plate 41: British Admiralty Chart 2425
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in Central America's coast marks a major change in the direction of the
coast of Central Ametica.
B. THE COASTS OF THE PARTIES THAT FACE
THE MARITIME AREA TO BE DELIMITED
6.16. The relevant c:oastfor maritime boundary analysis is the coast that
11
faces the maritime area to be delimited. This ineludes the coasts of the
Parties on either side of the land boundary terminus to a distance
appropriate to the circumstances. 12 The relevant coast will not extend
13
beyond where it ceases to face the maritime area to be delimited. If the
coast turns away from the area to be delimited, it will no longer be deemed
to be relevant; however, if the coast tums so as to continue to face the area
to be delimited, it then may continue to be a relevant factor in the
delimitation.
6.17. In this case, the Nicaraguan coast extends slightly west of south
after Cabo Gracias a Dios ali the way to the Nicaraguan border with Costa
Rica. That does not mean however that this entire eastward facing
Nicaraguan coast is relevant. Where the shared coast of the Parties is nearly
linear, and where the respective neighbouring coasts of the Parties do not
swing inward to face the area of delimitation from another direction, the
length of the relevant coast of one Party should not be substantially greater
than that of the oth1 ~hi. is so because there is no advantage to a
relatively longer coast in such circumstances where the coasts do not tum
inward on the area to be delimited. Thus, it is only the projection of the
neighbouring coasts in the vicinity of the land boundary terminus that may
be said to converge and overlap.
6.18. In this case, the Honduran segment of the coast of Central America
continues its northwalfd extension beyond Cabo Gracias a Dios to about
Cape Falso (approxirnately 15°15' N. latitude) where it begins to swing
toward the west. At about 16° N. latitude the coast tums more sharply so
that it runs almost du€:west. The coastal direction tum at Cape Falso marks
the beginning of a major change in direction of the Central American coast
which is completed at about 16° N. latitude. However, it must be
11 Nicaragua, at pages 114-115 of its Memorial, reproduces the Court's teaching in this
regard from thebya-Tunisia judgment but fails to heed the Court's words. "The area
in dispute, wheroneclaim encroaches on the other, is that part of this whole area
which can be considered as lying both off the Libyan coast and off the Tunisian coast."
(ICJ Reports 1982, p :.8, 61, para 74, emphasis added.)
12 ICJ Reports 1982, g,85, para 120.
13
A coast that does not face the area to be delimited can no longer be said to be a coast
whose projection converges and over1aps with that of the coast of a neighbouring State. 112
emphasized that beginning at Cape Falso the Honduran coast is swinging
away from the area to be delimited not toward it. Thus, the northward
facing coast of Honduras west of Cape Falso has no relevance in the
maritime boundary analysis between Honduras and Nicaragua.
6.19. Since the land boundary meets the sea along a portion of the
Central American coast that faces east, only such eastward facing coasts are
relevant, unless there is a southward facing coast of Honduras, or a
northward facing coast of Nicaragua, that face the area to be delimited
which there are not, but for the presence of islands. As for the length of the
eastward facing coasts of Honduras and Nicaragua that may be regarded as
relevant, it is suggested that they are the Honduran coast from Cabo
Gracias a Dias to Cape Falso and the Nicaraguan coast from Cabo Gracias
a Dias to about Laguna Wano (also known as Laguna de Bismuna).
6.20. These separate Honduran and Nicaraguan coasts are aligned from
north to south as demonstrated by a line connecting Cape Falso with
Laguna Wano, as may be discerned by examining a portion of British
Admiralty chart 2425 reproduced at Plate 42. They bath span about 15
minutes of latitude. They are separated by the symmetrical cone-like
protrusion of Cabo Gracias a Dias. While the local Honduran coast
between Cabo Gracias a Dias to Cape Falso runs northwest, and the local
Nicaraguan coast between Cabo Gracias a Dias to Laguna Wano runs
southwest, these localized coastal directions do not deny the fact that the
Central American coast south of Cape Falso to Nicaragua's border with
Costa Rica faces east. Also, these Honduran and Nicaraguan coasts face,
respectively, the islands in the vicinity of the land boundary terminus: on
the one band, the Honduran islands north of 15° N. latitude to 15°15' N.
latitude; and, on the other band, the Nicaraguan features in the vicinity of
the land boundary terminus to the south.
6.21. The overall length of these respective relevant coasts of the Parties
is therefore relatively short, but this is dictated by the geographical
circumstances. These circumstances include the change in coastal direction
away from the area to be delimited which begins at Cape Falso, the
placement of the land boundary terminus at the eastern tip of a coastal
protrusion, and the fact that the maritime boundary cannat extend very far
to the east from the mainland before it must respect the islands of one Party
or the other Party as the boundary makes it way between them and extends
further to the east.Plate 42: British Admiralty Chart 2425 showing the east facing coastal features of Honduras and Nicaragua
lRCLUDIJrG
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C. THE ISLANDS AND ROCKS OF IMPORTANCE TO THIS CASE
WHICH LIE IN FRONT OF THE LAND BOUNDARY TERMINUS
6.22. Nicaragua mischaracterizes the Honduran position when it says that
"Nicaragua and Honduras agree that 14e delimitation has to be effected on
the basis of the mainland coasts." It is true that the Honduran line is the
traditional line which adopts a delimitation method that follows a parallel
of latitude for all the reasons given. Thus, it is not a line constructed by
measurement from various points on the coast or islands. This does not
mean that Honduras believes that the islands and rocks 15 of the Parties can
be disregarded. Indeed, they must be respected.
6.23. It is one thing for a maritime boundary to respect the islands and
rocks of the Parties, and quite another for the maritime boundary to be
constructed using a delimitation method that is based on measurements of
distance from certain geographie points, including points on islands or
rocks as appropriate. In the former case, a boundary that respects islands
and rocks will ensure that those belonging to one Party are not placed on
the other Party's sid cf~the boundary. In the latter case, a delimitation
method such as equidistance may or may not be applied so as to construct
the boundary based on measurements from points on islands or rocks as the
circumstances require.
6.24. The Honduran line respects the island and rock features of both
Parties.It separates them so that the Honduran islands and rocks are on the
Honduran side of the maritime boundary and the Nicaraguan islands and
rocks are on the Nicaraguan side of the boundary line. In contrast, the
Nicaraguan line does not respect the Honduran islands and rocks because it
places them on the Nicaraguan side of the line. Thus, even though
Nicaragua has not Œquested the Court to engage in a determination of
territorial sovereignty, it sets forth a line that not only would be a maritime
boundary, but a lim: attributing sovereignty to islands and rocks and
attempting to overtumlong-established Honduran sovereignty.
6.25. Chapters 3, 4 and 5 of the Rejoinder have restated the basis for the
Honduran position that the islands and rocks lying north of 15° N. latitude
are Honduran, and has provided the factual and legal basis on which
Honduras relies. Those representations will not be repeated here. However,
14 NR, p 32, para 3.18.
15
In terms of Article 121 of the 1982 United Nations Convention on the Law of the Sea,
features that areve water at hide-tide are either a rock or an island. An island is such
a featuref it is capable of sustaining human habitation or having an economie life of its
own, while a rockŒs not have those characteristics. A rock nonetheless is entitled to
a 12-nautical milet:rritorial sea, while an island is also entitled to an exclusive
economie zone andCintinentalshelf of its own. 114
five additional points about the islands and rocks must be addressed. Plate
43 identifies the location ofvarious offshore features.
6.26. First, the islands and rocks that lie northf 15° N. latitude are more
proximate to the mainland coast of Honduras at Cabo Gracias a Dias than
to the coast of Nicaragua. Likewise, the islands and rocks that lie south of
15° N. latitude are more proximate to the mainland of Nicaragua at Cabo
Gracias a Dias than to the coast of Honduras. While proximity normally is
not regarded as a basis of title to territory, it remains for Nicaragua to prove
its sovereignty over islands and rocks that are more proximate to Honduras.
6.27. Second, at a minimum, geographical features that dry at high-tide
are entitled to generate a 12-nautical-mile territorial sea of their own as a
matter of law. Nicaragua tries to confuse this point with a discussion of the
geographical term "islet," which is not a legal term in the law of the sea
sense. 16Therefore, without addressing the question of whether a particular
feature that is above water at high-tide can or cannat sustain human
habitation or have an economie life of its own, in which case it may
generate an exclusive economie zone and continental shelf, the
geographical features offshore the land boundary terminus that are entitled
to generate at least a 12-nautical-mile territorial sea include: on the
Honduran side of 15° N. latitude, Savanna Cay, Babel Cay, Port Royal
Cay, and South Cay among others; on the Nicaraguan side of 15° N.
latitude, south to 14°45' N. latitude there appear to be none, although
Edinburgh Cay and Edinburgh Reef, which lie within the band between 15°
N. latitude and 14°45' N. latitude, may qualify and, absent evidence to the
contrary, are presumed to do so. So far as is known to Honduras the feature
named Cock Rocks does not dry at high tide and thus does not qualify even
as a legal rock from which the territorial sea may be measured. This is
confirmed by British Admiralty chart 2425 which indicates that Cock
Rocks "covers." While British Admiralty chart 2425 treats Honduras' Hall
Rock as a legal rock, it is Honduras' view that this feature also does not
qualify to be used as a base point for measuring the breadth of the territorial
sea.
6.28. Third, and furthermore, the Honduran Counter Memorial bas
pointed out that Savanna Cay, Babel Cay, Port Royal Cay and South Cay,
are islands in a legal sense because they sustain or have sustained human
17
habitation. Therefore, each is properly an island within the meaning of
Article 121 ofthe 1982 United Nations Convention on the Law of the Sea.
Nicaragua does not contest the Honduran point that these islands sustain or
have sustained human habitation. Instead, Nicaragua holds forth that these
16
NR, p 30-32, paras 3.13-3.19.
17 HCM, p 14, para 2.3. Plate 43: Cape Gracias a Dios and the Offshore Area. Location Map
·••. ;1•\\ ,\:Il'\\ ,•'\\ llo\\
Ca r ih /1 e a n
Cayos Cajones
Cayos Sea
•JI•' Caratasca
)h ''"'
Cayos Becerro
Cayo Corda
.Cayos Vivorillo
Farra/1
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·Cayos Pinchones
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/Lr1/1(J r/1·/
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CAPE GRACIAS A DIOS
AND THE OFFSHORE AREA
lOCATION MAP
·14 31)'-----·---------- Mercator Projection
. Morrison Datum: WGS-84
·,oDennis Scale: 1:1,453,000
Cays
(accuratelS'NJ
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10 20 JO
Cayos
Miskitos Nautical Miles
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0
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::.···•\\ :•.\\ •, '" \1 115
islands should be de::;cribedas islets since they are smal1 (a point of
perhaps geographical but not legal importance), that they are unsuitable for
19
habitation because thc a~e in the path of hurricanes (true, but so is the
entire region), and in keeping with Nicaragua's false premise that the
Parties agree that the islands are not relevant to the delimitation, that in ali
events the legal character of the islands does not need to be established.20
Although Nicaragua promises to discuss the matter further in Chapter VI of
its Reply which seeks to rebut Honduras' evidence of title to these islands,
ali of which is responded to Chapters 4 and 5 of this Rejoinder, Nicaragua
does not again contest that these four named features are properly islands in
the law of the sea seru.e.
6.29. This is in con1rastto the features on the Nicaraguan side of 15° N.
latitude. British Admiralty chart 2425, which was introduced by Nicaragua,
is evidence that Cock Rocks is not entitled to be used as a base point from
which the territorial sea is measured. Edinburgh Cay and Edinburgh Reef
may be more than submerged features, but they do not appear to be islands
in the law of the sea sense. Nicaragua does not argue to the contrary.
6.30. Fourth, the juridical status of the islands and rocks being as
established in the Honduran pleadings, 12-nautical-mile arcs drawn from
the low-water line of the high-water features on the Honduran side will be
truncated by the single maritime boundary Honduras proposes for much of
its length. Also, then: is an area where 12-nautical-mile arcs drawn from
Edinburgh Cay and Edinburgh Reef also reach the traditional boundary
thus creating a delimitation between territorial seas. East of this area,
however, the single maritime boundary will in fact be a delimitation
between the territoriaLsea of Honduras on the one hand, and the exclusive
economie zone of Nicaragua on the other hand. Thus, as shown on Plate 44
moving from west to east along 14°59.8' N. latitude, the single maritime
boundary will first h~ a territorial sea boundary out to 12-nautical miles
from the mainland. Next, for a short distance of about 3.6 nautical miles the
boundary will not be within 12-nautical miles of any coast and thus it will
constitute an exclusive economie zone boundary. Next, the area of
Honduran and Nicaraguan territorial seas that abut the traditionalline will
be encountered. This: area extends east to about 82°31' W. longitude.
Thereafter, the single maritime boundary will divide the territorial sea of
Honduras from the exclusive economie zone of Nicaragua, before it again
18 NR, p 30-31, paras 3.1.3-3.15.
19
NR, p 32, para 3.17.
20 NR, p 32, para 3.18.
21
Nicaragua appears quite disinterested in the subject.a does not consider that
it is necessary to establish if there are any islands in the area of relevance for the
delimitation that fall under the definition of rocks...." NR, p 32, para 3.18. 116
divides the exclusive economie zones of Honduras and Nicaragua until the
jurisdiction of a third State is reached.
6.31. Fifth, to conclude this discussion about the islands relevant in this
case, it should be mentioned that neither Party has claimed a straight
baseline system in the relevant vicinity so as to claim the waters landward
of such islands and rocks in question as internai waters. In the Caribbean
Sea, the Honduran straight baseline system 22 runs from west to east
terminating at Cabo Gracias a Dios. The Honduran baseline system is
established from the low-water line along the coast of Honduran islands
and rocks in this vicinity. 23 Honduras does not use the Honduran islands
and rocks between 15°15' N. latitude and 15° N. latitude in the straight
baseline system because the essential criteria of Article 7 of the 1982 Law
of the Sea Convention could not be met. As for Nicaragua, it has not
claimed a straight baseline system, and it is clear that there is no
Nicaraguan feature off the relevant coast between 14°45' N. latitude and
15° N. latitude that would meet Article 7 criteria for inclusion in a straight
baseline system.
D. THE NON-RELEVANCE OF SHALLOW
GEOMORPHOLOGICAL SEA-FLOOR FEATURES
6.32. In its Memorial, Nicaragua asserted that the area in dispute included
the Nicaraguan Rise 24 and that it should be divided equally between the
25
Parties. Thus, even at this time in the consolidation of the law and
practice of maritime delimitation at the beginning of the twenty-first
century, Nicaragua requests the Court to reinstate the relevance of
geological and geomorphological factors to maritime boundary delimitation
which the Court completely set aside in the Libya-Malta case insofar as the
26
area within 200-nautical miles of the coast is concemed, and to revisit the
failed argument of the "just and equitable share," which the Court
27
dismissed in the North Sea Continental Shelfcases.
22
The Law on Maritime Areas of Honduras of30 October 1999, HCM, vo12, annex 65, p
167-173.
23
Article 4 of the Executive Decree of 21 March 2000 states: "As to the islands under
Honduran sovereignty situated in the Caribbean Sea ... the corresponding national
maritime areas shall have as their baseline the low-water line along the coast
24 NM, p 161, para 2.
25
NM, p 163, para 20.
26
ICJ Reports 1985, p 13, paras 35-41.
27 "Delimitation is a process which involves establishing the boundaries of an area
already, in principle, appertaining to the coastal state and not the determination de nova
of such an area. Delimitation in an equitable manner is one thing, but not the same thing
as awarding a just and equitable share ICJ Reports 1969, p 3, para 18. Plate 44: Territorial Sea and 200 Nautical
Mile Zone Limits along the
Honduras/Nicaragua Traditional Boundary
Cabo
NI(
.l.j [\{'·, '.\ '<1\\ ::~:,'\\
Banco del
Cabo Falso
l",11'\,
\
Arrecifes dt:
Media Lur:
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Cabo
1-londura ...'
Territorial
Cayo de la
Media Luna Burn Cay
!Reef) (Cayo Sombrilla,
Port Royal (
BobeiCay
Hall Rock'
NICARAGUA
mi!t•'!tfrom ,.
,Jn\.c.na"'t Cock Rocks ·'
,f,.
Edinburgh Cay
Edinburgh
Reef
tdinluu. 1c1~h
•\:i( .lr ar; 11.1''
{erritorial
Northwest Reefs
1 \\ • ~ 0','. .'tIl!'\·\
TERRITORIAL SEA AND 200 NAUTICAL MILE ZONE
ALONG THE HONDURAS 1 NICARAGUA
TRADITIONAL BOUNDARY
~~~C ~V ~~tct:n
Scale: 1:414,500
(accurateoilt l5°N)
10 15
Honduras'
N~utiuiMiles
200 N,wtical Mile 10 15 20 25
Zone Kilometers
o,~.dalmtraiooboundand~!picIlo"llustrpurpoonly aar~ot nK.-ssanly authontat1ve.
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Mappreparee/by: InternationalMappingAssociates.
1"';1>'
Savanna
Reefs Arrecife
Alagardo
. Savanna Cay
Porpoise Cay
(Cayo Port Royal)
(Cayo Tortuga)
South Cay
South Cay
(Reet)
Nicaragua's
200 Nautical A·file
Zone
Caribbean
Se a
.._ •\\
Plate 44 117
6.33. The Counter Memorial of Honduras succinctly pointed out that the
28
"Rise" is of dubious geomorphological authenticity, and that Nicaragu29s
reliance on geology and geomorphology is unfounded as a matter of law.
Yet Nicaragua returm:to this argument in its Reply saying, "Nicaragua and
Honduras agree on the geophysical description of the Nicaraguan Rise.
30
However, they diff over~ he relevance of this feature...". While
Honduras and Nicaragua surely differ over the matter of legal relevance,
Nicaragua is invited to show the Court where Honduras agreed on a
geophysical description of this feature.
6.34. The Nicaraguan Reply softens the Nicaraguan argument to say that
"Nicaragua is simply painting out the relevance of geomorphology in a
situation in which there is an absence of a natural dividing line."The
argument still cannat stand. Theurt said:
"The Court however considers that since the development of the
law enables a State to claim that the continental shelf as pertaining
to it extends up to as far as 200 miles from its coast, whatever the
geological characteristics of the corresponding sea-bed and
subsoil, there is no reason to ascribe any role to geological or
geomorphological factors within that distance either in verifying
the legal title of States concemed or in proceeding to a
32
delimitation ab<~tw theiecaims."
Nicaragua asks the Court to stand its jurisprudence on its head. Honduras
has full confidence that the Court will not do so. It is the geography of the
mainland coasts and islands and rocks of the Parties, together with the
conduct of the Parties, that are relevant to the delimitation, not the geology
and geomorphology of the seabed and subsoil.
28
HCM, p 24, para 2.22.
29 HCM, p 24, para 2.23; p 68-69, paras 4.33-35; p 134, para 7.4.
30
NR, p 30, para 3.11.
31 NR, p 184, para 9.23.
32
ICJ Reports 1985, p 13, para 39. 119
CHAPTER 7:
OBSERVATIONS ON THE NICARAGUAN LINE
7.01. This chapter sets forth Honduras' specifie observations on the line
proposed by Nicaragua in this case. Of course, the primary observation is
that the Nicaraguan line does not conform to the traditional line which
served as the maritime boundary between the Parties until Nicaragua
changed its position. With that point stated, this Chapter begins by
addressing thetechnkal characteristics of the Nicaraguan line, and then the
following additional observations will be made:
The Nicaraguan line runs on the wrong side of the Honduran
islandssi1:uatedbetween 15°N.latitude and 15°15'N. latitude;
The Nica:raguanline gives no weight to Honduran islands north
of 15°15'N. latitude; and
The bisec:torof coastal fronts presented by Nicaragua is based
on a flawed assessment of coastal fronts and delimitation
methods.
A. THE TECHNICAL CHARACTERISTICS
OF THE NICARAGUAN LINE
7.02. Before further discussion of the Nicaraguan line, it is important to
discem its genesis. The Nicaraguan line arises out of the discussion in
Chapter VIII of Nicamgua's Memorial. While the line itself is shown on
maps in the Memorial, one has to dig through the box of Nicaraguan maps
in Volume III of the Memorial to find Map A to see how the Nicaraguan
line is, in fact, cons1ructed. When one finds it, one understands that the
Nicaraguan line is the bisector of two coastal front lines. Those coastal
front lines mark the whole of the coasts of the Parties: on the Nicaraguan
side, from Cabo Gradas a Dios in a straight line to the border with Costa
Rica; and on the Honduran side, in a straight line from Cabo Gracias a Dios
to the land boundary terminus with Guatemala. Nicaragua's objective is
clear. Nicaragua seeks a maritime boundary that would extend from Cabo
Gracias a Dios in a north-easterly direction through what is called the
"Main Cape Channel," presumably leaving everything to the south of that 120
line to Nicaragua. Plate 45 depicts the Nicaraguan line on British Admiralty
chart 2425.
7.03. To produce the Nicaraguan line, Nicaragua creates two extreme
coastal front lines that extend far beyond the relevant area. When one
examines the Nicaraguan coastal front line, however, one must admit that
the eastward facing coast of Nicaragua is relative linear and that it runs
slightly west of south ali the way to Costa Rica from Cabo Gracias a Dios.
This can be seen by an examination of the actual Nicaraguan coastline on
Plate 45. Thus, the Nicaraguan coast overall faces east. Nicaragua's own
method admits that fact. Indeed, the Nicaraguan coast faces slightly south
of east. One may ask: if the Nicaraguan coast faces east, why is it that the
traditional boundary that runs due east from the land boundary terminus is
not a correct and equitable maritime boundary? How is it that Nicaragua is
entitled to a maritime boundary that runs northeast when no coast of
Nicaragua faces that direction?
7.04. Of course, the technical reason the Nicaraguan line is possible is
due to the obviously distorted coastal front line that Nicaragua chooses for
Honduras. Exactly 20 percent (22,394 square kilometres) of Honduran
territory lies north of the line that Nicaragua represents as the Honduran
coastal front. This distorted and self-serving depiction of the Honduran
coast is designed to make it appear that there is a major change in the
direction of the coast of Central America at Cabo Gracias a Dios which
there is not.
7.05. Thus, the Nicaraguan line is a conjurer'strick. No mainland coast of
Nicaragua supports the Nicaraguan line. A distorted rendition of the coast
of Honduras is its only technical basis. Nicaragua brings a maritime
boundary case to the Court that it portrays as justified by the coastal
relationships it presents and further asserts that the islands between 15° N.
latitude and 15°15' N. latitude are irrelevant to the maritime boundary
issue. Yet the only way the Nicaraguan line could ever be justified is not on
a basisof an analysis of coastal fronts but if Nicaragua were sovereign over
those islands which it is not.
B. THE NICARAGUAN LINE RUNS ON THE WRONG SIDE OF
THE HONDURAN ISLANDS SITUATED BETWEEN 15° N.
LATITUDE AND 15°15' N. LATITUDE
7.06. The Nicaraguan line claims the islands between 15° N. latitude and
15°15' N. latitude. These islands have always belonged to Honduras, and
Honduran sovereignty over them is unquestionable in spite of Nicaragua's
recent pretensions. In its Application, Nicaragua requested the Court to
determine the maritime boundary between the Parties. It did not request a Plate 45: Nicaraguan Line on British. Admiralty Chart 2425
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determination of terntorial sovereignty, notwithstanding that it knew the
longstanding Honduran position and of its own recent claim.
7.07. Thus, without saying so, Nicaragua seeks a line to reattribute
sovereignty over the islands as well as one to serve as a maritime boundary.
As a matter of proc,~d u rceragua's approach to the case is open to
doubt. How Nicaragua explains itself to the Court is Nicaragua's problem,
and, indeed, obligation. For Honduras the case proceeds without Honduran
sovereignty over the islands between 15°N. latitude and 15° 15'N. latitude
being subject to doubt.
7.08. Accordingly, Honduras is justified in rejecting the Nicaraguan line
simply because it plac:esHonduran islands on the wrong side of the line. In
certain circumstances the island of one party may find itself on the wrong
side of a maritime b01mdarywhen it is enclaved. But that is not Nicaragua's
argument. Honduras needs to say no more than that the Nicaraguan line is
without foundation since it places Honduran islands on the wrong side of
that line.
C. THE NICARAGUAN LINE GIVES NO WEIGHT TO
HONDURAN ISLANDS NORTH OF 15°15' N. LATITUDE
7.09. While Nicaragua has made clear in its pleadings that it now claims
the islands and rocks between 15° N. latitude and 15°15'N. latitude, and
that in its view those islands and rocks should be disregarded for maritime
delimitation purposes, it also disregards the numerous Honduran islands
and rocks north of 15°15' latitude that Nicaragua does not claim and that
normally would have sorne weight in a maritime boundary delimitation in
their vicinity. These islands and rocks stretch north from Cape Falso to
beyond 16° N. latitude and indeed east to Cayo Gorda, which is situated
well to the east of tht: longitude of Cabo Gracias a Dios to about the same
longitude as South Ca.y.
7.10. While Nicaragua leaves no doubt asto its ambitions, it nonetheless
veils its methods. Lest there be any doubt about these methods, Nicaragua's
approach is to bring a maritime boundary case which turns out instead to be
a claim of a line of attribution transferring sovereignty over all islands and
rocks between 15° N. latitude and 15°15'N. latitude. ltbases its line on an
unsupportable coastal-front analysis that is also dependent upon the
proposition that the islands and rocks between 15°N.latitude and 15°15'N.
In its Reply, Nicaragua criticizes Honduras for the "territorial" and "sovereignty
related"haracter of its position. (NR, p 20, paras 2.20-2.26). It is hard to see what is
wrong with a maritime boundary position that ensures that the islandss are
separatedy the boUDdaryline. 122
latitude are unimportant to the delimitation. The line Nicaragua therefore
creates disregards those islands and rocks to be sure, but that line also
disregards all the other Honduran islands and rocks north of 15°15' N.
latitude. The result is a line that is far more favourable to Nicaragua than an
equidistance tine would be even if Nicaragua were entitled to the islands
and rocks between 15° N. latitude and 15°15' N. latitude which it is not.
The Nicaraguan position is extreme, expansionistic and perverse.
D. THE BISECTOR OF COASTAL FRONTS PRESENTED BY
NICARAGUA IS BASED UPON A FLAWED ASSESSMENT OF
COAST AL FRONTS AND DELIMITA TION METHODS
7.11. Chapter 6 above addresses the fact that the land boundary between
Honduras and Nicaragua meets the Central American coast where that
coast faces east. As discussed in Chapter 6, Nicaragua's Puerto Cabezas,
which is at approximately 14° N. latitude, and Honduras' Cape Falso, at
approximately 15°15' N. latitude, are on virtually the same longitude. This
is so in spite of the eastern bulge in the Nicaraguan coast at Punta Gordo,
and the shared eastern protrusion in the eastward facing Central American
coast at Cabo Gracias a Dios. Both of these coastal sinuosities at Punta
Gordo and Cabo Gracias a Dios, reach eastward to about the same distance
in longitude. Thus, between Puerto Cabezas in Nicaragua and Cape Falso in
Honduras the coast of Central America runs essentially from south to north
in spite of the coastal sinuosities. Since these two places, which are sorne
75 minutes apart in latitude (or 75-nautical miles), are on the same
longitude, the general directionof the coast of Central America which runs
between them, and in the midst of which lies the land boundary terminus,
can hardly be said to have changed.
7.12. Thus, Nicaragua's portrayal of a right-angle coastal relationship
between itself and Honduras at the land boundary terminus at Cabo Gracias
a Dios is plainly and simply wrong. If Puerto Cabezas in Nicaragua and
Cape Falso in Honduras lie on the same longitude, the general direction of
the coast between those Nicaraguan and Honduran points is south to north.
Thus, the coast of Central America between those points faces east. And, if
the coast of Central America faces east at the land boundary terminus at
Cabo Gracias a Dios, it is hard to see what is inequitable about the
traditionalline that runs due east from this eastward facing coast.
7.13. Because there is no angular directional change of the coast of
Central America of any significance at the land boundary terminus, it is
inappropriate to use a bisectorof coastal fronts as the delimitation method
in this case. Nicaragua attempts to justify the bisector of coastal fronts
method by reference to judicial authority and State practice. The principal
judicial authority cited is thelf of Maine case where the Chamber used a 123
2
bisector of coastal fronts in the first segment of its boundary. Of course,
there the Chamber did so where the Canadian and United States coasts
faced inward on the area to be delimited, and where the Chamber also
determined not to use the equidist3nce method. The eight State practice
agreements cited by Nicaragua in this regard are hardly convincing
support for Nicaragu:t'spropositions. A review of Nicaragua's discussion
discloses that most of them, in fact, are boundaries that are perpendicular to
the general directionof the coast.
7.14. Honduras does not deny that in certain situations judicial authority
and State practice have adopted a geometrical method of delimitation such
as angle bisectors and perpendiculars to the general direction of the coast. It
is important to appredate on the one hand that both methods are dependent
upon an accurate rendering of the neighbouring coastal relationships, and
on the other hand that there is a difference between the two methods. A
bisector may be of us· in~a situation, such as thGulf of Maine case, where
there is a major change in direction of the neighbouring coasts at the land
boundary terminus. A perpendicular may be of use where the coast on
either side of the land boundary terminus follows the same direction such
as it does in this case.
7.15. Of course, if Nicaragua insists, and wishes to impose the bisector
method on the local change in coastal direction at Cabo Gracias a Dios,
using only the Honduran and Nicaraguan coasts that face the area to be
delimited in this case, the result is instructive. For this purpose Platein
Chapter 6 may be recalled. As is clearly shown by reference to that Figure,
the bisector of the angle created by the Honduras'coastal front from Cape
Falso to Cabo Gracias a Dios and Nicaragua's coastalfront from Laguna
Wano (de Bismuna) to Cabo Gracias a Dios will closely approximate a
parallelof latitude.
7.16. This is not surpnsmg. Since Nicaragua's Laguna Wano (de
Bismuna) and Honduras' Cape Falso are roughly the same distance from
Cabo Gracias a Dios, and since they lie on approximately the same
longitude, the exercise set forth in paragraph 7.15 above is the same as
establishing the line that runs through Cabo Gracias a Dios that is
perpendicular to the general direction of the coast connecting Cape Falso
with Laguna Wano (de Bismuna), or for that matter between Cape Falso
and Puerto Cabezas, or even between Cape Falso and Nicaragua'sborder
with Costa Rica. Thus, the bisector of the angle of the Honduran and
Nicaraguan coasts in the vicinity of Cabo Gracias a Dios, is basically the
same as the perpendicular to the general direction of the eastward facing
2
NM, p 100, para 35.
3 NM, p Ill, paras 50-50. 124
coast of Central America: in other words, a parallel of latitude extending
from Cabo Gracias a Dios.
7.17. The foregoing assessment demonstrates that the construction of
Nicaragua's line is arbitrary and without foundation. lt "cuts off' the
projection of the eastward facing coastal front of Honduras that is south of
Cape Falso, as is clearly shown in Plate 45. It is an after thought designed
to achieve a desired result.It has no basis in law, international practice, the
relevant coastal geography, or the practice of the Parties in this case. lt is an
illusion that is intended to convince that Nicaragua is a State on the
Caribbean Sea with a coast that faces northward. But Nicaragua has no
coast that faces northward. Nicaragua lost the King of Spain case 100 years
ago when it argued that it did so. That Award rejected the Nicaragua
argument that it had a Caribbean coast that faced north and northeast and
established clearly that the Honduras-Nicaragua land boundary enters the
sea along the eastward facing coast of Central America at Cabo Gracias a
Dios. Nicaragua's Caribbean coast thus faces east; it has no basis for a
maritime boundary line that runs in a north-easterly direction. 125
CHAPTER8:
THE HONDURAN LINE
8.01. This chapter sets forth the Honduran line and tests its equitable
character. Chapters 2and 3 of this Rejoinder set forth the legal basis for the
Honduran line. Chapters 4 and 5 reconfirms the relevant facts concerning
the traditional usef this line by both Parties and emphasizes the relevant
facts concerning the Honduran title to the islands and rocks north of 15°N.
latitude. Chapter 6 assesses the geographie factors in this case.remains
for this Chapter 8 to address the following:
the question of how the boundary should account for the
accretion and erosion at the mouth of the River Coco once
the boundruy leaves the point identified by the
Honduras/Nic:aragua Mixed Commission at 14°59.8' N.
latitude, 83°08.9' W. longitude;
the technical characteristicsf the boundary that Honduras
proposes;
considerationof a relevant case precedent;
the testof the equitableness of the Honduran line against the
equidistance line; and
the question whether the Honduran line "cuts off'' the
projectionof the coastal front ofNicaragua.
A. THE QUESTION OF HOW THE BOUNDARY SHOULD
ACCOUNT FOR THE ACCRETION AND EROSION AT THE
MOUTH OF THE RIVER COCO
8.02. Plate 46 appeared as Plate 19 in the Honduran Counter Memorial. lt
is a series of photos of the mouth of the River Coco every four years from
1979 to 2001. It is obvious that the nature of the river mouth shifts
considerably, even from year to year. Sometimes the opening into the sea is
more northerly, sometimes it opens almost due east, and in other years the 126
1
mouth faces more to the south. The orientation of the mouth of the River
Coco, combined with the general eastward accretion of Cabo Gracias a
Dios, makes it necessary to adopt a technique so that the maritime
boundary need not change as the mouth of the river changes.
8.03. Such a technique is available in the practice of States in such
situations. For instance, the Mexico-United States maritime boundary in the
Gulf of Mexico begins at the mouth of the River Grande which is also
subject to considerable hydrological change. The Parties in that situation
identified a fixed point a short distance seaward of the mouth of the river
that will remain constant no matter how the mouth of the river may change.
Thus, the Mexico-United States maritime boundary leaves the mouth of the
River Grande, wherever it may be, and connects directly to the seaward
fixed point. From there the maritime boundary proceeds further seaward
following the equidistance methodology employed in that case. 3
8.04. There is no reason that this technique cannot be employed in this
case. Indeed, Nicaragua has itself accepted this approach in suggesting
"that the line of delimitation should start on a fixed point located three
nautical miles from the mouth of the River Coco." 4 Nicaragua has
suggested the geographie coordinates of such a fixed point, but they are
not acceptable because they are not based in law, nor in the practice of the
Parties, and the seaward fixed point suggested is itselfbased on the shifting
location of the river mouth.
8.05. Accordingly, Honduras believes that such seaward fixed point itself
should be measured from another point, which is established in this case,
the point identified by the Honduras/Nicaragua Mixed Commission in 1962
at 14°59.8' N. latitude, 83°08.9' W. longitude. Thus, in the view of
Honduras, the seaward fixed point should be established precisely three
nautical miles due east of 14°59.8' N. latitude, 83°08.9' W. longitude. The
Nicaragua argues that the Nicaraguan bank of the River Coco always extends further
seaward than the Honduran side of the river at the tip of the cape. Honduras disagrees.
As can be seen on Plate 46, the characteristics of the mouth of the river are always
shifting.
2 See International Maritime BoundarieCharney & Alexander, vol 1,Report 1-5.
At Chapter VIII, paragraph 55 of its Memorial Nicaragua refers to the Mexico-United
States maritime boundary as a perpendicular to the general directione coast and
even goes so far as to depict the boundary on Map XIII of the Memorial. This reference
is not correct. The Mexico-United States maritime boundary is a simplified
equidistance line in sorne areas and a strict equidistance line in other areas which uses
even the smallest island features as basepoints in constructing the equidistance line.
See, International Maritime Boundaries, Charney& Alexander, vol 1, Report 1-5;
Chamey & Smith, vol IV, Report 1-5.
4 NM, p 4, para 1O.
5
NM, p 83, para 23. Plate 46: Satellite Analysis of Coastai
Changes at Cape Gracias a Dios (1979-2001)
[Reproduction of Plate 19 from the
Cl Honduras Counter- Memorial]
lma~
1979
1985
2(
Scat•
Proje
Dat11 SATELLIT AENALYSIO Sf COAST AL
CHANGES ATCAPEGRACIAS A DIOS
(1979. 2001)
Imagesacquiredfrom:
1979 - 1981 ........l&3, Multi-SpectralScanner (MSS)
1985 - 1997 .......&5, Thematic Mapper (TM)
2001 ............... landsat 7, Thematic Mapper (TM)
Scale:1:138,000
ProjectionUniversal Transverse Mercator (UTM)
Datum: WGS-84
Preparedy:International Mapping AssociatesPlate 46 127
geographie coordinate:softhat point are: 14°59.8' N. latitude, 83°05.8' W.
longitude.
8.06. This seaward ftxed point is sufficiently far removed from the coast
so that it will not be: affected by the accretion of Cabo Gracias a Dios
eastward, nor the changes in the characteristics of the mouth of the River
Coco. Honduras agre ~ ts the general suggestion of Nicaragua that from
the point established in 1962 up to the seaward fixed point offshore the
Parties should negotiate an agreement t6at would take into consideration
the constant changes in the river mouth.
B. THE TECHNICAL CHARACTERISTICS OF THE BOUNDARY
TlfiAT HONDURAS PROPOSES
8.07. From the seaward fixed point suggested in paragraph 7.5 above, the
Honduran line follows 14°59.8' N. latitude eastward until the jurisdiction
of a third State is reached. As the Honduran line follows 14°59.8' N.
latitude eastward, it traverses first the territorial sea out to a distance of 12-
nautical miles from the mainland at Cabo Gracias a Dios, then for a short
distance the waters are beyond 12-nautical miles from the coast and thus
the delimitationis of the exclusive economie zone, then further to the east
is an area of territorial sea delimitation where Honduran and Nicaraguan
islands/rocks lie within 12-nautical miles of the traditional boundary.
Further east the 12-nautical-mileterritorial sea of Honduras is eut short by
the single maritime boundary creating an area where the delimitation is
within 12-nauticalmiles ofHonduran island territory but not ofNicaraguan
7
territory, and thereafter the Honduran line again delimits exclusive
economie zone on both sides.
8.08. Plate 47 depicts the Honduran line as it is now proposed, taking into
account the adaptation for the changing character of the mouth of the River
Coco set forth in Section 1above, and the juridical character of the waters
8
delimited by the single maritime boundary.
6 NM, p 83, para 24.
7
This situation is not unusual where a boundary does not follow precisely the
equidistance line. instance, in the Yemen-Eritrea case the tribunal's judgment eut
short the 12 nautical-!nile territorial sea to the west ofYemen's Jabal Zuqar creating a
boundary lineetwem Yemeni territorial sea and Eritrean exclusive economie zone.
Delimitation Award, para 162.
8
In its Counter Memorial Honduras suggested a single maritime boundary in three
sections extendingom the point established in 1962 by the Mixed Commission.
Bearing in mind thedvisa bilnetotiated arrangement between the Parties in an
initial area between the 1962 Mixed Commission point and a seaward fixed point, and
the changing juridical character waters as the single maritime boundary maves 128
8.09. It may be noted that this is not the only place where a maritime
boundary between two States altemates between a territorial sea boundary
and an exclusive economie zone boundary. Indeed, this situation is quite
9
common. Examples include the Eritrea-Ye10n delimitation, the Russia
United States maritime boundary, and the Venezuela-Trinidad and
Tobago maritime boundary. 11
C. CONSIDERATION OF RELEVANT CASE PRECEDENT
8.1O. lt goes too far for either Party to argue that there are delimitation
agreements in the practice of States that deal with geographie
circumstances identical to those present here, or that the Court or arbitral
tribunats have done so. However, there is one case that Honduras believes
is particularly instructive and should be recalled because of c12tain
characteristics it shares with this case. That is theunisia-Libya case.
8.11. In Tunisia-Libya, the Court faced a geographical situation in which
the land boundary met the coast at Ras Adjir. Ras Adjir is a cape on the
coast of the southem Mediterranean Sea. The coasts of Tunisia and Libya
on either side of Ras Adjir face northeast into the Mediterranean Sea.
Further west along the Tunisian coast, after the island of Jerba, the North
African coastline makes a major directional change to the north. Besides
this geographical setting, the Court also faced a set of facts the essence of
which being that for many years the Parties in that case, and the colonial
powers before them, had followed a traditional line of delimitation
approximating a perpendicular to the general direction of the coast, at least
in so far as the area nearer to shore was concemed. This included
substantial oil concession practice which abutted along the traditionalline.
8.12. As for the geographical situation, the Court was not convinced by
the perspective that Tunisia tried to present of a Tunisian coast that faced
east and a Libyan coast that faced north resulting in a bisector boundary
extending at approximately 45° from Ras Adjir. While Tunisia made
geomorphological, geological and historical arguments consistent with this
theme, it held forth in its submission that the delimitation could "be
constituted by a line drawn at the Tuniso-Libyan Frontier parallel to the
bisector of the angle formed by the Tuniso-Libyan littoral in the Gulf of
seaward along a parallel of latitude, Honduras no longer sees need for the three section
approach suggested in the Counter-Memorial.
9 International Maritime Boundaries. vol IV, Charney & Smith, eds., Report 6-14.
10
International Maritime Boundaries. vol 1,Charney & Alexander, eds., Report 1-6.
Il
International Maritime Boundaries. vol 1,Charney & Alexander, eds., Report 2-13.
12 ICJ Reports 1982, p 18. 129
13
Gabes." Thus, like Nicaragua in this case, Tunisia built its argument on a
major change in the direction of the coast of North Africa, but one that
takes place actually a considerable distance from where the Tunisia-Libya
land boundary meets the sea.
8.13. The Court re}~c t enisia's argument. In determining the course
of the Tunisia-Libya maritime boundary in its initial extension from land,
the Court noted thep~rpendic tutheareneral direction of the coast and
that it also corresponded to the practice the Parties. In considering this
perpendicular, the Court examined a relatively short shared coastof the
Parties. The Court said:
"in assessing the direction of the coastline it is legitimate to
disregard for the present coastal configurations found at more than
a comparatively ~:ho distance f14m [the land boundary terminus],
for example the iBlandof Jerba."
8.14. The Court's line in Tunisia-Libya therefore adopted the
perpendicular to the general direction the coast in the vicinity of the land
boundary terminus, a line that was also based in the practicethe Parties.
The Court followed that line until there was reason to deviate from that
perpendicular. In Tunisia-Libya, there were two reasons to do so. First,
while the corresponding practice of the Parties was evident in the area
nearer to the coast, including the oil concession practice, this was not so
clear north of 34° N. latitude. Second, because of the major change in
direction in the North African coast in theulf of Gabes (not at the land
boundary terminus at Ras Adjir) the Tunisian coast turned inward to again
face the maritime ar~ to be delimited. Thus, the Court abandoned the
perpendicular where there was no corresponding practiceof the Parties for
the boundary to follow, and where the eastward facing Tunisian coast, after
the major change in coastal direction at the Gulf of Gabes, faced the area to
be delimited. For these reasons the Court adjusted the perpendicular line to
the east away fromth1!Tunisian eastward facing coast.
8.15. In the Honduras-Nicaragua case, the land boundary meets the sea at
the eastern tipof a cape that protrudes from the midst of the eastward
facing coast of Central America. A perpendicular projected from this
eastward facing coa:;tal front approximates a parallel of latitude. The
eastward facing coastal frontof Central America does not make a major
change in direction until it begins to do so at Cape Falso. When it does so,
the coast of Central America turns away from the area to be delimited.
Thus, from a geographical perspective and analysisof coastal fronts, there
is no reason why a boundary that begins as a perpendicular to the general
13
ICJ Reports 1982, 18, para 15, (emphasis added).
14 ICJ Reports 1982, 18, para 120. 130
direction of the eastward facing coast of Central America should tum.
Furthermore, in the Honduras-Nicaragua case there is also no reason to tum
the line based in the practice of the Parties or other geographical features
such as islands and rocks. The Honduran line leaves to bath sides the
islands and rocks belonging to each and it reflects the practice of the Parties
eastward to 82° W. longitude undertaken for many years until Nicaragua at
a late date changed its position.
D. THE TEST OF THE EQUITABLE NESS OF THE HONDURAN
LINE AGAINST THE EQUIDISTANCE LINE
8.16. The Court's recent jurisprudence indicates it will often adopt a
provisional equidistance line in its assessment of a maritime boundary
situation and then consider whether that line must be adjusted in the light of
15
the existence of special circumstances. In this case Honduras has sought
to demonstrate that there is a traditional line which govems. Honduras has
no difficulty in subjecting its line to a comparison with the equidistance
line to demonstrate the equitable character of the traditional boundary line
proposed by Honduras in this case.
8.17. Plate 48 shows the Honduran line together with the equidistance
16
line. Due to the unstable character of the mouth of the River Coco, the
initial segment is a simplified equidistance line that runs from the point
established by the 1962 Mixed Commission to the tripoint with Honduras'
Babel Cay and Nicaragua's Edinburgh Cay. Thereafter the equidistance
line is constructed using standard methods.
8.18. As can be seen, the equidistance line will leave the mainland and
trend in an east-southeast direction south of 14° 59.8' N. latitude to a point
that is approximately 14.8 nautical miles off the mainland coast. At this
point, Nicaragua's rocks begin to tum the equidistance line back to the
north and east. However, it never goes north of 14° 59.8' N. latitude.
Further east, the eastward position of Honduras' South Cay takes over and
pushes the equidistance line further south-eastward. One would expect that
if Honduras were to advance the strict equidistance line as its preferred
boundary method, Nicaragua would abject and say that the equidistance
15 Qatar-Bahrain, ICJ Reports 2001, para 176.
16
Nicaragua asserts that "the technical method of equidistance is not feasible." NM, p
121, para82. Honduras disagrees with the observation. The method may easily be
applied asin all other circurnstances. However, the geographical circumstances are
such to justify a different method, such the parallel of latitude that forms the
traditionalline in this case. Plate 48: The Honduran Line and the
Provisional Equidistance Line
·-1;,,,
Sao 131
line developed from Honduran islands north of 15° N. latitude cuts off the
projection ofthe eastward facing coastal front ofNicaragua. 17
8.19. Be that as it may, the equidistance line is shown to be substantially
more to Honduras' advantage than the traditionalline. Indeed, as shown on
Plate 48, Honduras would gain 1,784 km 2over the Honduran line were it to
achieve an equidistanee tine in this case.
8.20. Honduras submits that this is a convincing demonstration of the
equitable character of the Honduran line. The Honduran line can be seen as
both an adjustment and simplification of the equidistance line. By the
Honduran line, which is the traditionalline between the Parties, Nicaragua
gains more than it would achieve by strict application of the equidistance
method in this case.
E. THE QUESTION WHETHER THE HONDURAN LINE "CUTS
OFF" THE PROJECTION OF THE COASTAL FRONT OF
NICARAGUA
8.21. By its own arguments, Nicaragua admits that it has a linear coastal
front that stretches from its land boundary terminus with Honduras at Cabo
Gracias a Dios in the north to the Nicaragua-Costa Rica land boundary
terminus in the south. This coastal front, when measured as one single line,
runs slightly west of :;;outh. There is no Nicaraguan coast that faces north
or even northeast.
8.22. The Honduran line does not run in front of the Nicaraguan coast. It
runs due east; perpendicular to the general direction of the coast; and
particularly perpendicular to the general directionof the coast of Nicaragua.
If a coast on1yfaces east, the projection of that coast is not "eut off' by a
boundary that runs east. The Honduran line produces no "eut-off' effect in
this case further demonstrating its equitable character. Plate 49
demonstrates this point clearly.
8.23. Thus, the Honduran line respects the principle of non
encroachment. The Honduran line does not pass too close to the
17
In its Reply, Nicaragua asserts that ''thedispute is confined to the area north of the l5th
parallel." (NR, p 6, para 1.5) This is a self-serving overstatement. If the Court was not
convincedof the Honduran traditional line position, there is no reason why the Court
could not establish the Honduran-Nicaraguan single maritime boundary as the
equidistance line as shown in Plate 48.
18 "The direction of the Nicaraguan coasts basically follows a meridian of longitude."
NM,p 17,para39. Plate 49: The Projection ofNicaragua's Caribbean Coastline ls Not "Cut-off' by the Hondura Line
,q\'. \\ •..: 1\ '1\\
1•·'
Arrecifes de la
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HONDURAS
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....
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NICARAGUA 1
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1
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1 San AndrésIsland
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1 Little Corn /s. Cay
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1 THE PROJECTION OF NICARAGUA'S
1
1 CARIBBEAN COASTLINE
1
.,t.ll IS NOT ''CUTOFF" BY THE HON DURAN UNE
'1
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1 Scale: 1:2,354,000
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1
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1
1
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Map prep.1ri>dby: lntem.1tionàl Mapping Associates.
\\ ,·.~\ li\\ 133
CHAPTER9:
SUM:MARY AND CONCLUSIONS
9.01. Nicaragua's Application requested the Court to establish the single
maritime boundary b1:tweenHonduras and Nicaragua in the Caribbean Sea.
In Honduras' view the answer to Nicaragua's request is straightforward:
there is a traditional boundary which respected Honduras' sovereignty over
the islands and maritime areas north of the 15thparallel and which served
both countries weilfi~o their early history up to abo1980 when a new
Nicaraguan govemm~ nejected the established practice. Thus, Honduras
believes the Court should affirm the established traditional line and deny
Nicaragua a benefit for changing its position to gain further advantage.
9.02. Honduras ha:; provided the Court with (i) evidence of its uti
possidetistitle over its islands and maritime areas, (ii) evidence of its
effectivitéthat demonstrate its sovereignty over the islands north of 15° N
latitude, and its sovereignty, sovereign rights and jurisdiction over the
waters north ofthis parallel, and (iii) evidence de factboundary that
has existed in the practice of the Parties up to recent years. Nicaragua's
approach has been 1:0 criticize this evidence without offering concrete
evidence of its own in support of the title it claims to the islands and
maritime area north of 15°N latitude.
9.03. Instead, Nicaragua argues that the single maritime boundary should
be constructed without reference to which country is sovereign over the
islands north of 15° North latitude and without taking those islands into
account in the meth::>dof delimitation it proposes. Nicaragua obviously
adopts this approach because it cannot demonstrate the sovereignty it now
claims, or provide the justification for the transfer of sovereignty from
Honduras to Nicaragua over the islands. Moreover, the Nicaraguan line
proposed is one that is based on a geographical analysis that does not
withstand scrutiny. Nicaragua would have the Court believe that the
Honduran and Nicaraguan coasts lie at a right angle to one another, but that
assessment denies th~i~ portant fact that the land boundary meets the sea
on the Central American coast where that shared Honduran andNicaraguan
coast faces east. This is notjust a geographical fact of great importance, but
one that has a rich and difficult history between the two countries which 134
was finally settled in 1906 by the Award of the King of Spain and
confirmed by the Court in 1960.
9.04. Thus, it is perfectly natural that the traditional line, which was
founded in colonial times and has remained unchallenged until recent years,
creates a jurisdictional division between Honduras and Nicaragua that runs
due east from Cabo Gracias a Dios.
9.05. As a traditional line, it derives from the practice of the Parties.
However, when measured against the jurisprudence of the Court, including
in its recent decisions, Honduran title to the islands and maritime area north
of 15° N latitude, and the traditionalline, meet the relevant juridical tests as
shown in Chapter 2 of this Rejoinder. Chapters 3 to 5 supplement
presentations in the Honduran Counter Memorial which further
demonstrate the historie basis of the traditional line and provide further
evidence of Honduras' title north of 15° N latitude and the weakness of
Nicaragua's arguments (based on a total absence of evidence) in this
regard. Chapters 6 to 8 consider the relevant geographie circumstances and
demonstrate the unsupportable and inequitable character of the Nicaraguan
line which stands in contrast to the traditional line which is in accord with
the relevant geographie circumstances and produces an equitable result.
9.06. To conclude, Honduras reaffirms its basic submission that the
single maritime boundary is long established in the practice of the Parties
and that it extends east from Cabo Gracias a Dios along 14°59.8' N
latitude. To narrow the differences between the parties and to ensure no
charge can be made by Nicaragua that Honduras claims Nicaraguan
territory at the mouth of the River Coco, Honduras herein adjusts its
approach to accord with the view that the Parties should negotiate an
agreement covering the distance from the point laid down by the 1962
Mixed Commission to a fixed point seaward of the mouth of the River
Coco. East of that fixed point, the Honduran line follows 14°59.8' N
latitude as the single maritime boundary taking into consideration the
juridical character of the waters so delimited. 135
SUBMISSIONS
Having regard to tht: considerations set forth in the Honduran Counter
Memorial and this Rejoinder,
May it please the Court to adjudge and declare that:
1. From the point decided by the Honduras 1 Nicaragua Mixed
Commission in 1962 at 14° 59.8 N. latitude, 83° 08.9 W.
longitude to 14° 59.8 N. latitude, 83° 05.8 W. longitude, the
demarcation of the fluvial boundary line and the delimitation
of the maritime boundary line which divide the jurisdictions
of Honduras and Nicaragua shaH be the subject of
negotiation between the Parties to this case which shaHtake
into account the changing geographical characteristics the
mouth of the River Coco; and
2. East of 14°59.8' N. latitude, 83°05.8' W. longitude, the
single maritime boundary which divides the maritime
jurisdictions of Honduras and Nicaragua foHows14°59.8'N.
latitude until thejurisdiction of a third State is reached.
Carlos L6pez Contreras
Agent of the Republic ofHonduras
13August 2003 137
LIST OF ANNEXES
INVOLUMEII
COLONIAL AND POST-COLONIAL DOCUMENTS ......................... 1
Annex 232 Geographical Plan of the Viceroyalty ofSt" Fe
deBogotâ, New Kingdom ofGranada, 1774........................ 3
Annex 233 Extra rtm~ ;icaragua's Constitutions of
1826, 1911 and 1948..................................5..........................
DIPLOMA TIC CO:HRESPONDENCE AND DOCUMENTS ............... 7
Annex 234 Aide Memoire Conceming Meeting between
AmbasBadors of Jamaica and Honduras, 15 April
1999 (with attachments) ........................................................ 9
Annex 235 Letter from the Minister of Foreign Affairs of
Jamaica to the Minister of Foreign Affairs of
Honduras, 25 February 2002............................................... 17
Annex 236 Note from the Vice-Minister of Foreign Affairs
ofColombia of28 February 2003 ....................................... 19
Annex 237 Certification Issued by the Vice-Minister of
Foreign Affairs ofColombia of9 June 2003 ...................... 21
Annex 238 Note from the Honduran Ambassador of21 June
2003 to Jamaica Accompanying an Aide
Memoire from the Govemment of Jamaica ........................ 23
NATIONAL LEGISLATION ............................................25...................
Annex 239 Article 6 of the Honduran Constitution of 1957 ................. 27
Annex 240 Article 5 of the Honduran Constitution of 1965 ................. 29
Annex 241 Article 10 of the Honduran Constitution of 1982 ............... 31
Annex 242 Art. 1 of the 1936 Agrarian Law, Official
GazetteofHonduras No. 9,877 of20 April1936 ............... 33
Annex 243 Art. 1 cfDecree 103 of7 March 1950, amending
the Agrarian Lawof 1936, Official Gazette of
Honduras No. 14.055 of 16 March 1950 ............................ 35 138
Annex 244 Articles 1 and 3, Decree No. 25 of 1951, Official
Gazette ofHonduras No. 14.306 of22 January
1951 ........................................................................
............ 37
Annex 245 Article 3 ofthe Crimina1Code of Honduras
Approved by Decree No. 144-83 of23 August
1983, Official Gazette ofHonduras no. 24.264
of 12 March 1984................................................................ 39
WITNESS STATEMENTS ..................................................................... 41
Annex 246 Notarial Certification Issued on 21 January 2003
(Deposition by Oswaldo Lapez Arellano) .......................... 43
Annex 247 Notarial Certification Issued on 29 January 2003
(Deposition by Rafael Leonardo Callejas
Ramera) ........................................................................
...... 47
Annex 248 Notarial Certification Issued on 12 May 2003
(Deposition by Reniery Elvir Aceituno) ............................. 51
Annex 249 Notarial Certification Issued on 12 May 2003
(Deposition by Arnulfo Pineda L6pez and Luis
AndrésTorres Rosales) ....................................................... 55
Annex 250 Notarial Certification Issued on 14 May 2003
(Deposition by Ramon Valladares Soto) ............................ 59
Annex 251 Notarial Certification Issued on 9 July 2003
(Deposition by Cristobal Cano) .......................................... 63
OIL CONCESSIONS- HONDURAS .................................................... 73
Annex 252 Report from the Union Oil Company of
Honduras to the Director General of Mines and
Hydrocarbons of6 June 1969 ............................................. 75
Annex 253 Report from the Union Oil Company of
Honduras to the Director General of Mines and
Hydrocarbons of 19 March 1970 ........................................ 77
Annex 254 Report from the Union Oil Company of
Honduras to the Director General of Mines and
Hydrocarbons of26 November 1975.................................. 79
OIL CONCESSIONS- NICARAGUA .................................................. 81
Annex 255 Petroleum Exploration Activities in Nicaragua
(Booklet of June 1994)........................................................ 83 139
FISIDNG CONCESSIONS AND PERMITS ...................................... 101
Annex 256 Agreement No. 345 of21 July 1975, and
Agreement No. 287 of2 June 1975, Official
Gazette of Honduras No. 21.653 of 1August
1975 ....··················
··················
···························
······
Annex 257 Request by PYMHSA, Official Gazette of
Honduras No. 21.626 of 1July 1975 ................................ 109
Annex 258 Resolution of the Ministry ofNatural Resources
ofHonduras of7 January 1977 Concerning an
Application for Extension of a Provisional
Fishing Permit Submitted by 'Pescados y
Mariscos de Honduras, S.A. de C.V.'
(PYMiiSA) .......................................................................
111
Annex 259 Agreement No. 469 of 12 July 1976, Official
Gazette ofHonduras No. 22.763 of28 March
1979 ··················
··················
···················1········
··········
SCIENTIFIC, ECONOMIC AND MISCELLANEOUS
DOCUMENTS ........................................................................
............... 115
Annex 260 Nautical Chart (COL 008) of the Caribbean Sea,
Rosalind Bank to San AndrésIsland, Center of
Oceanographie and Hydographic Investigations,
Colombia........................................................................
... 117
Annex 261 Petroleum Legislation, New York 1970 ........................... 119
Annex 262 Summary of exploratory fishing operations of
the R/V Canopus in the Western Caribbean Sea
from D:::cember1968 to June 1970, San
Salvador, 1971 .................................................................. 141
Annex 263 Exploratory and Simulated Commercial Fishing
Operations in the Western Caribbean Sea. RIV
'Canopus', May to November 1970 (San
Salvador, 1971)................................................................. 143
Annex 264 Geophysical Service Inc., Final Report of
GEOFIX Survey Honduras conducted for Union
Oil Company, April-May 1975......................................... 145
Annex 265 Report on the Mission of Exploration of
Serranilla'sArea, 7 December 1978.................................. 159
Annex 266 Opinion by Professor Dr. JoséManuel-Prendez
Muiioz..Arraco on Spanish Captaincies-General
and Governments in the Historical Overseas
Law ........................................................................
........... 161 140
Annex 267 Opinion by Prof. Dr. Mariano Cuesta Domingo
on the Question of the Honduran Rights in the
Waters of the Atlantic Ocean ............................................ 203
Annex 268 Extract from Gazetteer of Nicaragua Published
by the Defense Mapping Agency, November
1985 .......................................................245..............
..........
Rejoinder of the Republic of Honduras