INTERNATIONAL COURT OF JUSTICE
MARITIME DELIMITATION
BETWEEN NICARAGUA AND HONDURAS
IN THE CARIBBEAN SEA
(NICARAGUA v. HONDURAS)
MEMORIAL
SUBMITTED BY
THE GOVERNMENT OF
NICARAGUA
VOLUME!
21 MARCH 2001 TABLE OF CONTENTS
CHAPTER
1 INTRODUCTION . . . . . . . . . . . . . . . . . . 1 . . . . . .
II THE GEOGRAPHICAL AND
GEOMORPHOLOGICAL FRAMEWORK . . . . . . . . 5 . .
III THE HISTORICAL BACKGROUND OF THE
BOUNDARY UP TO 1963 . . . . . . . . . . . . . . . . . . 21
IV THE RELATIONS BETWEEN NICARAGUA AND
HONDURAS (1963-1979) .................. 33
V SITUATION SINCE 1980: THE HISTORY OF
THE DISPUTE ON THE DELIMITATION OF THE
MARITIME ARBAS OF NICARAGUA AND
HONDURAS IN THE CARIBBEAN SEA . . . . . . . . . 39
VI THE APPLICABLE LAW . . . . . . . . . . . . . . . 63. . .
VII THE POINT OF DEPARTURE OF THE MARITIME
DELIMITATION ......................... 75
VIII THE PROCESS OF DELIMITATION BEYOND
THE TERRITORIAL SEA . . . . . . . . . . . . . . .87 . . .
IX EQUITABLE CRITERIA CONFIRMING THE
EQUITABLE RESULT PRODUCED BY THE
BISECTOR METHOD . . . . . . . . . . . . . . 123 . . . .
X THE DELIMITATION IN THE TERRITORIAL SEA . . 145
Xl CONCLUSIONS . . . . . . . . . . . . . . . . . .161. . . . .
SUBMISSIONS . . . . . . . . . . . . . . . . .167. . . . . .
LIST OF MAPS AND FIGURES . . . . . . . . . . . 169 .
LIST OF ANNEXES, VOLUME II . . . . . . . . . 171 . . 1 : INTRODUCTION
1. The present Memorial is submitted pursuant to the Order
of the Court of 21 March 2000.
2. On 8 December 1999 the Government of the Republic
of Nicaragua filed an Application with the International Court of
Justice instituting proceedings against the Republic of Honduras
concerning a dispute over the delimitationof the maritime bound
ary in the Caribbean Sea. The Government of the Republic of
Nicaragua has asked the Court in its Application:
"to determine th{:course of the single maritime boundary
between the areas of territorial sea, continental shelf and ex
clusive economie zone appertaining respectively to Nicaragua
and Honduras in the Caribbean Sea, in accordance with equit
able principles and relevant circumstances recognized by
general international law as applicable to such a delimitation
of a single maritime boundary."
3. This is not the first time that Nicaragua has come before
the International Court of Justice in order to find a solution for
its territorial differences with Honduras. In 1957 Nicaragua and
Honduras were before the Court on the basis of a Special Agree
ment in order to settle a difference of opinion on the validity of
the Arbitral Award of the King of Spain of 1906 that determined
the land boundary of both Parties.
4. This time Nicaragua is pleading before the Court having
filed a unilateral Application against Honduras on the basis of the
Declarations made by both countries under Article 36 (2) of the
Statute of the Court and on Article 36 (1)of the aforesaid Statute
through the effects of Article XXXI of the American Treaty on
1Pacifie Settlement of 30 April 1948 (known as the Pact of Bogotâ)
to which both States are Partie.'
5. Both Honduras and Nicaragua are Parties to the United
Nations Convention on the Law of the Sea of 10 December 1982.
Nicaragua ratified this instrument on 3 May 2000 and Honduras
on 5 October 1993.Thus both Nicaragua andHonduras are bound
by the provisions of this Convention on matters pertinent to this
delimitation including the extent and nature of maritime zones
and the principles that should be applied to effect a maritime
delimitation.
6. This Application has been filed in the context of several
failed attempts at effecting a negotiated solution that began in the
late seventies. Nicaragua has consistently maintained the position
that its maritime Caribbean boundary with Honduras has not been
delimited. Honduras for its part has maintained the position since
the early eighties that there exists a defacto delimitation line that
follows aparallel of latitude from the end point of the land bound
ary that was fixed in 1962 through the mediation of the Organiza
tion of American States (see Chapter III).
7. The land areaabutting upon the maritime areas in dispute
is known as the Miskito or Mosquito Coast because mainly the
Nicaraguan native Indian community known as the Miskitos bas
traditionally inhabited it.lt isof special interest to the Government
of Nicaragua to obtain an equitable solution that will guarantee
to the Miskito and other Nicaraguan lndian communities of the
1. ArticleXXXI of the Pact of Bogotâ provides:
"In conformity with Article 36, paragraph 2, of the Statute of the International
Court of Justice, the High Contracting Parties declare that they recognize, in relation
to any other American State, the jurisdiction of the Court as compulsory ipso facto,
without the necessityf any special agreement so long as the present Treaty is in
force, in ali disputes of a juridical nature that arise among them concerning:
(a) The interpretation a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would constitute the breach
of an international obligation;
(d) The naturer extent of the reparation to be made for the breach of an inter
national obligation."
2area, the traditional access they have had to the resources. The
importance of these communities can be appreciated by the fact
that Nicaragua is the only State in the area that recognizes a
certain degree of autonomy in respect of these communities in
its Constitution. 2
8. The maritime areas in dispute are located in an area in
the Caribbean known as the Nicaraguan Rise. This geographical
area is the most extensive maritime zone in the Caribbean Sea
with depths of no more than 200 meters. It is one of the most
promising new areas in the Caribbean for oil and gas and has been
an area traditionally used by fishermen in this region of the world.
9. Nicaragua's Application asks the Court "to determine
the course of the single maritime boundary between the areas of
territorial sea, continental shelf and exclusive economie zone
appertaining respective!y toNicaragua andHonduras." Nicaragua
has not asked for a definitive line with a beginning and an end:
just an indication of the course it should follow. The idea behind
this request is to avoid entirely the extremely difficult problem
posed by defining any starting point on the highly mobile mouth
of the Coco River where the land boundary ends, and to also avoid
the indication of any maritime end point that might cause mis
understandings with third States.
1O. After further thoughts on this question, Nicaragua con
siders that it would be:convenient for the Parties to have adefinit
ive delimitation line as far as the circumstances will permit. As
2
Article 89. The communities of the Atlantic Coast are an indissoluble part of
the people of Nicaragua and, as such, enjoy the same rights and have the same
obligations.
The communities of the Atlantic Coast have the right to preserve and develop their
cultural identity within the:national union; to provide themselves with their own
forms of organization and to adrninistrate their local affairs in accordance with their
traditions.
The State recognizes the forms of communal property of the lands of the communi
tiesof the Atlantic Coast. Likewise it recognizes the enjoyment and possession of
the waters and forests of its communal lands.
3stated above, the two problems to be avoided are the confusing
situation at the mouth of the Coco River and any third party
interests in the area. With this intention in mind, the concrete
proposai, as explained in Chapter VII, is that the line of delimita
tion should start on a fixed point located 3 nautical miles from
the mouth of the River Coco. This line will be drawn out to the
limit of the territorial sea in the way that is explained in Chapter
X. Chapter VIII will take up from the limit of the territorial sea
and draw the line following a bisector to the angle formed by the
general direction of thecoastlines, until reaching apoint seawards
that will end quite short of any possible third party interests in
the area. From that point further seawards just an indication will
be made of the direction the line should follow.
11. As the Govemment of Nicaragua has indicated in the
Application, whilst the principal purpose of these proceedings is
to obtain a declaration conceming determination of the maritime
boundary or boundaries, the Govemment of Nicaragua reserves
the right to claim compensation for interference with fishing
vessels of Nicaraguannationality or vessels licensed by Nicaragua,
found to the north of the parallel of latitude claimed by Honduras
to be the course of the delimitation line. Nicaragua also reserves
the right to claim compensation for any natural resources that may
have been extracted or may be extracted in the future to the south
of the line of delimitation that will be fixed by the Judgment of
the Court. The Govemment of Nicaragua maintains these reserva
tions at this stage of the pleadings.
12. The Govemment of Nicaragua has taken the step of
bringing this case to the Court, in order to remove the legal un
certainties that exist in this areaof the Caribbean and promote
the legal security of those seeking togo about their lawful busi
ness in the region.
4 II: THE GEOGRAPHICAL AND
GEOMORPHOLOGICAL FRAMEWORK
A. Preliminary: general geography of the region 3
1. Geography is the essential element that must be taken
into consideration for obtaining an equitable result in any maritime
delimitation. In the Gulf of Maine case the Chamber of the Court
indicated the criteria that should be applied for reaching an equit
able result:
"international law... lay(s) down in general that equitable
criteria are to be applied, criteria... which are essentially to
be determined in relation to what may be properly called the
geographical features of the area." (l.C.J. Reports 1984, p.
246 at para. 176) ..
2. In the present Chapter Nicaragua will give an overview
of the geographical features of the area under consideration and
explain their implications for the methodology to be used for
reaching an equitable solution in this very complex geographical
context.
3. The general geographie context of the area in question
is the basin of the western Atlantic Ocean, lying between 9° to
22° N and 89° to 60° W and commonly known as the Caribbean
Sea. Figure I annexed to this volume shows an overview of the
general geographie area involved in this case.
4. The Caribbean Sea is slightly more extensive than the
Mediterranean Sea, embracing an area of approximately 1,063,000
square miles (2,754,000 square kilometres) and, like the mare
nostrum, intercontinental because of its location between the two
continentallandmasses of North and South America. The continen-
3 See, generally, the article on the Caribbean Sea in the Britannica 2001 Standard
EditionCD-ROM, Britannica.com Inc.
5tai coasts of Venezuela, Colombia, and Panama bound it to the
south and Costa Rica, Nicaragua, Honduras, Guatemala, Belize,
and the Yucatân Peninsula of Mexico bound it to the west. To
the north and east itis bound by the Greater Antilles islands of
Cuba, Hispaniola, Jamaica, and Puerto Rico and by the Lesser
Antilles chain, consistingof the island arc that extends from the
Virgin Islands in the northeast to the islands of Tobago and
Trinidad, off the Venezuelan coast, in the southeast.
5. The Caribbean Sea is divided into four main submarine
basins that are separated from one another by submerged ridges
and rises. These are the Yucatân, Cayman, Colombian and
Venezuelan basins. The northemmost is the Yucatân Basin, separ
ated from the Gulf of Mexico by the Yucatân Channel, which runs
between the island of Cuba and the Yucatân Peninsula of Mexico.
Located further south, the Cayman Basin is partially separated
from the Yucatân Basin by the Cayman Ridge that extends from
the southem part of Cuba toward the Central American State of
Guatemala and, midway, rises to the surface to form the Cayman
Islands. The Nicaraguan Rise is a wide triangular ridge that
extends from the continental landmass triangle formed by
Honduras and Nicaragua, via the island of Jamaica, to the island
of Hispaniola (Dominican Republic and Haïti). The Nicaraguan
Rise separates the Cayman Basin from the Colombian Basin that,
in its tum, is partly separated from the Venezuelan Basin by the
Beata Ridge.
B. The area in dispute
6. Following in Figure I the continental coastlines from
Colombia to the Mexican Peninsula ofYucatan, it can be appreci
ated that the arc formation of the continental coastline is broken
by the protrusion of the Nicaragua/Honduras coasts into the Carib
bean Sea. This obtrusion creates a frontal relation between the
coasts of Nicaragua and Colombia and between the coasts of
Honduras and Belize and the Yucatan Peninsula that would other
wise face Colombia. This projection of the mainland into the
Caribbean continues underwater to form the Nicaraguan Rise,
6where the area in dispute is located. This can be also appreciated
in Figure 1.
7. The coasts of Nicaragua and Honduras on the Caribbean
Sea roughly constitute the two sides of an inverted right angle,
open to the southwest, inside of which are located the continental
masses of bath States. Nicaragua deploys around 275 nautical
miles of coastline in front of the Caribbean Sea, without taking
into consideration the inlets and projections that form lagoons and
peninsulas. The coast runs in an almost straight and continuous
north to south direction between meridians 83° and 84° of west
longitude. Honduras, for its part, has a coastal front of approxim
ately 335 nautical miles that runs in an east to west direction
between the parallels 15° to 16° of north latitude.
C. The Mosquito Coast is one of deltas, sandbars, and
lagoons 4
8. There is no relief in the present Nicaraguan territory that
has suffered more extensive and rapid morphological changes -
even on a historical scale - than the coast fronting the Caribbean.
It is in truth a coast in a process of continuous emersion.
9. The most notable effect is therapid accretion and inevit
able advance of the eoastal front due to the constant deposition
of terrigenous sediments carried by the rivers to the sea. The
materials arereturned to the coastby the current under the impetus
of contrary winds. The volume of sediments that the Nicaraguan
rivers contribute to the Caribbean Sea has been estimated at
between 25 and 30 million cubic metres per year. The strong
erosion of the mountains in the interior, the abundant rain and the
considerable flow of the rivers that drain the Caribbean slope of
the country cause this deposition. Citing studies by authorities on
the subject, the Nicaraguan geographer Dr. Jaime Incer Barquero,
indicates that, in terms of unity of length of coast, the submarine
4· Encyclopedia Britannica, article on Central America, The Land, Britannica
2001 Standard EditionD-ROM, Britannica.com lnc.
7platform of Nicaragua receives around 3 times more fresh water
due to the discharge of the rivers than the Atlantic platform in
front of the United States. (lncer, Viajes, Rutas y Encuentros
(1502-1838), San José,Costa Rica 1993, pp. 29-30).
10. As a consequence of the process of accretion a series
of barriers has been formed that runs parallel to the coast, and
which intercept theflow of therivers at theirmouths, forcing them
in sorne cases to form deltas as is the situation with the Coco
River, theboundary withHonduras. Dr. Incer describes thepresent
day situation of the Miskito coastline as follows:
"A collection of coastallagoons extends from Cape Camaron
in Honduras to Bluefieldsin Nicaragua...The chain oflagoons,
separated from the seaby thin sand barriers, forms in this area
the most remarkable feature of the Caribbean Coast. The
lagoons are more in the nature of pools formed by the rivers
at their mouths than inroads from the sea. They would be
excellent ports if it were not for their shallow depths, the
continuous sediments that are deposited in them and the sand
barriers that obstruct their entrance." (Ibid. p. 290).
11. This phenomenon was recorded by Mr. Pablo Levy, a
French engineer and Member of the Societies of Geography,
Botany and Anthropology ofParis, who in his geography of Nica
ragua in the year 1873, wrote:
"Between Cape Gracias a Dios and Cape Camar6n (today in
present day Honduras) the coast is low and marshy; the same
is repeated to the south of the cape up to Point Mico. The
rivers that flow through it extend in the form of a lagoon
before reaching the sea. During winter these lagoons com
municate among each other in such a way that the coast is
like a row of islands." (Levy, Notas Geograficas sobre la
Republica de Nicaragua, Managua, Nicaragua 1976, p. 93).
5
· As may be appreciated in Chapter III, Nicaragua until 1963 claimed and
administered territories much further to the North of the present boundary at the
Coco River. This is why. Levy includes in his geography of Nicaragua descrip
tions of what is present day Honduras.
8D. The continental shelf
12. Nicaragua has an ample continental shelf that projects
under the sea like a shoal, relatively smooth and with a moderate
slope until it ends abruptly in acontinental escarpment. The conti
nental shelf up to the 200 metre isobath, though not so generous
in the south, widens remarkably towards the north, forming an
ample submerged territory covered by a tropical sea of very little
depth. Its extension is approximately that of forty percent (40%)
of the continental landmass of Nicaragua.
13. The platfomt includes what is known as the Nicaraguan
Bank or Rise. The average depth along the spine of the platform
is around 20 metres and it deepens gradually until it reaches the
200 metres level on the border of the so-called Hess Escarpment,
from whence it drops down to thecontinental slope until itreaches
the abyssal plain. Taking as the externat limit the 200 metres
isobath, the continental shelf fronting Nicaragua is widest in the
region of Cape Gracias a Dios whence it continues along the
Nicaraguan Rise in a north easterly direction. Figure II illustrates
the extent of the continental shelf up to the 200 metres isobath.
14. The Nicaraguan continental shelf, as in the case of other
wide platforms in the Caribbean area like that of Yucatan, slopes
gently and almost uniformly from the coast to the continental
slope. The moderate slope and the shallow depths of the sea have
permitted, in the widest part of the shelf, the formation of the
extensive reefs and great submarine rises that are characteristic
of the area in front of Cape Gracias a Dios.
15. Among these rocks, reefs andcays appertaining to Nica
ragua we may mention Hall Rock, South Cay, Arrecife Alargado,
Bobel Cay, Port Royal Cay, Porpoise Cay, Savanna Cay, Savanna
Reefs, Media Luna Cay, Bum Cay, Logwood Cay, Cock Rock
and Arrecifes de la Media Luna. These reefs and cays have tradi
tionally been used as resting and fishing places by the lndian
Communities in the area, in particular by the Sambo Miskito
Indians of the Miskito Coast of Nicaragua.
9E. The land boundary
16. Figures I and III clearly show the extreme convexity of
the location of the Nicaragua/Honduras land boundary on the
Caribbean. In effect, the entire coastline of both countries forms
a triangle that juts out into the sea. This general convexity the
coastline is greatly compounded by the Cape formed at the end
of the land boundary located at the mouth of the River Coco. It
is a cape with two points, one on each margin of the River, and
separated only by a few hundred meters.
17. The boundary through much of the central and eastern
land territory follows the thalweg of the River Coco that flows
generally in a northeasterly direction for the greater part of its
course in that area. The Coco River is the longest river of the
Central American isthmus and bears one of the largest volumes
of water. The Coco River forms an unstable delta- "a veritable
vortex wherewinds andcurrentsare split" (Incer,Op. Cit.p. 31)
before it finally empties into the Caribbean Sea at Cape Gracias
a Dios.
18. There is a description of the Coco River in a document
prepared by Commander Kennedy at therequest of theSecretariat
of the United Nations. The document is titled "A Brief Geograph
ical and Hydrographical Study of Bays and Estuaries the Coasts
of which belong to different States." This document was to serve
the purpose of illustrating the existing cases to the First United
Nations Conference on the Law of the Sea of 1958. The brief
description of the Coco River is based on the West Indies Pilot,
Volume 1,Tenth Edition, 1941. It states:
"Information regarding the estuary is scanty and old; it is
known that the coastline and depths are liable to frequent
changes due to the alluvial deposits from this large river."
And adds:
"A shifting bar fronts the river entrances, having depths from
3 to 6 feet, and the sea constantly breaks on it. At high water,
vessels drawing 4 feet can at times cross the bar to reach
10 Puerto Cabo Gracias a Dios on the south side of Isla
Martinez." (UN Document A/CONF.l3/15, p. 208.)
19. The delta of the Coco, where the land boundary ends
as it enters the sea, has been rapidly increasing and projecting
Cape Gracias a Dios towards the sea. It is estimated that this Cape
shifted in the 19th Century from 83° 11'to 83° 09' of west longi
tude, that is to say the equivalent 3.7 kilometres. The explana
tion for this advance is the great volume of sediments that the
river discharges into its delta (about 6.5 million cubic metres per
year) and the coastal current is not sufficiently strong to carry
them off as soon as they reach the sea. (lncer, Op. Cit. p. 31)
20. As will be explained below and further in Chapter III,
Nicaraguaand HondurasestablishedaJoint Boundary Commission
under the auspices of the Organization of American States. The
Commission's Report of 14 July 1962 has the following report
after its in situ inspection of the delta of the River Coco:
"ln comparing this map (theone preparedby the Commission)
with that prepared by the British Navy for the area of Cabo
de Gracias a Dios, and with that of Maximiliano Sonnenstem
-but especially with the former, which appears to have been
prepared more carefully and in greater detail- it is noted that
the topography of this area has undergone constant changes
throughout the years, sornecaused by theclosing of secondary
channels and the appearance of new ones, white others
resulted when part of the Gracias a Dios Bay filled up and
Sunbeam appeared. In general, it has been noted that in this
region of the mouth of the Coco River, the land has been
advancing toward the sea. On the British map mentioned there
are various notes that indicate topographical changes in the
years 1883, 1886 and 1912. The numerous changes in the
topography of the region through the years can be seen very
clearly in the aerialphotographsaken." (emphasis added) (See
Annex 1. p. 28).
21. A relevant feature of the river mouth is that the Nica
raguan margin of the Coco River has traditionallyprojected further
seawards than the Honduran margin. The Report of the Mixed
11Commission verifies this and the Chart it prepared illustrates this
quite clearly (see Chapter III). This pointis further emphasized
at p.25 of the Report:
"INSPECTION ...e) On the north-eastern tip of the island,
which is south of the Brazo del Este, is a narrow strip of land
that extends to the sea, or in geographie terms, a cape, at
which point the seacoast shifts abruptly." (see Annex 1 for
the Report and the Chart pp. 24-29)
22. The projectionfurtherseawardsof theNicaraguanmargin
of the river has been a constant throughout the years and can be
verified in the following collection of illustrations in which the
mouth of the Coco River can be appreciated. These date from the
mid 19th Century to the present:
23. It is necessary to begin with two maps annexed to the
Honduran Reply in the Pleadings of the case conceming the
Arbitral Award of the King of Spain. (l.C.J. Reports 1960, Vol.
II).
Map C is areproduction of maritime chart No. 1219,designed
by the Royal Britannic Navy and published in June 1843 (Plead
ings, Vol II p. 540). The projection further seaward of what later
became the margin of the Coco River appertaining to Nicaragua
is quite clear. This map is here reproduced as Figure IV.
Another of these - map B - is a reproduction of the North
East section of the map of Nicaragua prepared in 1895 by Mr.
Sonnenstem (Pleadings, p. 539). The shape of the river mouth
is quite visible. The prolongation further seaward of the
Nicaraguan margin of the mouth of the river is clear. Map B is
here reproduced as Figure V.
24. Figure VI is a representation of the map designed from
the aerial photography taken in 1962for use by the Mixed Bound
ary Commission. It shows plainly that the Nicaraguan margin
abuts further seaward than the Honduran (see Chapters III and
VII).
25. Finally, thequite recent satellite image taken in February
2000 (Figure VII) shows the situation today. The river mouth
12shows further movement seaward towards the north and east than
was the case in 1962. In this changing situation one fact appears
constant: the Nicaraguan margin has always extended further
seaward than the Honduran.
26. The Nicaragua-Honduran boundary as it is today was
determined by the several procedures that will be explained and
detailed further in Chapter III. For present purposes suffice it to
say that the western maritime spaces and the land boundary have
been completely determined but that nothing has been agreed or
determined on the eastern maritime boundary.
27. These delimitation procedures began with a Nicaragua
Honduras Mixed Boundary Commission that in 1900 delimited
the western maritime spaces and part of the land boundary. In
1906 the Arbitral Award of the King of Spain, which was con
firmed as valid by the Court in 1960, fixed the rest of the land
boundary up to its contact with the Caribbean Sea (/C.J. Reports
1960, p. 192).
28. Since there were sornepoints of the Arbitral Award that
remained to be clarified on the ground, Nicaragua and Honduras
signed an agreement on 13 March 1961, whereby under the aus
pices of the OAS they constituted aMixed Commission that, inter
alia, would
"...determine the point of departure of the natural limit
between both countries at the mouth of the Coco River" (re
conocer el punto de partida del limite natural entre ambos
pafses en la desembocadura del rio Coco) (see Annex 1,p. 3)
29. The Mixed Commission travelled to the mouth of the
river and determined which was its principal arm and fixed the
geographie coordinates of the starting point. This is transcribed
in the Minutes of the 12th Session of the Mixed Commission that
indicates that the "point of departure of thenaturallimit.. .islocated
at 14°59.8' N and 83°08.9' W". (See Annex 1, p. 6).
30. This endpoint, at the geographie coordinates indicated
above, is located at present about a mile inland or up river and
13is no longer situated at the closing line of the mouth of the Coco.
As has occurred in previous periods, the mouth of the Coco has
ambled north and east, leaving inland the point fixed by the OAS
as the thalweg at the mouth of the river in 1962. For an illustration
of the present day situation at the mouth, a satellite picture of the
area can be seen in Figure VII. As indicated above, this picture
was taken in February 2000 and has marked on it the present day
location of the geographical coordinates determined by the Mixed
Boundary Commission in 1962.
F. General observations on the geographical features involved
i. The elbow formation of the continentallandmass at the bound
ary
31. The nature of the coastal configurations is probably one
of the most relevant geographical circumstances taken into con
sideration by the Court since theNorth Sea Cases. (l.C.J. Reports
1969, p. 3). In that case Germany's concave coastline vis à vis
The Netherlands' and Denmark's was seen as a relevant circum
stance for determining the appropriate method to be used in the
delimitation. A cursory glanee at any map shows that Germany's
concave coast is a mild geographical accident compared to the
extreme convexity of the Nicaraguan-Honduran boundary.
32. It is true that the general aspect of the Nicaraguan
Honduran landmass has an elbow formation that has been
described above as roughly constituting the two sides of an
inverted right angle, open to the southwest, inside of which are
located the continental masses of both States. This of itself would
be a remarkably relevant circumstance, but what makes the situ
ation sui generisis that the exact location where the land boundary
ends is like the points of protruding needles. There is no other
boundary in the world ending on such a pointed cape on a river
delta and resulting in such a pronounced tum in the direction of
the coast precisely on the boundary line. The consequences of this
geographical feature is that the only two points that would domin
ate any delimitation based on median line or equidistance calcula
tions are the two margins of the River. This remains the same
14even at a distance of 200 nautical miles if only the mainland coast
is used.
ii. The land boundary coïncides with the coast on a river delta
33. The second important geographical element that enters
into play is the fact that the land boundary ends in the main mouth
of a river delta. Ali deltas are by definition physical-geographical
accidents of an unstable nature and suffer changes in size and form
in relatively short periodsf time. This is what has happened in
the deltaof the Coco as can be seen in the illustrations indicated
above.
iii. The delimitation is in an enclosed sea
34. A third geographical element is that the delimitation is
taking place in aemi··enclosedsea where other delimitations have
been made and will continue to be made. It is evident that in this
enclosed sea with sharp changes in the coastal directions, any
delimitation is boundtoaffect others. This situation has been aptly
described as the"knock-on effect" (Evans, Relevant Circumstances
and Maritime Delimitation, Clarendon Press, Oxford, 1989, p.
235). The most obvious example in a quite similar geographie
situation- the semi-(~nc Mledsteranean Sea- would be the
Libya/Malta Case. ln this case the Court took into account as a
pertinent circumstance the fact that Malta was only a "minor
feature" of the northern littoral of the Mediterranean Sea (l.C.J.
Reports 1985, p. 13, at para. 69) But even in the more unencum
bered African coastline, theuinea/Guinea-Bissau Arbitral Tribu
nal adopted a delimitation method "qui s'intègreaux délimitations
actuelles ou futures dela région."(RGDIP, 1985, p. 528 at para.
108).6
35. The use of a parallel of latitude to define the Nicaragua
Honduras maritime boundary, as Honduras proposes, is inherently
6· The translation reads as follows: "which is integrated into the present or future
delimitations the region as a whole" (International Law Reports 71, p. 636 at
para. 108).
15unfair in the macrogeographical situation created in a semi
enclosed sea. To use the words of the Court in the North Sea
Cases, the result of using certain methods of delimitation - in the
present case a parallel of latitude in a semi-enclosed sea - pro
duces results "that appear on the face of them to be extraordinary,
unnatural or unreasonable"(l.C.J. Reports 1969, para. 24).
36. Experienced legal advisers have commented:
"(T)he use of parallels or meridians is effectively limited to
situations where the general directionof the coasts in question
is roughly north-south or east-west. In other situation this
method will produce precisely the result it is meant to avoid:
the inequitable eut-off of the maritime extensions of one or
more of the parties." (Legault, L. and Blair Hankey, Inter
national Maritime Boundaries, Vol. I, 1993, p. 212)
37. The use of parallels of latitude is inherently unfair. It
has the same logic behind it, as would a Nicaraguan daim that
the delimitation withHonduras should follow ameridian oflongi
tude straight north from the mouth of the Coco River! Figure VIII
illustrates the directions followed by the parallel and the meridian
at the boundary. As can be appreciated, the use of a meridian
would deprive Honduras of substantial maritime areas as the use
of a parallel would so deprive Nicaragua.
38. In the Gulf of Maine Case, the Chamber made sorne
observations on the use of the method of drawing a perpendicular
to the general direction of thecoastline. This method was certainly
behind the idea of the use of parallels in situations where the
coastlines were more or less straight and had a general south-north
direction like the coasts of South America. The comment of the
Chamber fits the present situation exactly:
"It is almost an essential condition for the use of such a
method in a specifie case that the boundary to be drawn in
the particular case should concem two countries whose territ
ories lie successively along a more or less rectilinear coast,
for a certain distance at least. The ideal case so to speak,
would be one in which the course of the line would leave an
16 angle of 90° on either side." (l.C.J. Reports 1984, p 246 at
para. 176).
39. In thatcase theChamber wasconsidering aperpendicular
that would divide equally into two 90° angles on either side. In
the present case, since there is precisely a sharp change of direc
tion at the mouth of the Coco River, the area to be divided is
greater than 180°.The direction of the Nicaraguan coasts basically
follows a meridian of longitude. If the Honduran coast also con
tinued in a generally northerly direction, then the parallel of lati
tude would bisect the maritime spaces and leave an equitable
amount ofmaritime areas toeach State; in fact, somewhere around
the 90° angle on each side envisioned by the Chamber. But the
situation is quite different: the Honduran coast turns sharply and
follows roughly a parallel of latitude. A glanee at Figure VIII
shows that a delimitation following the parallel of latitude east
ward from the end of the land boundary would leave a dispropor
tionately greater amount of maritime areas to Honduras. In the
words quoted above in paragraph 36 from the North Sea Cases:
the result could not possibly be more "extraordinary, unnatural
or unreasonable."
40. In the Tunisia-Libya Case the Court referred to the so
called "eut-off' effect as afactor productive ofinequitable results.
"The question of the 'eut-offeffect' arises only in the context
of the application of a geometrical method, such as that of
equidistance, whereby the delimitation line is directly gov
erned by points on the coast concerned, or in relation to a line
drawn from the frontier point on the basis of a predetermined
direction, such as the northward line contended for by Libya."
(l.C.J. Reports 1982, p. 18 at para. 76) (emphasis added).
41. If any illustration were needed of what the Court had
in mind, the use of a parallel in the present circumstances could
serve that purpose quite well. It is basically this inequitable claim
by Honduras that underlies the present proceedings.
17iv. Geomorphology of the Nicaraguan Rise
42. Another physical element that must not be lost sight of
in the present case is the geomorphology of the Nicaraguan Rise.
As can be appreciated in Figure III, or in any map of the area
reflecting bathymetrie data, the Nicaraguan Rise is the maritime
"shadow", the prolongation of the mainland of Nicaragua and
Honduras into the sea. This prolongation clearly heads in a north
easterly direction towards Jamaica.
43. The continental shelf of Nicaragua and Honduras in the
Caribbean is undoubtedly a natural prolongation of the angle
formed by the coasts of both States. This prolongation follows
a northeasterly direction quite similar to that resulting from the
method of delimitation that Nicaragua willpropose as anequitable
solution to this case, that is a bisector to the angle formed by the
general direction of the coastlines. In other words, there is a quite
distinct continuity andconsistency between the continental physi
cal and political geography, the direction of the coasts and the
morphology and orientation (projection) of the continental shelf
of both countries.
44. The continental shelf of Nicaragua and Honduras that
encompasses the Nicaraguan Rise is not a minor oceanographie
incident. lt is a remarkably relevant oceanographie feature on the
scale of the entire Caribbean Sea: the natural submarine prolonga
tion of the continental spaces of Nicaragua and Honduras in the
direction of Jamaica generates a sort of corridor or ridge that
divides the Caribbean in two great basins situated northwest and
southeast of that geographical accident.
45. A glanee at any bathymetrie chart will show the projec
tion of the continental mass of Nicaragua and Honduras into the
sea. It is a phenomenon that has no relation with the coastsof any
of the surrounding neighbours in the continent.
18G. The position of the parties
46. The position of the Parties and its development to the
present date will be explained amply in Chapters III, IV and V.
For present purposes the following summary has been prepared.
47. The position of Nicaragua with relation toits northem
Caribbean maritime spaces is that they have not been delimited
with Honduras. This, infact, is a situation that Nicaragua has with
ail its neighbours and not only with Honduras. On the latest of
ficial Map of Nicaragua, see Figure B, Volume III (maps), the
following inscription is written:"The maritime frontiers in the
Pacifie Ocean and the Caribbean Sea have not been juridically
delimited." As will be further explained in Chapters IV and V,
Nicaragua has constantly maintained this position vis à vis
Honduras since the 60's. Before that period, from the time of
independence in the first half of the XIXth Century until the
decision of the Court in 1960 and the intervention of the OAS
in 1962,Nicaraguaclaimed and administered territories asofright
much further north of the present boundary line on the Coco
River. This story can be partly appreciated in the 3 Volumes of
Pleadings to the case conceming theArbitral Award Made by the
King of Spain on 23 December 1906.
48. It was precisely this Jack of delimitation and the con
fusion it created that led Nicaragua in the late70's to propose
negotiations with Honduras for the delimitation of the maritime
areas in the Caribbean. At thetime Honduras accepted this propo
sai without conditions and without any indication that she con
sidered that a maritime boundary was already in place. The
regional conflict that started in 1979 with the fall of the
Nicaraguan Govemment of that period put an end to any further
negotiations. (See Chapters IV and V for more details).
49. lt was in the light of thesepoliticaldevelopments, which
pitted the new Govemment of Nicaragua against its neighbours
19and the United States in the early 80's, that Honduras began to
claim that the maritime areas bad already been delimited and that
this delimitation ran eastward into the sea following a parallel of
latitude from the terminus point of the river mouth boundary that
bad been fixed at 14° 59.8' N and 83° 08.9' W. Nicaragua bas
vigorously contested this allegation from the first moment it was
made as will be seen in Chapter V.
7· See the cases brought by Nicaragua before the International Court of Justice
against the UnitedStates, Honduras and Costa Rica. The Case conceming Military
and Paramilitary Activities in and against Nicaragua (Nicaragua. United States
of America) was filed on 8 April 1984 and, inter alia, a Judgment on the Merits
was rendered by the Court and can be seen in.C.J. Repons 1986, p. 14. The cases
against Honduras and Costa Rica- Border and Transborder Armed Actions - were
filed by Nicaragua on8 July 1986. Nicaragua subsequently discontinued these cases
but in both cases the Memorialof Nicaragua on the Merits was filed. El Salvador
for its part attempted to intervene unsuccessfully in the Case of Nicaragua against
the United States: see the Order of 4 October 1984 in J.C.J.Repons 1984, p. 215.
20 III :THE HISTORICAL BACKGROUND OF THE
BOUNDARY UP TO 1963
A. History of the Boundary Before 1960
1. The diplomatie history of the delimitation of the bound
ary of Nicaragua and Honduras began with the Treaty on the
Limits of Nicaragua andHonduras (Tratado Ferrer-Medina) signed
at San Marcos de Colon on 4 July 1869. The Treaty did not enter
into force and its relevance is the express recognition it makes
of a relevant historical fact. Article 6 provides:
"The two Commissioners fix their attention on the question
of determining if the Coco River will be the boundary line
up to its mouth in the Atlantic and, noting that Nicaragua has
been in exclusive possession of this river and of the port of
the same name, 1he boundary in that eastern sector should
follow parallel to the northem ridges of the mountains that
make up one of the borders of its basin, and following the
same direction until reaching the Atlanticcean." (Case con
ceming the Arbitral Award made for the King of Spain on
December 1906 judgements of 18 November 1960; l.C.J.,
Reports 1960, Pleadings pp. 224-226)
2. The following year another Treaty was signed in Mana
gua (Ferrer-Uriarte Treaty) on 1 September 1870 that established
the boundary with greater precision. Thus Article VI and VII of
this Treaty fixed aline that ran north of the Coco River that was
recognized as "appertaining to Nicaragua". The boundary ended
at the"Atlantic Ocean exactly at parallel15° 10' of north latitude
and 83° 15' of longitude west of the Greenwich Meridian"(lbid.
pp. 227-229).
3. These Treaties did not enter into force. Their present
relevance is that they also prove that - whatever the location of
the boundary finally fixed by the Arbitral Award of the King of
Spain in 1906- the only tradition that existed in the area was that
"Nicaragua had been in possession of that river (the Coco) and
21of the harbour of the same name" ("Nicaragua a été en possession
exclusive de ce fleuve et du port du même nom"). This "pos
session" only ended after the intervention of the OAS in 1962 that
will be elaborated upon subsequent!y.
4. In 1893 the liberal party in Nicaragua started arevolution
that ousted the conservative party that had been in power many
years. Shortly afterwards the new Nicaraguan President, General
Jose Santos Zelaya, instigated a similar revolution in Honduras
and placed in power his Honduran friend from the Liberal Party,
Dr. Policarpo Bonilla. The aspiration of President Zelaya was to
recreate the union of the five Central American States that had
disintegrated in 1838. Throughout his long presidency, which
lasted until 1909, this was his constant aim. The story of the
Nicaragua-Honduras relations of this period can be read in the
Pleadings presented on behalf of Nicaragua in theArbitral Award
Case by Mr. Philip Jessup, as he then was, shortly before his
election as Member of the Court. (Pleadings Vol II, p. 221 and
pp. 226-229).
5. President Zelaya's ascent topower, and that of the friend
he installed in the Honduran Presidency, made possible the con
clusion of a general treaty on boundaries in 1894. After ali, nation
al boundaries were of little importance when the object was to
be reunited in a single State. This lack of interest in the border
situation can clearly be appreciated in the events that took place
later on. A change of Govemment in Honduras in 1903 provoked
a new invasion of Honduras. This time General Zelaya's liberal
forces entered the Honduran capital of Tegucigalpa on 25 March
1907. A new President was installed, Mr. Miguel Davila, and
peace talks started. In the mean time, the boundary situation had
been submitted to the Arbitration of the King of Spain in accord
ance with the Boundary Treaty of 1894. The Award had been
rendered in 1906 and had wholly favoured the position of
Honduras as will be seen later. Nonetheless that Award was never
an object of the negotiations that ensued after the surrender of
Honduras. It was not the reason for the war and General Zelaya
had no interest in it and had in fact congratulated his Honduras
colleague when the Award was given. (l.C.J Reports 1960, p. 192
at para.210). What interested Mr. Zelaya was the Central Ameri-
22 8
can reunification and not borders. When a Peace Treaty was
finally signed in October 1907 and the Washington Peace Confer
ence took place, the position backed by Nicaragua and Honduras
was that of the reunification of Central America. What finally
came about fell quite short of that and mention of this is made
only to emphasize the little interest General Zelaya had in the
border problem. Sorne have even insinuated that he was quite
content with having lost the Arbitral Award because it gave him
an opportunity of showing his Central American spirit and his love
for Honduras. Others have written that this lack of interest in the
affair was also shown in Nicaragua' s negligent handling of its
defence before the King of Spain. (Pasos Argüello, Los Conjlictos
Intemacionales de Nicaragua, Managua, 1982, pp. 95-96).
6. The general boundary treaty was signed on October 7,
1894 and came into force in December 26, 1896 when the
exchange of instruments took place. This Treaty, according to
Latin American usage, is known as the Gâmez-Bonilla Treaty.
(This treaty is reproduced in l.C.J. Reports 1960, p. 192 at pp.
199-202). In accordance with its provisions, Nicaragua and
Honduras set up aMixed Boundary Commission, whose duty was
to settle in a friendly manner all pending doubts and differences,
and to demarcate on the spot the dividing line which was to con
stitute the boundary between the two Republics (article l).
7. Among the rules goveming the Commission's task, it
was enjoined first of all to apply the uti possidetis iuris of 1821,
the year of the independence of Central America from Spain.
Failing this, the Commission should determine the equitable line
after studying all available maps and documents. The possibility
was also left open for the Commission, if it deemed it appropriate,
to grant compensations in arder ta establish, in so far as possible,
a well-defined, natural boundary line (article II.3, 5,6). The point
8
· A recent general publication characterizes Zelaya as "a committed nationalist.
He promoted schemes forentral American reunification ... " See Article on Nicara
gua, History of, Sectionndependence in Encyclopedia Britannica 2001 Standard
EditionCD Rom. Further Articles in same Encyclopedia under Zelaya, JoséSantos
and under Honduras: The20thCentury.
23or points of the boundary line that could not be settled by the
Commission were to be submitted to arbitration (article III).
8. The Mixed Boundary Commission provided for by the
Gâmez-Bonilla Treaty met from 24 February 1900 onwards. The
lastof its eight meetings was held on August 29, 1904.The Com
mission succeeded in fixing the boundary from the territorial
waters in the Pacifie (Gulf of Fonseca) to the Portillo of Teoteca
cinte that is located more or less one third of the way across the
land territory. However, it was unable to agree on the boundary
from that point to the Atlantic Coast andrecorded its disagreement
at its meeting of 4 July 1901.
9. The Parties agreed to appoint the King of Spain as Sole
Arbitrator on October 2, 1904. King Alfonso XIII handed down
the Arbitral Award on December 23, 1906, in accordance with
which the dividing line between Nicaragua and Honduras from
the Atlantic Ocean to the Portillo de Teotecacinte, where the
Mixed Boundary Commission had abandoned it in 1901, is fixed
in the following manner:
"The extreme common boundary point on the coast of the
Atlantic will be the mouth of the River Coco, Segovia or
Wanks, where it flows out in the sea close to Cape Gracias
a Dios, taking as the mouth of the river that of its principal
arm between Hara and the Island of San Pfo, where said Cape
is situated, leaving to Honduras the islets and shoals existing
within said principal arm before reaching the harbour bar, and
retaining for Nicaragua the southem shore of the said principal
mouth with the said Island of San Pfo, and also the bay and
town of Cape Gracias a Dios and the arm or estuary called
Gracias which flows to Gracias a Dios Bay, between the
mainland and said Island of San Pfo.
Starting from the mouth of the Segovia or Coco, the frontier
line will follow the vaguada or thalweg of this river upstream
without interruption until it reaches the place of its confluence
with the Poteca or Bodega, and thence said frontier Iine will
depart from the River Segovia, continuing along the thalweg
24 of the said Poteca or Bodega upstream until it joins the River
Guineo or Namasli.
From this junction the line will follow the direction which
corresponds to the demarcation of the Sitio de Teotecacinte
in accordance with the demarcation made in 1720to terminate
at the Portillo de Teotecacinte in such amanner that said Sitio
remains wholly within the jurisdiction of Nicaragua" (This
award is quoted in l.C.J. Reports 1960, p. 192 at paras. 202-
203).9
1O. On 25 April 1911, after the fall from power of General
Zelaya in Nicaragua, the Foreign Minister of Honduras addressed
a Note to the Foreign Minister of Nicaragua pointing out that "it
would be desirable to demarcate the small portion of the line
which...extends from the junction of the Poteca or Bodega River
with the Guineo or Namasli River as far as the Portillo de Teote
cacinte, since the Arbitral Award fixed the rest of the line along
natural boundaries".
9
· The Original Spanish text: "El punto extremo limitrofe comun en la costa del
Atlântico serâ laesembo,:adura del rio Coco, Segovia 6 Wanks en el mar, junto
al Cabo de Graciasâ Dios, considerando como boca del rio la de su brazo principal
entre Hara y la isla de San Pfo, en donde se halla el mencionado Cabo, quedando
para Honduras las isletas o cayos existentes dentro de dicho brazo principal antes
de llegarâ la barra, y conservando para Nicaragua la orilla Sur de la referida boca
principal con la mencionada isla de San Pio, mâs la bahia y poblaci6n del Cabo
de Gracias â Dios y el brazo 6 estero llamado Gracias, que va â la bahia de Gracias
â Dios, entre el continente y la repetida isla de San Pio.
A partir de la desembocadura del Segovia 6 Coco, la linea fronteriza seguirâ por
la vaguada o talweg de este rio, aguas arriba sin interrupci6n hasta llegar al sitio
de su confluencia con el Poteca o Bodega, y desde este punto, la dicha linea fronte
riza abandonarâ el rio Segovia, continuando por la vaguada del mencionado afluente
Poteca o Bodega, y siguiendo aguas arriba hasta su encuentro con elrio Guineo
o Namasli.
Desde este encuentro la divisoria tomarâa direcci6n que corresponde a la demar
caci6n del sitio de Teotecacinte, con arreglo al deslinde practicado en 1720, para
concluir en el Portillo de Tc!otecacinte, demodo que dicho sitio quede integro dentro
de la jurisdicci6n de Nicaragua".
25 11. The Foreign Minister of Nicaragua, however, far from
expressing his accord, sent a long Note to the Foreign Minister
of Honduras on March 19, 1912, challenging the validity and
binding character of the Award. This represented a complete
change of position from that adopted by General Zelaya in 1906
when he had congratulated his Honduras colleague upon hearing
the news of the Award.
12. The precariousrelationsbetween the two countriescaused
by the dispute, led to numerous boundary incidents, frustrated
mediations, and led to the expressionof the most radical territorial
daims.
13. The importance of the 1957boundary incidents, sparked
off by the Honduran attack upon the Nicaraguan post of Mokor6n,
led to the intervention of the Council of the Organization of
American States (OAS) on May 1 st(Union Panamericana, "Hondu
ras y Nicaragua", Aplicaciones del Tratado Interamericano de
Asistencia Redproca 1948-1960, 3aed., pp. 219-292.)
14. The Ad hoc Committee established by the Council to
mediate between Nicaragua andHonduras achieved the acceptance
by the Govemments of both countries of the submission to the
Court of their disagreement with respect to the Arbitral Award
handed down by His Majesty the King of Spain on 23 December
1906, with the understanding that each State "shall present such
facets of the matter in disagreement as it deems pertinent".
15. Honduras maintained that the Court had to declare that
Nicaragua was under the obligation to give effect to the Award,
which was in force and unassailable.
16. Nicaragua, in contrast, considered that the point was to
answer the claim of Honduras, presenting facts and arguments
considered appropriate, in order to impugn the validity of the
Arbitral Award and the reasons as to why it was, in any case,
incapable of execution by reason of its omissions, contradictions
and obscurities. On that score, Nicaragua mentioned, inter alia,
the impossibility of execution of the Award, due to the equivocal
references as to the principal arm of the Coco River and to the
26junction between the Portillo de Teotecacinte and the position of
the Sitio de Teotecacinte.
17. The Agreement to submit the case to the Court was
approved by the OAS Council on July 5, 1957 and formalized
and completed by the Parties on the 21st.
18. The International Court of Justice held in its Judgrnent
of 18 November 1960 (l.C.J. Reports 1960 p. 192 ff.), "that the
Award made by the King of Spain on 23 December 1906 is valid
and binding and that Nicaragua is under an obligation to give
effect to it" (p. 217).
19. Whilst the decision of the Court was pending, Honduras
amended its Constitution in order to raise its territorial claims to
the highest level in its domestic law in order to impose on future
Honduran Govemments a policy that left no margin for compro
mise.
20. Article 6 of the Constitution ofDecember 19, 1957 thus
proclaimed that the limits of the territory of Honduras with the
Republic of Nicaragua were:
"those established by the Mixed Honduran-Nicaraguan Bound
ary Commission, in 1900 and 1901, according to the descrip
tion of the first section of the dividing line, contained in the
second act of June 12, 1900, and in later acts, to Portillo de
Teotecacinte, and from that place to the Atlantic Ocean in
accordance with the Arbitration Award issued by His Majesty
the King of Spain on December 23, 1906".
21. Looking to the maritime areas which the Award of the
King of Spain had ignored, the Honduran legislators replaced the
quite brief and clear wording its previous Constitutions had tradi
tionally used to define its territorial issues 10by the formulation
10· The Constitution of 1924 had only stated that (Article 5): "The territory of
Honduras and its territorial division will be detennined by law": The Constitution
of 1936 repeated (Article 4) the same disposition.
27of expansive daims in ali directions. Thus, in the Caribbean, the
Constitution claimed as Honduran:
"The Bay Islands, The Swan Islands, Santanilla or Santillana,
Viciosas, Misteriosasand thecays: Gorda, Vivorillos,Cajones,
Becerro, Cocorocuma, Caratasca, Falso, Gracias a Dios, Los
Bajos, Pichones, Palo de Campeche and ali others located in
the Atlantic which historically and juridically belong to it''.
22. According to the 1957 Constitution, the rights of
Honduras also extended to:
"the air space, the stratosphere, the territorial sea, the bed and
subsoil of the submarine platform, continental and insular
shelf, and other underwater areas adjacent to its territory
outside the zone of territorial waters and to a depth of two
hundred meters or to the point where the depth of the
superjacent waters, beyond this limit, permits the exploitation
of the natural resources of the bed and subsoil".
23. At that time, the Constitution in force in Nicaragua was
the one promulgated on Novernber 1st, 1950 which, following
the previous Constitutions of March 22, 1939, and January 21,
1948, defined the Republic with sobriety as comprising the territ
ory "between the Atlantic and the Pacifie Oceans and the Repub
lics of Honduras and Costa Rica", and including also "the adjacent
islands, the subsoil, the territorial sea, the continental shelf, the
submarine slope, the air space and the stratosphere" (Article 5).
B. Effects of the Court's Judgment and the Intervention of
the OAS (1960- 1963) 11
24. In view of the Parties' failure to agree on the way the
Award of 1906 should be implemented, Nicaragua requested the
II. See Infonne de la Comisi6n Interamericana de Paz sobre la tenninaci6n de
las actividades de la Comisi6n Mixta, July /6, (OEA/Ser.UIII/11.9), with
appendices including, inter alia, the Arbitral Awardthe Basis of Arrange
ment agreed by thearties March 13, 1961, the Minutes of the Mixed Commission
28intervention of the Inter-American Peace Committee on February
16, 1961. The Committee prepared a document entitled Basis of
Arrangement that was accepted by the Parties on March 13.
25. According to the said Basis a Mixed Commission, com
posed of the Chairman of the Inter-American Peace Committee
and a representative of each Party, was constituted with the
mission
"...to fix on the ground the boundary line from the juncture
of the Bodega or Poteca River with the Guineo River as far
as Portillo de Tt~otecac ind,te";
"to verify the starting point of the natural boundary between
the two countries at the mouth of the Coco River"
[..]
"under the terms of the Arbitral Award of December 23,
12
1906".
26. Both the zone of Teotecacinte and Cape Gracias a Dios
were under the control of the Nicaraguan authorities at that time.
The parties agreed to the immediate withdrawalof Nicaragua from
the territory that according to the Award belonged to Honduras
- more than eight thousand square kilometres - except for the
zone of Teotecacinte where it would proceed in conformity with
the results of the demarcation of the said zone.
established in application of the said Basis and the Reports of the Committee of
Engineers upon which the la Mixed Commission based its determinations. The
O.A.S. assured an English translation of the original Spanish text (Report of the
/nter-American Peace Committee to the Council of the O.A.S. on the termination
of the activities of the Honduras-Nicaragua Mixed Commission). This Report can
be seen in Annex 1.
12 Original Spanish text: "fijar sobre el terreno, en los términosdel Laudo de
23 de diciembre de 1906, la lfnea divisoria desde el encuentro del rio Bodega o
Poteca con el rio Guineo hasta el Portillo de Teotecacinte"; and "reconocer el punto
de partida del limite natw·alentre ambos pafses en la desembocadura del rio Coco".
See Basis of Arrangement, paragrah 4.b, at Appendix 1 of the Report of the lnter
American Peace Committee, pp. 13-14. Annex
29 27. By May 1961, Nicaragua bad not only withdrawn from
the territories attributed to Honduras by the Award which did not
require a demarcation because there were naturallimits, but bad
also received a great part of the population - more than four
thousand persons - that did not want to stay under Honduran
sovereignty.
28. A demarcation by agreement was achieved in the area
ofTeotecacinte, at the Sitio deTeotecacinte up to the point named
Murupuxf. The problems of demarcation up to the Portillo were
resolved by a decision of the Chairman of theMixed Commission,
Ambassador Vicente Sanchez Gavito, of August 5, 1961. The
placement of boundary markers began on September of that year.
On December 17,the Mixed Commission verified that the bound
ary markers bad been erected, and that they were placed exactly
13
on the line described •
29. The starting point of the natural boundary between Nica
ragua and Honduras at the mouth of the Coco River was deter
mined by the Mixed Commission on December 15, 1962, "at the
mouthof the main branch of theCoco River, indicated on the map
prepared by the Committee of Engineers as "Brazo del Este", a
point situated at fourteen degrees, fifty-nine minutes and eight
tenths of minute (14° 59.8') North Latitude and eighty-three
degrees, eight minutes and nine tenths of minute (83°08.9') West
14
Longitude, Greenwich meridian" •
1· See Minute of December 19, 1962, at Appendix 5 of the Report of the Inter-
American Peace Cornmittee, pp. 32-33. Annex 1.
1· This translation corresponds faithfully to the original Spanish text of the
Minutes of the 12th meeting of the Honduras-Nicaragua Mixed Commission. Accord
ing to the original text (paragraph 4) the Commission verified that the starting point
of the natural boundary between Honduras and Nicaragua was at: "la desembocadura
del brazo principal del rfo Coco, sefialadol piano de la Comisi6n de Ingenieros
con el nombre de "Brazo del Este", punto que esta situado a los catorce grados
cincuenta y nueve minutos y ocho décimos de minuto (14" 59.8') Latitud Norte y
ochenta y tres grados ocho minutos y nueve décimosde minuto3"08.9') Longitud
Oeste del meridiano de Greenwich" (see Appendix 4 of the Informe de la Comision
lnteramericana de Paz, p. 31). The content of this paragraph was subsequently
reproduced by the Informe itself (see section II, pp. 6-7). The English version of
the original Spanish text of the Informe and its appendices translated erroneously
the expressionsocho décimosde minuto" and "nueve décimosde minuto" for "eight
30 30. In exercising the powers mentioned above the Mixed
Commission availed itself of the Committee of Engineers already
created by the two Govemments.
31. On January 23, 1963,theChairman ofthelnter-American
Peace Committee notified the completion of its mission to the
representatives of Nicaragua and Honduras at the OAS Council.
In this way, as it is recorded in the final considerations (section
IV) of the Report of the Inter-American Peace Committee to the
Council of the O.A.S., of July 16, 1963, the Mixed Commission
"fully complied with the duties with which it was charged under
the Basis of Arrangement approved by the two govemments, and
the controversy that existed between the neighbouring republics
of Honduras and Nicaragua conceming the Arbitral Award pro
nounced by the King of Spain on December 23, 1906, was defini
15
tively settled" •
32. Once thelandboundarybetween NicaraguaandHonduras
wasestablished, otherissues remained pending between the Parties
in the Caribbean. One of those issues was the delimitation of the
respective maritime areas, which is the object of the present Ap
plication of Nicaragua to the Court.
seconds" and "nine seconds", transfonning the 14° 59.8' North Latitude and 83°
08.9'West Longitude in 14°59'08" North Latitude and 83°08' 09" West Longitude.
15 this point, see Chapter VII of this Memorial.
· See Report of the lnter-American Peace Committepp. 8-9, Annex1.
31 IV : THE RELATIONS BETWEEN
NICARAGUA AND HONDURAS (1963-1979)
A. Introduction
1. The long-lasting land boundary dispute produced con
siderable damage to the relations of both countries and their
peoples. The authorities of both States tried to avoid new boundary
conflicts during the years following the implementation of the
Award of 1906. To this effect they abstained from expressing
precisely the limits of their sovereignty and jurisdictional claims
over the maritime areas.
2. Besides, it is proper to observe that in this period
Honduras had serious reasons for seeking good relations with
Nicaragua, not only because of the affinity of their political
regimes (General L6pez Arellano arrived at the Presidency of
Honduras through a coup d'étaton October 3, 1963) and the
empathy of their arrned forces, but particularly because of the
imperative need of Honduras to count on good relations with
Nicaragua at a moment when there was the possibility of a con
frontation between Honduras and her other neighbour, El Salvador.
This threat developed into a full-scale war between them in 1969
and it was only in 1980 that a General Treaty of Peace was signed
16
which eventually brought the parties to this Court. AU of this
contributed to the fact that this period witnessed perhaps the best
relationships between Honduras and Nicaragua in all of the XX:th
Century.
3. Throughout this period there was no reference to the
existence of amaritime boundary in the Caribbean. Nicaragua has
found no records in this period of the claim made by Honduras
in the 1980's that the boundary followed a parallel of latitude.
Apart from diplomatie correspondence, Nicaragua has checked
16
· Land Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
lntervening),dgement of Il September 199l.C.J. Reports 19p. 351. Pages
380-386 of the Judgment give a short history of the dispute.
33declarations of Honduran officiais in the appropriate international
fora where such claims could have been voiced and also in the
constitutions of Honduras that, since 1957, have indicated its
territorial claims in great detail.
B. The Third United Nations Conference on the Law of the
Sea
4. The Third United Nations Conference on the Law of the
Sea took place during the last years of the period in review. The
subject of this Conference offered to Honduras and Nicaragua a
most suitable opportunity for expressing their positions regarding
the rules in force, their priorities and their maritime aspirations.
5. Honduras forexampie declaredthrough itsrepresentative,
Mr. Carias Zapata, that she attachedparticular importance to two
questions. The first was related to the waters of the Gulf of Fon
seca on the Pacifie Ocean, which she regarded as internai waters
subject to the sovereignty of each of the three coastal States in
their respective zones. The second question to which she attached
particuiar importance was the Department of Islas de la Bahia
in the Caribbean, which she regarded as an archipelago forming
part of her national territory (Plenary Sessions, 25thmeeting, 2
July 1974, UNCLOS, Official Documents, New York, 1975, Vol
1, pp. 81-82).
6. A few days later, another Honduran representative, Mr.
Herrera Câceres, returned again to the questions of the Gulf of
Fonseca and the Islas de la Bahia as Honduran "geographical
characteristics that would require special legal regulation". 11
1· Introducing the subject of the Islas de la Bahia Herrera Câceres said: "ln the
Atlantic Ocean, at the distance of Jess than twice the breadth of the territorial sea,
there was a fringef islands which constituted a single geographical whole, the
Department of Islas de la Bahia. Those islands had always been regarded as part
of the mainland of Honduras, which considered they formed a coastal archipelago
and maintained that the baseline of the territorial sea was, in that sector, the Iine
between the mainland and the corresponding points on those islands, and that
consequently the watersbetween those tines were internaiwaters" (see zooCommittee
Sessions, 3rd meeting, Il July 1974, vol. II, pp. 100-101).
34 7. The Honduran representative did not hesitate to start a
bilateral discussion with the representative of El Salvador when
the latter expressed his Government's different position over the
regime of the Gulf of Fonseca and the status of its waters (see
2nd Committee, sm meeting, 16 July 1974, vol. II, p. 108). The
Honduran representative insisted, on the other hand, on the particu
larities of the Islas de la Bahfa. 18 These were, he said, "geog
raphical features" worthy of consideration for the determination
of lateral boundaries with neighbouring States. As can be seen
in Figure A, in Volume III of maps, these Islands are located far
to the west of the Nicaragua-Honduras Boundary and the reference
to lateral delimitations has no relevance to the present case.
8. What is significant is that after a careful review of ali
the documents reproducing the comments made during that Con
ference, no reference has been found to the area presently in
dispute with Nicaragua that could parallel the "particular import
ance" the Honduran representatives attached to the Gulf of Fon
seca and the Islas de la Bahia.
C. The constitutions of Nicaragua and Honduras
9. The constitutions of the Parties during this period were
basically the same as in the late fifties. The Honduran Constitution
of 1965reiterated (Article 5) the territorial clauses of that of 1957
(Article 6), and basically added that the Arbitral Award issued
by the King of Spain on December 23, 1906 had been declared
valid by the Court on November 18, 1960.
18
· "Honduras's archipelago Islas de la Bahia was a Department of his country
with close geographical and economie dependence on the mainland. lts nearest island
was 20 miles from shore and the distance between the islands, not counting inter
mediate cays and shoals, did not exceed 16 miles. Honduras had taken into account
its geographical, political and economie unity with the mainland by giving it the
highest legal status; in the light of that fact, in the area where the archipelago was
located, the baseline of Honduras's tenitorial sea, which for most of the Atlantic
coast followed the low-water line, was drawn tojoin the mainland with the appropri
ate points on the islands.waters within those baselines were therefore internai
waters" (see 2"dCommittee, 36th meeting, 12 August 1974, vol. Il, pp. 263-264).
35 10. Nicaragua, for her part, maintained her traditional consti
tutional approach to this matter. The territorial clauses of the
Constitution of 1950, affirming in generic terms Nicaraguan sover
eignty over the islands on its continental shelf adjacent to its
coasts, were not changed when the Constitution was amended in
1962 and 1964. Later, Article 3 of the Constitution of 1974 pro
vided that: "The national territory extends, under the full sover
eignty of the State, between the Atlantic and Pacifie Oceans and
the Republics of Honduras and Costa Rica. It also comprises, in
the same condition, the islands, the cays, the promontories, the
adjacent banks, the submarine bases, the territorial sea and the
continental shelf, as weil as the air space, the stratosphere and
ali the submarine area which corresponds to it as sovereign, in
conformity with International Law".
11. A Geographical Index of Nicaragua (indice Geografico
de Nicaragua) prepared by an official institution, the National
Geographie Institute (lnstituto Geografico Nacional), and pub
lished on September, 1971, enumerated and described the "Rivers,
Lakes and Coasts" (Rfos, Lagos y Litorales) of Nicaragua.
12. The list included, among others, the Cays of Media Luna
with the following description (Instituto Geogrâfico Nacional,
indice Geografico de Nicaragua, Vol. I (Rfos, Lagos y Litorales),
Managua, 1971, p. 124):
"Group of cays and reefs located at sorne seventy km. to the
East of Cape Gracias a Dios on the submarine shelf. It com
prises the following islets: Logwood, Bobel, Savanna, South,
Half Rock, Alargado Reef and Cock Rock. It is located at the
latitude 15° 10' North and longitude 82° 35'."
D. Bilateral negotiations
13. The first bilateral negotiations on matters relating to the
maritime boundary in the Caribbean began in the first half of 1977
at the request of Nicaragua.
36 14. In order to put this initiative in its proper context it is
worth calling attention to a seriespublic declarations made by
Dr. Alejandro Montiel Argüello, at that time Foreign Minister
Nicaragua, between November 6, 1976, and March 8, 1977. These
declarations were recorded in a booklet that was edited in Mana
gua in 1977 by the Foreign Ministry with the title of Dialogos
con el Canciller (Dialogues with the MinisterF oreign Affairs ).
15. Thus, the dialogue of January 16, 1977, mentions a
communiqué of the Foreign Ministry announcing the beginning
of conversations with neighbouring countries in order to delimit
the maritime boundaries. Dr. Montiel Argüello explains that the
lack of previous diplomatie exchanges on this issue was due to
the fact that before: "Nobody had any interest in discussing a few
meters when the su~ject-m watsa trrritorial sea of 3 or 12
miles. However, with the development of the Law of the Sea there
are enormous national interests linked to delimitation". "The
delimitations", the Foreign Minister adds, "are carried out by joint
agreement between the parties, andif this does not exist, then by
one of the procedures of seulement of disputes indicated by Inter
national Law" (see Annex 2).
16. A few weeks later, on March 7, 1977, the Foreign Minis
ter responded to a report published in the Honduran newspaper
"La Tribuna", declaring that the existence of a maritime frontier
between Nicaragua and Honduras in the Caribbean is"absolutely
false".He said: "The maritime border between Nicaragua and
Honduras has not been determined. The Arbitral Award by the
King of Spain in 1906 only said that the land border begins at
the mouth of the River Coco, considering as such its main branch.
When this Award was implemented after the judgment of the
International Courtof Justice that declared it valid in 1960, a
controversy developed about which was the main branch of the
Coco. This was resolved on December 15th, 1962, by the
Honduras-Nicaragua Mixed Commission ..., but on the Caribbean
side there still exists no line dividing the territorial sea, the ex
clusive economie zone and the continental shelf Nicaragua and
Honduras" (see Annex 3).
37 17. Afterwards, asked about the principles which should be
followed by the Govemments of Nicaragua and Honduras in order
to draw such aline, Dr. Montiel Argüello invoked the then Single
Revised Text which was being discussed at the Third United
Nations Conference on the Law of the Sea, where it was provided
"that these questions are to be resolved by applying equitable
principles, using a median line...where possible" (Ibid}
18. It was Nicaragua that through its Note G-286 of May
11, 1977, proposed to Honduras "to initiate conversations leading
to the determination of the definitive marine and sub-marine
delimitation in the Atlantic and the Caribbean Sea zone" (see
Annex 4).
19. The proposai was unconditionally acceptedby Honduras.
Indeed, after acknowledging receipt of the Nicaraguan Note, the
Honduran Note N° 1025 of 20th of the same month, signed by
the Foreign Minister, Roberto Palma Galvez, indicates that his
Govemment "accepts with pleasure the opening of negotiations
and, in this respect, instructions to his Excellency Ambassador
JiménezCastro for the initiation of the preliminary stages of the
conversations as soon as he takes possession of his post, have
already been given" (see Annex 5).
20. Nevertheless, the revolution that toppled the Nicaraguan
Govemment in July 1979 did not leave any margin for the con
tinuation of a negotiation that had scarcely begun with the diplo
matie notes exchanged in May 1977. As will be explained in the
following Chapter, the relations after this event changed radically.
21. What is clear from these notes is that the position of the
Parties in relation to the maritime delimitation in the Caribbean
was totally open up to the revolutionary changes that occurred
in Nicaragua in 1979.
38 V : SITUATION SINCE 1980: THE HISTORY OF THE
DISPUTE ON THE DELIMITATION OF THE
MARITIME AREAS OF NICARAGUA AND
HONDURAS IN THE CARIBBEAN SEA
A. Introduction
1. The conflictof interestsbetween NicaraguaandHonduras
conceming the delimitation of the maritime areas in the Caribbean
was dormant until the late 70's. With the outcome of the Revolu
tion in Nicaragua that overthrew the Nicaraguan Govemment that
had been in place for several decades, the situation changed
dramatically. Gone were the relations of "compadrazgo" (buddy)
that had been the rule of the previous Govemments of both coun
tries. From that point intime- on 19 July 1979- until the elec
tion of a new Govemment in Nicaragua that was swom into office
- 25 April 1990 - Nicaragua was in constant conflict with her
immediate neighbours and in particular with Honduras.
2. lt was the regional tensions in the 1980's, involving the
Govemment of the United States of 19erica, which explains the
change of attitude of Honduras.
3. It is this context that explains the actions of Honduras
during the 1980's to seek to advance its territorial interests vis
à vis Nicaragua. These actions occurred on two fronts: the Gulf
of Fonseca on the Pacifie Ocean and the boundary in the Carib
bean Sea. The first situation- the Gulf of Fonseca- is not before
the Court. For this reason it is sufficient to recall that Honduras
in its negotiations with El Salvador on its territorial problems had
1· The regional situation can be appreciated in the documents brought by Nicara
gua to the International Courtstice in the cases against the United States and
Honduras. See the case conceminMilitary and Paramilitary Activities in and
against Nicaragua (Nicaragua. United States of America), Merits, Judgement,
/.C.J. Reports 19p. 14 and the case concerBorder and Transborder Armed
Actions (Nicaragua. Honduras).This last case was discontinued by Nicaragua
for the reasons explained below.
39consistently refused to include the situation of the legal regime
of Gulf of Fonseca, alleging that a third Party had to be involved,
namely Nicaragua (seeVolume II,Annex IV.1.44 of theHonduran
Memorial in the Land, Island and Maritime Frontier Dispute).
In December 1980 - a year and a half after the Nicaraguan
Revolution - Honduras had no further reticence in including the
situation of the Gulf of Fonseca- without taking into considera
tion Nicaragua's interests - as part of the provisions in the Peace
20
Treaty signed with El Salvador. The other action taken by
Honduras was the agreement signed with Colombia on 2 August
1986 by which Colombia reaffirmed the Honduran claim that its
boundary with Nicaragua followed a parallel of latitude and
Honduras for her part reaffirmed the Colombian claim against
Nicaragua that the boundary followed ameridian of longitude (see
Annex 6).
4. One of the first actions taken by the new Govemment
of Nicaragua was to enact the Continental Shelf and Adjacent Sea
Act (Ley sobre Platafor21 Continental y Mar Adyacente) on
December 19, 1979. "Until July 19 of this Year of Liberation",
proclaimed the preamble of the Act, "foreign intervention did not
permit the full exercise by the People of Nicaragua of its rights
over the Continental Shelf and Adjacent Sea-rights which corres
pond to the Nica22guan Nation by history, geography and Inter
national Law.
5. The Act did notcontain any provision on the delimitation
of these maritime spaces vis à vis the neighbouring States. How
ever, the Official Map of the Continental Shelf of Nicaragua of
1980, and the Official Map of the Republic of 1982, included a
box comprising Rosalinda, Serranilla and adjacent areas up to
2· See Chapter IV on the Peace Treaty and generally the proceedings before the
Chamber of the Court in which Nicaragua was allowed a limited interveasion
a "non party": Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), Judgement of Il September 1992, l.C.J. Reportsp.993,
351.
21. Decreta N. 205 (La Gaceta, December 20), in force since the date of publica-
tion.
2· Ibid. in the Preamble of the Act, 3rd paragraph.
40Parallel 17°, areas claimed as Nicaraguan in the diplomatie cor
respondence with Honduras.
6. Honduras, on its side, promulgated a new Constitution
on January 11, 1982, which introduced an extremely long Article
10 with the most radical territorial claims. The list of islands, cays
and banks that Honduras claims as appertaining to it in the Atlan
tic included, for the very first time, the Caysf Media Luna and
the banks Salmedina, Providencia, De Coral, Rosalinda and Serra
nilla.
7. On the ground, relations changed drastically between the
new Government of Nicaragua and the Honduran Government
and, particularly, the previously very friendly relations of its armed
forces. Naval incidents became numerous and recurrent. Most of
them involved the capture of fishing vessels of both sides within
the disputed area to the north of the parallel of latitude claimed
by Honduras since 1982. These incidents are registered in a copi
ous diplomatie correspondence.
8. In the next sections the following issues will be examined
(a) the elements of the controversy between Nicaragua and
Honduras relating to the delimitation of their maritime areas in
the Caribbean Sea; and (b)the failure of the bilateral negotiations
to settle the dispute by means of agreement.
B. The Existence of a Controversy Between Nicaragua and
Honduras on the Delimitation of Their Maritime Areas
in the Caribbean Sea
9. Both Nicaragua and Honduras concur on the need for
the application of International Law to the delimitation of their
maritime areas in the Caribbean Sea. Furthermore, both countries
are parties to the United Nations Convention on the Law of the
Sea, of December 10, 1982. Honduras deposited its instrument
of ratification on October 5, 1993. Nicaragua did so on May 3,
2000 (see Chapter VI of this Memorial).
41 10. Nevertheless theprinciples andmethods of delimitation
developed in international law have not been addressed because
Honduras has alleged since the eighties that there already exists
a dividing line in the Caribbean Sea tacitly agreed or consented
to by Nicaragua.
11. The official position of the Honduran Govemment, re
iterated for example at the time of the Application of Nicaragua
to the Court, is that the maritime boundary "has been delimited
and historically and customarily respected by both countries at
the Parallel 14° 59' 08"." (see Annex 7).Nicaragua denies that
any such boundary exists.
12. The dispute between Nicaragua and Honduras on the
delimitation of their maritime spaces in the Caribbean Sea began
on 21 March 1982 when Nicaraguan coastguards captured four
Honduran fishing vessels in the vicinity of the Nicaraguan Cays
Bobel and Media Luna, located about 40 miles from the
Nicaraguan coast and approximately sixteen miles to the North
of Parallel 15°.
13. On March 23, the Honduran Foreign Ministry referred
to the capture two days before as a "flagrant violation of our
sovereignty" and, for the first time in the diplomatie correspond
ence with Nicaragua, identified Parallel15° as aline "traditionally
recognised by both countries" in the Atlantic Ocean.
14. The Foreign Minister of Nicaragua immediately and
emphatically rejected the Honduran claim in its Note of April14,
1982 (ACZ/gg. N. 124), which marked a systematic, continued
and unequivocal opposition to the new position adopted by
Honduras.
15. As regards the Honduran affirmation that Parallel 15°
is traditionally recognised by both countries as the dividing line
in the Atlantic Ocean, the Note of April 14 remarked that,
2· See Annex 8, Note N. 0031-DSS, of March 23, 1982.
42 "This affirmation, at the very least, surprises us since Nica
ragua has not recognised any maritime frontier with Honduras
in the Caribbean Sea, being undefined until today the maritime
boundary between Honduras and Nicaragua in the said sea"
"Nicaragua", the Note adds, "understands that in Honduras
there is a criterion that aspires to establish said Parallel as the
boundary line. At no time has Nicaragua recognised it as such
since that would imply an attempt against the territorial inte
grity and national sovereignty of Nicaragua. According to the
established rules of international law, territorial matters must
be necessarily re.solved in treaties validly celebrated and in
conformity with the internai dispositions of the contracting
States, not having effected to date, any agreement in this
regard. Therefore, Nicaragua rejects Your Excellency's af
firmation in the sense that it claims to establish Parallel 15
as the boundary line between our two countries in the Carib
bean Sea" (see Annex 9).
16. The Nicaraguan Foreign Ministry was of the opinion that
the establishment of the maritime boundaries between Nicaragua
and Honduras in the Caribbean, the only area awaiting delimita
tion24,should be the result of negotiations undertaken through
mixed commissions, under appropriate conditions to discuss such
a delicate question in a friendly and sincere manner, without any
kind of pressure. Therefore, taking into account the prevailing
political circumstances, which could produce the impression that
"these sudden and excessive territorial aspirations (of Honduras)
were destined to prepare the conditions for justifying a major
escalation of aggressions against Nicaragua", the Foreign Ministry,
"with the intention of preventing the elevation of these questions
to major levels of friction between our countries", proposed "that
discussions on these problems be postponed, in order to wait the
25
adequate moment to proceed with negotiations".
2· See also Notes of September 19, 1982(N. 112),April 19and 28, and November
6, 1983 (DAJ N. 056, 063 y 226) (Annexes 10, 11, 12 and 13).
25
· See Annexes 9, 14 and 15, the Note of April14, 1982 (ACZ/gg. N. 124) was
Jater recalled by other Notes: e.g., the Notesember 9, 1983 (DAJ N. 128)
and January 6, 1996 (N. 96007).
43 17. The Nicaraguan answer must have had sorne effect,
because afterwards Mr. Paz Barnica, theHonduran Foreign Minis
26
ter, who had not signed the Note of March 23 (N. 0031-DSS) ,
stated in Note N. 254-DSM, of May 3, 1982 27:
"1agree with Your Excellency when you affirm that the mari
time border between Honduras and Nicaragua has not been
legally delirnited. Despite this, it cannot be denied that there
exists, or at least that there used to exist, a traditionally
accepted line, which is that which corresponds to the Parallel
which crosses through the Cape Gracias a Dios. There is no
other way of explaining why it is only since a few rnonths
ago thatthere have occurred, with worrying frequency, border
incidents between our two countries".
18. However, as"this is not the appropriate moment at which
to open a discussion on maritime borders" and it was prudent to
avoid new points of controversy, Mr. Paz Barnica considered that
it was necessary:
"to adopt sorne sort of criterion, albeit informai and transi
tional, in order to prevent incidents...The ternporary estab
lishment of aline or zone rnight be considered which, without
prejudice to the rights that the two States rnight clairn in the
future, could serve as rnornentary indicator of their respective
areas of jurisdiction"
19. The Foreign Minister of Honduras hirnself raises doubts
as to the existence of a traditionalline, which in any case did not
have legal force, since he recognizes that the maritime border "has
not been legally delirnited" and proposes "the ternporary establish
ment of a line or zone...which...could serve as rnornentaryindicator
of their respective areas of jurisdiction".
2· The Honduran Note of March 23, 1982 (N. 0031-DSS) had been signed by
the Honduran Deputy Foreign Minister in his capacity as acting Minister of Foregin
Affairs (Ministro de Relaciones Exteriores por la Ley), Rodolfo Rosales Abella.
2· See Annex 78.
44 20. As stated in the Note of Reply of Nicaragua of Septem
ber 28, 1982 (SIR), "it is only possible to speak of temporary
establishment of a zone of jurisdiction if this zone does not pre
viously exist. In the other case the only possible thing is to ask
that the pre-existing line should be respected or that it should be
ratified but , but never to propose the establishment of a line that
28
would serve as a momentary indicator".
21. The increase of the border and transborder armed actions
and the complexity of the Central America crisis did not allow
the initiation of negotiations even upon this proposai, which was
limited to the possibility of agreeing on a merely provisional
29
dividing line.
22. A new incident occurred on September 18, 1982, when
a Nicaraguan and a Honduran patrol opened fire, accusing each
other of violation of territorial sovereignty. 30 The episode con
cluded with an Honduran Note N. DSS-502, of September 20,
1982, which clearly indicates the non-enforceable character which
the Honduran Foreign Ministry accorded to the parallel:
"The Govemment of Honduras has never denied that between
my country and the Republic of Nicaragua there does not
exist, in the Atlantic, a legally delimited frontier. However,
it is an undeniable fact that traditionally the two Govemments
have considered the parallel that passes through Cape Gracias
a Dios as the dividing line between the two States, so long
as a definitive delimitation is not arrived at. When speaking
of tradition and of Govemments 1refer to situations shaped
by the passage of time and by thejuridical entities which, over
the years, have represented our respective States".
28
· See Annex 16. This Note inspired the Note of August 29, 1995 (N. 950369),
Annex 17.
2· "Owing to reasons alien to the will of the Nicaraguan Government up to this
moment it has not been possible to establish with Honduras provisional jurisdictional
!ines in the Caribbeana". See Annex 10 the Note ofSeptember 19, 1982 (N. 112).
3· See Annexes 10 and 18, for the Honduran Note N. 2176-SD of September 18,
and the Nicaraguan Note SIR of September 19, 1982.
45The Honduran Foreign Minister adds:
"The current Govemment of Nicaragua, making use of its
sovereign rights, has decided to ignore this tacit agreement
that, for many years, has prevented unfortunate incidents, such
as that which now concems us and which negatively affects
the already fragile relations between our countries. It was
precisely in order to avoid reaching these extremes that this
Ministry stated that "the temporary establishment of a line
or zone might be considered which, without prejudice to the
rights that the two States might claim in the future, could
serve as a momentary indicator of their respective areas of
31
jurisdiction"''.
23. Honduras toughenedits approachin the Notesexchanged
subsequent!y with Nicaragua conceming new seizures of fishing
boats or new incidents between naval patrols North of Parallel
150 .32
24. The Notesof theNicaraguanForeignMinistryconcerning
these events are either protests in response to the capture of
Nicaraguan fishing ships by Honduran patrols North of Parallel
15°N, or responses to the Honduran protests conceming the seiz-
3
1. Sorne weeks before, on the occasion of the seizure of another Honduran boat
by a Nicaraguan patrol in the vicinityays of Media Luna, the Honduran Foreign
Ministry lirnited itself to request the liberation "as soon as possible" of the crew
and the boat captured, showing surprise because the incident had occurredess
than a week from having celebrated the meeting between the Naval Chiefs in the
Port of Corinto, one of the main objectives being precisely to convene measures
in order to avoid this type of incidents". See Annex 20, Note N. 1653, of July 16,
1982).
32· See, e.g., in the eighties, the Notes of April 15, 19 and 21, May 11, August
17 and October 17, 1983 (N. 228-DSM, 243-DSM, 245-DSM, 202-DA, 406-DA
and 479-DA), January 16and October 9, 1984 (EHN-006-85 and 552-DA), January
29 and April19, 1985 (053-DAand 162-DA)andFebruary 5,1989(018-CAYM-89);
and, in the last decade, the Notes of August 26 and 27, and October 26 and 27,
1992(205-DGCA, 218-DGCA, 362-DSM and 363-DSM), November 9 and 16,1994
(487-DSS and EHN-573/94), April 19 and December 18, 1995 (0-216-DSM and
SIR), January 3, 1996 (001-DSM), June 19, July 8 and September 18, 1998 (180-
DSM, 243-DSM and 393-DSM), March 19and November 30, 1999 (115-DSM and
EHN-301199). Annexes: 21, 22, 23, 24,25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
36, 37, 38, 39, 40, 41, 42, 43, 44 and 45.
46ure of Honduran fishing ships by Nicaraguan coastguards. These
responses may also be classified in two categories: first, Notes
which admit the location of the seizure North of Parallel 15°but
reject the Honduran protest because of the sovereign rights of
Nicaragua over the area concerned 33;and second, Notes that dis
sent from the account of facts and/or the location of the seizures,
below Parallel 15°,. but as a matter of principle reaffirm
34
Nicaraguan rights North of that Parallel.
25. BesidestheDiplomatieNotesstemmingfrom thecaptures
of fishing vessels, the Nicaraguan Foreign Ministry has always
reacted against the acts of the Honduran Government that could
be interpreted as steps in the direction of an affirmation of sover
eignty over the areas that appertain to Nicaragua. Such was the
case in relation with the successive stages in the formation of the
Treaty of Maritime: Delimitation finally celebrated between
Honduras and Colombia, or when both Central American Repub-
33
· See, in the eighties, Notes of September 28, 1982 (SIR), February 2 and July
5, 1985 (DAJ N. 014 and DAJ N. 022). In the nineties see Notes of November 4
and December 12, 1994 (MRFJ 94/05142, N. 940507 and N. 940508), April12 and
25, May 5, and December 20, 1995 (SIR, N. 950191, N. 950184 and N. 9505335),
January 6 and November 21, 1996 (N. 96007 and N. 960668), February 3 and
August 8, 1997 (N. 970030 and N. 9700501). Annexes: 16, 46, 47, 48, 49, 50, 51,
52, 53, 54, 15, 55, 56, 57) The Note N. 96007, of January 6, 1996, inter alia
declares, that the Nicaraguan Government "cannot permit the exploitation by third
Statesof its natural resources in its legitimate national maritime spaces where, fur
thermore, It has exercised its sovereignty, jurisdiction and rights with specifie and
categorical actions. This has beentablished", the Note adds, "in a variety of Notes
that at various times and circumstances were addressed by the Republic of Nicaragua
to the Republicof Honduras. These communiquéshave been reiterated and compre
hensive of the maritime spaces alluded to, including both Parallel 15° and to the
North of Parallel 15°". S(:e Annex 15.
34· See, e.g., in the eighties, Notes of April 19 and 28, August 30 and November
6, 1983 (DAIN. 056,DA.r N. 063,DAJ N. 137 yDAJN. 226), November 16,1984
(DAIN. 166), February 2 and 4and April29, 1985 (DAIN. 014, DAJ N. 016 y.DAJ
N. 084). Annexes: 11, 12,58, 13, 59, 46, 60, 61) The Note of April 19, 1983 (DAJ
N. 056) expresses: "Nicaragua cannot accept the considerations you (Honduras) state
in your Diplomatie Note (N. 228-DSM, of April 15) when you say that the Bobel
and Media Luna Cays are located in jurisdictional waters of Honduras". ln the
nineties, Notes of May 20, October 2 and 5, 1992 (N. 920119, N. 920275 and N.
920273), January 4, 1993 (N. 930101 y 930102), July 2 and September 22, 1998
(MRFJ98/00357 and MRFJ98/00533) and December 7, 1999 (MRFJ3620/99).
Annexes: 62, 63, 64, 65, 66, 67, 68 and 69.
47lies published their Official Maps, including cays and banks
claimed by both countries.
26. Thus, on the occasion of the signature of the Treaty on
Maritime Delimitation between Honduras and Colombia, Nicaragua
addressed a Note to the Honduran Foreign Minis, 5tstating
that: "the referred instrument pretends to divide between Honduras
and Colombia extensive zones that include insular territories,
adjacent seas and continental shelf that historically, geographically
and legally correspond to the sovereignty of Nicaragua".
27. Afterwards, before the ratification of this Treaty by
Honduras, Nicaragua reiterated her "deep concem" in face of a
treaty "which attempts to seriously injure the sovereign and juris
36
dictional rights of Nicaragua in the Caribbean Sea" , and her
"categorical rejection to daims according to which the maritime
boundary between Honduras and Nicaragua in the Caribbean Sea
is parallel 14° 59' 08"." 37
28. Finally, when Honduras decided to express its consent
to be bound by the treaty, Nicaragua reiterated her well-known
38
statements of rejection.
39
29. As regards the Maps, when Honduras protested the
inclusion in the Official Map of Nicaragua of "various banks and
cays...,including the Serranilla Cays", which are located in the area
geographically and historically identified as the "Nicaraguan Rise"
(Promontorio de Nicaragua), the Nicaraguan Foreign Minister
40
noted in his answer that the opinions expressed in the Honduran
Note "only represent the point of view of Honduras, and at ali
the time contradicted by the Republic of Nicaragua".
3· Note of September 8, 1986 (DAJ N. 080). Annex 70.
36
· See Annex 71 Note N. 910102, of July 9, 1991, last paragraph). See also Note
N. 930154, of June 21, 1993, Annex 72.
3· See Annexes: 65, 66, 73. Notes N. 930101 and 930102 of January 4, 1993,
and N. 930276, of June 25, 1993.
38
· See Notes MRE/DM/3578/12199,ofDecember 1,1999,and MRFIDM/3699/12/
99, of December 21, 1999. Annexes: 74 and 75.
3· Note N. 124-DSM, of April 7, 1994. Annex 76.
4· Note N. 940286, of April 14, 1994. Annex 77.
48 30. The Nicaraguan Note recalls that: "Nicaragua's position
in relation to these areas under her Sovereignty and Jurisdiction
North of Parallel 14°59' 08" has been expressed in innumerable
Notes, among which are found, to give only recent examples,
those dated on January 4, 1993, N° 930101 and 930102, and on
June 25 of the same year, under N°930276". Furthermore, "with
out prejudice of the rights that correspond to Nicaragua", the
Official Map of the Republic "clarifies most strictly and cate
gorically, that the maritime frontiers in the Caribbean Sea have
not been legally delimited", a fact that Honduras already had
acknowledged in Note N. 254-DSM, of May 3, 1982.
31. Nicaragua, for her part, reacted to the Honduran Official
Map, elaborated by the National Geographie Institute (Instituto
Geogrâfico Nacional), edition 1994.This Map included as Insular
Possessions of Honduras in the Caribbean Sea a series of cays,
banks andreefs, including among others the Arrecifes de laMedia
Luna, Arrecife Alargado, and Serranilla Cays, all of which apper
tain to Nicaragua and are located on the "Nicaraguan Rise".
32. While protesting and reiterating her total disagreement
with the inclusion in the Honduran Official Map of certain areas
located on the "Nicaraguan Rise" (Promontorio de Nicaragua)
which are subject to the sovereign rights of Nicaragua, Note N°
950282, of June 9, 1995,repeated that the Republic of Nicaragua
"has and exerts full sovereignty and jurisdiction along the entire
length of the Nicaraguan geography up to Parallel 17° Latitude
North". 41
33. In Note N. 930101, of January 4, 1993, the Foreign
Minister of Nicaragua judges "absolutely inadmissible and un
acceptable from all standpoints" the Honduran affirmation that
"the maritime borderline between Nicaragua and Honduras in the
Caribbean Sea is establishedin total compliance with International
Law on Parallel 14° 59' 08"." The Minister reiterates the "most
categorical rejection" of thatclaim, recalling that "on the contrary,
the areas under Nicaraguan sovereignty and jurisdiction in the
41 See Note W 950282, of June 9, 1995. Annex 79.
49Caribbean Sea have always historically extended to the North
beyond said Parallel". 42
34. These concepts are reproduced in Notes of June 25 of
the same year (N° 930276) 43 and of December 12, 1994 (N°
44
940507 and 940508).
35. Note No940507, of December 12, 1994, reaffirms that
"the areas under Nicaraguan sovereignty and jurisdiction in the
Caribbean Sea, geographically and historically have always ex
tended North of said Parallel (14° 59' 08"). There does not exist
any Treaty or Agreement of any type between Honduras and Nica
ragua establishing said Parallel as the maritime frontier between
both countries. Finally, Nicaragua has always executed jurisdic
tional acts in those maritime spaces, up to Parallel 17°.In the last
analysis, the Ministry of Foreign Affairs recalls that the Republic
of Honduras has recognized in relation to the Caribbean Sea that
the maritime frontier between our countries has not been legally
45
determined."
36. The Note of the Honduran Foreign Ministry N. 197-
SAM-95, of June 13, 1995, answering the Nicaraguan N. 940507,
of December 12, 1994, summarizes the reiterated assertion of
Honduras that Parallell4° 59' 08" N was the maritime boundary.
This Parallel -the Note says- "has been a border traditionally
respected by both our States". The Note adds, "this bilateral recog
nition is demonstrated beyond any doubt by documentary proofs
and effectivités". The Honduran Government rejects the
Nicaraguan assertion that the areas located to the North had been
under the sovereignty and jurisdiction of Nicaragua, "since
4
43. In similar terms, see Note 930102, of the sarne date. Annexes: 65 and 66.
· Annex 73. This Note was the answer ta the Honduran Note of June 4 (N. 295-
DSM). (See Annex 80).
44. Annexes: 49 and 50. These Notes were the answer ta the Honduran Notes of
November 9, 1994 (487-DSS and N. EHN 564/94). See Annex 36 and 81.
45
· See Annex 49. In similar terms, Notes N. 950184, of May 5, 1995, and MREI
95/03771, of August 23, 1995. See Annexes: 53 and 82.
50Honduras presently exercises effective control within those mari
46
time spaces".
37. The Honduran Note N° 197-SAM-95, of June 13, 1995,
was followed by the Note of the Nicaraguan Foreign Ministry N°
950369, of August 29, of the same year, which, once again,
repeats that there does not exist any agreement establishing Parai
lei 14°59' 08" as the maritime borderline between the two coun
tries, and reiterates that there "neither does exist or has ever
existed any 'de facto situation', or any 'traditional border"' on
that Parallel. "Nothing could be farther from the truth", the Note
continues: "The Republic of Honduras, on one occasion, proposed
to Nicaragua 'thetemporary establishment of a line or zone that,
without prejudice to the rights that in the future could be alleged
by both countries, could serve as a provisional indicator of their
respective jurisdictional spheres', which by logic supposes that
even to your own country 'said line' never existed and there can
be no proofs or facts supporting it". 47
38. As already mentioned, there are numerous Notes of the
Foreign Ministry of Nicaragua which have recalled the Paz Bar
nica Note, of May 3, 1982 (N. 254-DSM), in order to make clear
that there are no grounds for the daim of Honduras that Parallel
14°59' 08" constitutes48he maritime boundary with Nicaragua in
the Caribbean Sea. In a situation like this, the Honduran Gov
emment has done its best in recent years to substantially modify
the scope of the Paz Barnica Note under the pretext of its inter
pretation.
39. Thus, the Honduran Note N.197-SAM-95, of June 13,
1995, purports to offer an authentic interpretation of the Paz
4· (See Annexes: 83 and 49.)
4· (See Annex 17.)
48
· E.g., Notes of September 19 and 28, 1982 (N. SIR and SIR), November 6 and
9, 1983 (DAJ N. 226 and DAJ N. 228), September 8, 1986 (DAJ N. 080), January
4 and June 25, 1993 (N 930101 and 930102 and N. 930276), April14 and December
12, 1994 (N. 940286 and N. 940508), May 5, June 9, August 23 and 29, (N. 950184,
N. 950282, MRF195/03771, N. 950369). See Annexes: 10, 16, 13, 14,70, 65, 66,
73, 77,50, 53, 79, 82, 17 and 84.
51Bamica Note arguing that: "when this Secretariat of State said
that at the present time thereis no bilateral agreement as to the
definitionof the maritime boundary between Honduras and Nica
ragua, we did nothing more than to point out a de facto situation,
staments this, that in no way means to recognize any rights to
Nicaragua or any other neighbour State of Honduras in the Carib
bean Sea" (see Annex 83).
40. This interpretationwas reproducedin Note 226-SAM-95,
of July 11, 1995, and has been lately endorsed by the Official
Position of the Honduran Govemment circulated on December
8, 1999, regarding what it caUsthe "erroneous interpretation" of
the Nicaraguan Govemment.
41. According to this Official Position, "Nicaragua pretends
to project an oblique line North of parallel 15... this pretension
by Nicaragua was manifest as of 1980. Prior to that date, both
countries recognised parallel 15 as the customary line for our
delimitation in the Caribbean" (see Annex 7).
42. Nevertheless,whenin Note N. 254-DSM,ofMay 3, 1982
the Foreign Minister Paz Bamica recognized without qualification
that the maritime boundary had not been legally delimited; he did
not in any way say that the maritime dividing line had not been
established "by means of a treaty or ajudgment", but only by way
of custom. This rephrasing has been conceived by his successors
many years later. Mr. Paz was in fact only recognizing what his
predecessors had already acknowledged in 1977, when they
accepted Nicaragua's proposai to initiate conversations on fixing
a boundary in the Caribbean.
43. In this sense, the Nicaraguan Notes N. 930101 and
930102, of January 4, 1993, and N. 950369, of August 29, 1995,
after recalling that there is no treaty between Nicaragua and
Honduras establishing Parallel14° 59' 08" as the maritime bound
ary, rightly point out that "delimitations should be made by agree
ment between the parties and not unilaterally" (see Annexes: 65,
66 and 17).
52 44. Honduras is forced to maintain the position that Nica
ragua has recognized or traditionally consented to Parallel14° 59'
08" N as the maritime boundary because itrealizes that such claim
is incompatible with general international law.
C. The Failure of the Negotiations between Nicaragua and
Honduras
45. Once the Central American crisis became susceptible to
political solutions, Nicaragua and Honduras could agree on the
establishmentof a MaritimeAffairsMixedCommission (Comisi6n
Mixta de Asuntos Marftimos) as the institutional frame wherein
to discuss the problems of maritime delimitation. According to
the Joint Declaration of the Foreign Ministers of both countries,
made in Managua on September 5, 1990, the purpose of the Com
mission, consisting of the Ministers or their Representatives, was
"the prevention and solution of maritime problems between both
countries"(n° 1), emphasizing that it shouldexamine "as apriority,
border issues in the maritime areas of the Gulf of Fonseca and
the Atlantic coast, and the fisheries problems derived from the
above" (n° 2)(see Annex 84).
46. The Maritime Affairs Mixed Commission was actually
constituted on May 27, 1991 and celebrated its first meeting in
Tegucigalpa. PointIV of theAgenda was"Border Issues" ("Cuest
49
iones lim{trofes"). The Nicaraguan Delegation expressed "its
deep concem" about the Honduran-Colombian Treaty signed on
August 2nd, 1986, at that stage not yet ratified, considering that
"this Treaty seriously injures Nicaragua's sovereign rights in its
jurisdictional waters, islands, cays, banks and continental shelf
in the Caribbean Sea". The Honduran Delegation, for its part,
"made a general reservation conceming its maritime territorial
rights in the Caribbean Sea" and postponed the presentation of
49
· The other points of the agenda were: "Fisheries Cooperation" ("Cooperacion
Pesquera") (Il), "Conservation of Natural Resources" ("Conservacion de Recursos
Naturales") (III) andcurity Issues" ("Asuntos de Seguridad'') (V). Ali of them
were clearly inter-related Annex 85.
53"her legal arguments on this matter", without date, to a future sub
commission, which had to be set up.
47. The state visitof thePresidentofNicaragua, Mrs. Violeta
Barrios de Chamorro, to Honduras on September 18and 19, 1991,
had the intention, among other objectives, of verifying "the pro
gression of the Maritime Affairs Mixed Commission". 50 The
Meeting of the Presidents of the Commissions on Foreign Rela
tions of both National Assemblies convened at Tegucigalpa on
November 28 and 29 of the same year.The visit was also intended
to push the work of the Mixed Commission forward, within a
general framework of a relationship that should be directed
towards"the searchfor solutionsconsistent withthe Central Amer
ican integrationist ideals ...and not to adopt measures that in any
51
way damages the interests of both peoples". The general intent
of this Joint Declaration was that Nicaragua and Honduras would
not make agreements with non-Central American States that could
prejudice either Party. The specifie intention was that Honduras
would not ratify the maritime delimitation Treaty she had con
cluded with Colombia in August 1986. Nicaragua for her part
agreed to discontinue the case it had pending against Honduras
in the Court.
48. In spite of the good intentions, the second meeting of
the Maritime Affairs Mixed Commission did not take place until
August 5, 1992, in Managua. Conceming the "Border Issues",
the meeting was a repetition of the previous session. Honduras,
once again,postponed thecreation ofa Sub-Commission onLimits
to a later meeting "in order to study the border issue in an integral
fashion" (see Annex 88). By that time, Nicaragua had requested
the discontinuance of its case against Honduras and the Court had
already ordered, in accordance with Nicaragua's request, the
discontinuance of the Border and Transborder Armed Actions
case. Honduras was rid of an embarrassing case and Nicaragua
so. Joint Declaration of September 19, 1991, third paragraph. See Annex 86.
s1. See Joint Declaration of November 29, 1991, 1.3. Annex 87.
5· See Order of27 May 1992, l.C.J. Reports 1992, p. 222. According to the words
of the President of the Republic of Nicaragua, Mrs. Violeta Barrios de Chamorro:
"My Government established direct contact with the Presidents of Honduras, Rafael
54received the promise of good neighbourly relations based on the
apparent mutual wish for the future reunion of the Central Amer
ican States.
49. The Mixed Commission for Maritime Affairs did not
53
convene again , and on April 20, 1995, was merged, with the
Commission ofBoundary Cooperation (Comisi6n de Cooperaci6n
Fronteriza), in a new Binational Commission (Comisi6n Binacio
nal), set up in Managua on that date. During the meeting, both
parties highlighted "the importance of starting the negotiations
on maritime delimitation" 54, programming for its next meeting
theestablishment of theSub-Commission for "Issues of Delimita
tion in the Caribbean Sea and demarcation of areas already
delimited in the Gulf of Fonseca according to the 1900
55
Minutes"
50. According to the schedule, the Second Meeting of the
Binational Commission took place atTegucigalpa on June 15and
16, 1995, and the Subcommission was finally established. How
ever, during the time itsurvived, the Sub-Commission did not find
Leonardo Callejas and Carlos Roberto Reyna in order to find a peaceful solution
to existing disagreement or situations that might lead to regional conflict or prejudice
peacemaking or regional integration. In the same spirit and based on the mutual
understanding, my Govemment proceeded to withdraw the case "armed frontiers
and transfrontiersacts"against the Govemment of Honduras. At the same time
Honduras refrained from ratified a Treaty that infringed the rights of a Central
American neighbour such as Nicaragua. In this contexts both countries committed
themselves to start a discussions on the delimitation of the mutual maritime border,
and established to this end a bilateral commission" "Honduras debe honrar sus
compromisos con Nicaragua", La Prensa, Managua, December 1, 1999.See in Annex
53.
· The third meeting of the Maritime Affairs Mixed Commission was programmed
for July 7, 1993, but it was postponed. According to the Govemmentof Nicaragua
(Note N. 930155, of June 25, 1993), it was "it would be best to wait for sorne time"
for its celebration, so as to meet the conditions that "the Agreements reached during
the meeting to be favourable to Central America interests and the integrationist".
This happened just after the visitf the President of Honduras, Rafael Leonardo
Callejas, to the island of San Andréswhich involves a weil known claim by Nicara
gua against Colombia. Armex 90.
54
· See in Annex 91. Minutes of the Binational Commission, April 20, 1995,
penultimate paragraph.
55· Ibid. 2nd Resolution, B.
55the opportunity to tackle the"delimitation issues on the Caribbean
Sea". 56
51. The incident that occurred in the Caribbean Sea on De
cember 17, 1995, as a result of the seizure of several Honduran
fishing boats by Nicaraguan coastguards to the North of parallel
57
15°, led to an exchange of diplomatie notes and the meeting
of an Ad Hoc Commission 58 with the purpose of seeking " a
simple mechanism, a transitory agreement or a special regime in
59
order to avoid the arrest of fishermen from either country".
52. The Ad Hoc Commission met twice, first in Managua
on the 22 January 1996, and then in Tegucigalpa on 31 January.
These meetings did not produce any results and were eventually
discontinued.
53. In their first meeting, the delegations agreed to recom
mend to the Govemments "the establishment of a common fishing
zone" (see Annex 93, Minutes of Meeting of January 22, 1996
para. 2), which would have a provisional character. However, they
did notreach any agreement on its definition, notwithstanding the
reservation of the sovereign rights of each State added to every
proposai.
54. For Honduras, thecommon fishing zone shouldbe traced
"three nautical miles to the North and three nautical miles to the
South of Parallel 15° 00' 00" Latitude North and between the
meridians 83° 00' 00" and 82° 00' 00" Longitude West" (Ibid).
This was unacceptable to Nicaragua, because, as a matter of fact,
5
6. See Annex 92. The last meeting of the Subcommission, programmed for April
25, 1997, was suspended by with the consentf both parties short!y after it began.
57· See Honduran Notes of December 18, 1995 (SIR) and January 3, 1996 (N.
001-DSM), andNicaraguan Notes ofDecember20, 1995 (N. 9505335) andJanuary
6, 1996 (N. 96007). Annexes: 39, 40, 54 and 15.
58.
The constitution of this Ad Hoc Commission was the result of the talks held
between the Presidents of Nicaragua, Mrs. Violeta Barriosde Charnorro, and Hondu
ras,Mr. Carlos Roberto Reina, on January 14, 1996, on the occasion of the investi
tureof Mr. Alvaro Arzu as President of Guatemala.
59· See Annex 93 and 94 for the minutes of these two meetings of the Ad hoc
Commission.
56it supposed the implicit acceptance of Parallel15° as the dividing
line between the Parties.
55. Logically, Nicaragua was only prepared to establish a
common fishing zone within the limits of the disputed area, which
was "the area where the daims of both countries overlap, located
between the Parallels 15°00' 00" and 17° 00' OO""(Ibid).
56. No serious possibility of agreement existed because the
Honduran negotiators were constrained by the aU-inclusive and
detailed description of the territories claimed by Honduras in its
1982 Constitution (see para. 6 above).
57. Only twenty months after the failure of the Ad Hoc
Commission, a Memorandum of Understanding signed by the
Foreign Ministers of Nicaragua and Honduras at New York on
September 24, 1997, allowedfor a revival ofbilateral negotiations
on the boundary issues through the constitution of a new Mixed
Commission "in order to explore possible solutions to the situ
ations existing in the Gulf of Fonseca, the Pacifie Ocean and the
Caribbean Sea" (see Annex 95).
58. The "exploratory talks" agreed in the Memorandum of
September 24, 1997, were observed with "due confidentiality"
in Antigua (Guatemala), during the first two days of October, and
in San José(Costa Rica), on November 6 and 7, 1997.
59. The Mixed Commission was able to make sorneprogress
on the subject of the demarcation of the boundary in the Gulf of
Fonseca by means of buoys; however, it could not transform its
conversations into "a process of flexible and fluid negotiation,
which can lead to specifie proposais to the two Governments, as
soon as possible, as to immediate or eventual solutions to the
various problems identified". 60
60 See Annex 96. Minute of the First Meeting of the Honduras-Nicaragua Mixed
Commission (October 2, 1997), para. 3.
57 60. In the second meeting of the Mixed Commission there
was a suggestion of using the inaugural ceremony, which was
intended to place the first buoy in the Gulf of Fonseca, to
announce the agreement of both States "to arrive at an integral
solution to the territorial disputes in the Gulf of Fonseca, the
Pacifie Ocean and the Caribbean Sea, either by direct negotiation
or by any other means of pacifie settlement of disputes provided
by International Law, including recourse tothe International Court
61
of Justice".
61. Adhering to this recommendation, the Foreign Ministers
of Nicaragua and Honduras expressed in the Joint Declaration of
Potosi, of May 25, 1998, "the firm disposition...to arrive at an
integral solution to the existing territorial disputes in the rest of
the Gulf of Fonseca, in the Pacifie Ocean and, in the Caribbean
Sea" (see Annex 98). Nevertheless, there was no positive result.
62. The last phase of "negotiation" took place on November
28, 1999, when the President of the Republic of Nicaragua was
unexpectedly informed of the decision of the Honduran Govern
ment to ratify four days later the Treaty of August 2, 1986 on
Maritime Delimitationwith Colombia.The Presidentof Nicaragua,
Mr. Arnoldo Alemân Lacayo, and the Honduran President, Mr.
Carlos Roberto Flores Facussé,agreed to a meeting of their re
spective Foreign Ministers at Managua the day after. The visit,
however, was cancelled by Honduras.
63. It must be recognized that Nicaragua did not spare any
efforts, be they political, diplomatie orparliamentary, to dissuade
Honduras from theratificationof theTreaty on Maritime Delimita
tion withColombia.Nevertheless,Honduras'unexpectedinsistence
on going ahead with the ratificationmade further negotiations with
Nicaragua out of the question.
64. According tothepresentationmadeby theForeignMinis
ter of Honduras, Flores Bermudez, at the Permanent Council of
61 See Annex 97. Minute of the Second Meeting of the Honduras-Nicaragua Mixed
Commission (November 7, 1997), para. 3.
58the O.A.S. on December 6, 1999, Nicaragua was responsible for
not willing to discuss limits in the Caribbean Sea. The Honduran
Minister stated that, "on several occasions and, specially in 1997,
multiple approximations were made to convene or confirm our
limits, (with Nicaragua)... we received negative signs. The results
were fruitless, despite the fact that our sovereign rights North of
parallel15°, are customary, as well as historical and geographical.
Nicaragua", he added, "pretends to project an oblique line to the
North of parallel 15°, upto Parallel 17°,ignoring approximately
60,000 square kilometres of spaces legitimately Honduran, and
customarily recognized as such by Nicaragua" (see Annex 7).
65. From the speech of Foreign Minister Flores Bermudez
it can be inferred that the method of the bilateral negotiations was
indeed exhausted because of the systematic and continued refusai
of Nicaragua to surrender to the point of view of Honduras, ac
cording to which ail should be reduced to the formalization of
the so-called "traditional, historical and customary line along the
Parallel 15° N to the meridian 82° W". The efforts to open a
constructive process consisted of trying to convince Nicaragua
to yield unconditionally to the claim of Honduras, and all this
under the threat of ratifying the Treaty on Maritime Delimitation
with Colombia.
66. This Treat)• between Honduras and Colombia met the
most radical aspirations of the Parties in relation to Nicaragua
through their reciprocal recognition of each other's claims vis à
vis Nicaragua. The raison d'êtreof the Treaty is to take over and
share among themselves a substantial portion of the maritime
spaces appertaining to Nicaragua in the Caribbean Sea.
67. The intention behind the Colombia-Honduras Treaty has
been seen from the perspective of the benefits it brings to Colom
hia. Thus David Colson observes:
"lt is worth noting that occasionally a maritime boundary
agreement between two states will purposely (or perhaps not)
seek to affect the sovereignty claim of a third state. The 1977
Colombia-Costa Rica and 1986 Colombia-Honduras agree-
59 62
ments (neither of which is in force) and the 1976 Colom
hia-Panama agreement which is in force, are based upon the
extension of marine jurisdiction from Colombian islands in
the Caribbean, which are claimed by Nicaragua." (Colson,
D. The Legal Regime of Maritime Boundary Agreements, in
International Maritime Boundaries, edited by Chamey and
Alexander, Dordrecht, 1993, Vol. I, p. 66).
68. What is missing from the analysis is that in the present
case both Colombia and·Honduraswere mutually boosting their
claims to Nicaraguan maritime areas. Colombia recognized as
Honduran the areas to the North of Parallel 14°59' 08", with the
exception ofSerranillaBank,asymmetricallydivided toits benefit,
and Honduras recognized as Colombian the areas to the South
of said Parallel from the Meridian 82° W towards the east, see
Figure IX for an illustration of the treaty lines.
69. The Treaty has no legal validityand itsprovisions cannot
affect the rights of Nicaragua. Nicaragua has protested at the
successive stages of the formation of the Treaty. Notes of protest
were made at the moment of the signature of the Treaty 63;they
were reiterated on the occasion of a visit of the President of
Honduras, Rafael Leonardo Callejas, to the island of San
64
Andrés ; then during the proceedings involving ratification of
6· The Colombia-Honduran Treaty is presently in force for the Parties. The
Colombia-Costa Rica Treaty has not entered into force since its signature nearly
25 years ago.
61 The protest Note stated: "The referred instrument pretends to divide between
Honduras and Colombia extensive zones that include insular territories, adjacent
seas and continental shelf that historically, geographically and legally correspond
to the sovereignty of Nicaragua". The Note adds: "On the basis of the inalienable
rights of Nicaragua to protect and defend the territorial integrity of the nation, the
Republic of Nicaraguarejectsthe treaty subscribedbetween Honduras and Colombia
on August 2, 1986; it manifests that it does not recognise nor admits any effect
whatsoever of the referred instrument, and reaffirms her sovereign rights over the
cays, sandbars and islands that constitute the maritime and insular territory
Nicaragua to which the treaty in questions pretends to apply". See Note DAJ N.
080, of September 8, 1986 in Annex 70.
64. See Note N. 930154, of June 21, 1993 (Annex 72), and, before, Note N.
910102, of July 9, 1991, (Annex 71) last paragraph. See also the Resolution of the
National Assembly of the Republic of Nicaragua, of June 22, 1993. (Annex 99)
60the Treaty; and, finally, at the time of its entry into force and
international registration. 65
70. This sequence of diplomatie notes reveals:
The persistent opposition of Nicaragua to the Honduran claim to
a "traditional" or "customary" boundary line in the Caribbean;
and,
The impossibility of reaching a delimitation through direct nego
tiations. All negotiations had failed in the past because of the
unacceptable claims of Honduras. Future negotiations became
impossible once Honduras took the step of ratifying the Treaty
with Colombia in which the parties had agreed on a sort of shared
unilateralism at theexpense of thesovereignrights andjurisdiction
of Nicaragua.
The Resolution reproved the decision of the Honduran President, Rafael Leonardo
Callejas, to meet the President of Colombia, CésarGaviria, in the island of San
Andréson June 21; besides, the Resolution recalls that the National Assembly of
Nicaragua by the Act of March 31, 1992, had made possible the discontinuance
of the case against Honduras submitted to the International Court of Justice by
Nicaragua (Border and Transborder Armed Actions); finally, the Resolution declares
that it will expect from the Congress of the Republic of Honduras "reciprocity from
the Congressof the Republic of Honduras in the sense of no ratified any agreement
65at might injure the sovereignty of Nicaragua regarding her territorial rights".
· See Notes MRF/DM/3578/12/99,ofDecember 1,1999,and MRF/DM/3699/12/
99, of December 21, 1999. Annexes: 74 and 75.
61 VI : THE APPLICABLE LAW
1. The object of the present chapter is to indicate briefly
the principles which, according to the Repub1icof Nicaragua, are
applicable to the delimitation between Honduras and Nicaragua
in the Caribbean Sea.
2. Nicaragua will first examine the legal instruments rel
evant to this delimitation, that is mainly the 1982 United Nations
Convention on the Law of the Sea (Section A), before showing
briefly that, in any case, the relevant legal principles applicable
in the specifie circumstances of the case reflect or have obtained
a customary "status" (Section B). lt will then indicate, in the
succeeding chapters of this Memorial, the manner in which it
considers that these principles must be applied to the factsf the
present case.
A. The Relevant Legal Instruments the United Nations
Convention on the Law of the Sea
3. "The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shaH
apply" in the first place "(a) international conventions, whether
general or particular, establishing rules expressly recognized by
the contesting State"(l.C.J.,Statute, Article 38.1.). In the present
case, the maritime boundary between the two States remains
undetermined and bas not been the subject of any agreement
between them; nevertheless, a number of bilateral agreements
between the Parties are of sorne relevance to the present dispute;
these instruments are mentioned, as necessary, in the previous or
succeeding chapters of this Memorial. Conversely, the bilateral
treaties concluded between one Party and a third State, including
the Colombia/Honduras Treaty of 2 August 1986, are res inter
alios acta and should not to be taken into consideration by the
Court in resolving the dispute before it. This is not the case,
however, for the multilateral treaties to which Nicaragua and
63Honduras have become Parties, especially the United Nations
Convention of the Law of the Sea of 10 December 1982.
4. As regards the relevantmultilateralconventions concem
ing maritime delimitation, neither Nicaragua nor Honduras has
ratified any of the four 1958 Geneva Conventions on the Law of
the Sea. Thus, these Conventions are "not, as such, applicable to
the delimitations involved in the present proceedings" (North Sea
Continental ShelfCases, l.C.J. Reports 1969, p. 28, para. 37). This
does not mean that the principles stated in these Conventions are
lacking in ail pertinence; but they cannot be applied or taken into
consideration by the Court unless such use "is, or must now be
regarded as involving, a rule that is part of the corpus of general
international law; and, like any other rules ofgeneral orcustomary
international law, is binding on the [Parties] automatically and
independently of any specifie assent, direct or indirect, given"
(Ibid) by them. This may be the case either because such a rule
would have "an apriori character of so to speakjuristic inevitabil
ity" (Ibid, p. 29, para. 37), or because the Geneva Conventions
would have embodied or crystallizedpre-existingoremergentrules
66
of customary law , or even because, by its subsequent effect,
they have been constitutive of such rules (Ibid, p. 45 para. 81).
5. Nicaragua will examine whether such is the case in
section B below, but it is clear that, as such, the Geneva Conven
tions of 1958 are not applicable to relations between the Parties.
6. The situation isdifferent for the United Nations Conven
tion on the Law of the Sea signed at Montego Bay on December
10, 1982, which entered into force on November 16, 1994 and
which both Parties have ratified: Honduras on October 5, 1993 67
and Nicaragua on May 3, 2000; the former without any declara
tion, while the latter, which had accompanied its signature of 9
December 1984 by declarations made in accordance with Articles
66. Cf.Ibid.p.41,para.69,andprecedingparagraphson whichtheseconclusions
are based.
6· See ST/LEG/SER.E/17, Multilateral Treaties Deposited with the Secretary
General,Status as at 30 April 1999,United Nations,SaW.sE. 99.V.5,Chapter
XXI.6, p. 755.
64310, 287 and 298 (Ibid, p. 771), specified, at the time of deposit
of its instrument of ratification:
"In accordance with article 310 of the United Nations Conven
tion on the Law of the Sea, the Government of Nicaragua
hereby declares:
"1. That it does not consider itself bound by any of the de
clarations or statements, however phrased or named, made
by other States when signing, accepting, ratifying or acceding
to the Convention and that it reserves the right to state its
position on any of those declarations or statements at any
time.
"2. That ratification of the Convention does not imply recogni
tion or acceptance of any territorial claim made by a State
party to the Convention, nor automatic recognition of any land
or sea border.
"ln accordance with article 287, paragraph 1, of the Conven
tion, Nicaragua hereby declares that it accepts only recourse
to the International Court of Justice as a means for the seule
ment of disputes concerning the interpretation or application
of the Convention.
"Nicaragua hereby declares that it accepts only recourse to
the International Court of Justice as ameans for the settlement
of the categories of disputes set forth in subparagraphs (a),
(b) and (c) of paragraph 1 of article 298 of the Convention.
''TheConvention will enter into force for Nicaragua on 2 June
2000 in accordance with its article 308 (2) which reads as
follows:
"For each State ratifying or acceding to this Convention after
the deposit of the sixtieth instrument of ratification or acces
sion, the Convention shaHenter into force on the thirtieth day
65 following the deposit of its instrument ofratification or acces
68
sion, subject to paragraph 1 ".
7. Given that the United Nations Convention on the Law
of the Sea came into force, with regard to Nicaragua, after the
Application was filed, the question arises whether the Court in
the present case can apply the said treaty. In the opinion of Nica
ragua, this question must be answered in the affirmative.
8. "[G]iven the lack of formalism characteristic of the
Court's procedure" (Shabtaï Rosenne, The Law and Practice of
the International Court, vol. II, Jurisdiction, Nijhoff, The Hague,
Boston, London, p. 661; see also pp. 522-523), on numerous
occasions the Court has held that it could hear a case even though
the treaty conferring jurisdiction on it in accordance with Article
36 of the Statute had only come into force after the case was
brought before the Court. Thus, in the case conceming the Ma
vrommatis Palestine Concessions, the P.C./.J. said:
"The Court, whose jurisdiction is international, is not bound
to attach to matters of form the same degree of importance
which they might possess in municipal law. Even, therefore,
if the application were premature because the Treaty of Lau
sanne had not yet been ratified, this circumstance would now
be covered by the subsequent deposit of the necessary ratifica
tions".69(P.C.l.J., Series A, N° 2, p. 34)
9. These considerationsconcerningtreatiesconferringjuris
diction have even more force when applied to those goveming
the substantive issues in question. Indeed, Nicaragua could have
withdrawn its Application in order to file, immediately, another
6· http://www.un.org/Deptsnos; 10November 2000; refers to depositary notifica
tionC.N.302.2000. TREATIES-1 of 22 May 2000 (Nicaragua: Consent to be bound
following the ratification the Convention).
6· See also I.C.J., Judgment of 26 November 1984, Case concerning Military
and Paramilitary Activities in and against Nicaragua (Jurisdiction of the Coun and
Admissibilityofthe Request), /.C.J. Repons 1984, pp. 428-429, para. 83 or Judgment
of Il July 1996, Case conceming Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, l.C.J. Repons 1996, p. 613, p. 26.
66application having the same subject, to which the 1982 Convention
would clearly be applicable. In addition, the two States party to
the dispute have, by the free expression of their consent, demon
strated their common will to be bound by the Convention; there
would be little sense in refusing to apply a treaty to which they
have both adhered.
10. In his opinion appended to the Award of 31 July 1989
in the case conceming the Guinea-Bissau/Senegal dispute, Judge
Bedjaoui wrote:
"Quant à la Convention de Montego Bay du 10 décembre
1982 sur le droit de la mer, la Guinée-Bissau et le Sénégal
l'ont ratifiéetous deux; mais elle n'est pas encore entréeen
vigueur. Il est clair cependant que cette particularité ne les
fait nullement échapperà l'application de cette Convention.
Celle-ci doit s'imposer à eux non pas en tant qu'ensemble de
règles conventionnelles internationales (puisque non encore
entréesen vigueur), mais en tant qu'ensemble de règlesaccep
téespar eux.( ... ) [L]'opérationde ratification de la Conven
tion par chacune des deux Parties signifie disponibilité de
chaque partie à l'appliquer à toute autre qui accepterait d'en
faire autant. La ratification représenteun engagement définitif
et final qui, en toute bonne foi, impose à chacun des deux
États de se considérer comme obligatoirement liéà 1'égard
70
de l'autre par la Convention".
7· Reproduced in Guinea-Bissau's Application before the I.C.J., 23 August 1989,
Annex, pp. 146-147, para.0. The English text reads as follows:
"As for the Montego Bay Convention of 10 December 1982 on the Law of the Sea,
it has been ratified by both Guinea Bissau and Senegal but it has not yet entered
in force. It is, however, clear this fact does not exclude the application to them of
that Convention. It is effective for them, not as a body of international treaty rules
(since these have not yet entered into force), but as a body of rules accepted by
them. (... ) [T]he act of ratification of the Convention by each of the two Parties
means that each of them is prepared to apply it to any other party which accepts
to do the sarne. Ratification represents a final and definitive commitment which,
in ali good faith, makes it incumbent upon the two Statesnsider themselves
bound with respect to each other by the Convention".ernationaLaw Reports,
p. 86 at para. 80)
67 11. Mutatis mutandis, this same reasoning applies in the
present case. And this consideration is alithe more persuasive that,
in this case, the Convention is in force and now binds both Parties.
12. Finally, as the Court reiterated in a recent case:
"it has become an established practice for States submitting
an application to the Court to reserve the right to present
additional facts and legal considerations. The limit of the
freedom to present such facts and considerations is 'that the
result is not to transform the dispute brought before the Court
by the application into another dispute which is different in
character' (Military and Paramilitary Activities inand against
Nicaragua (Nicaragua v. United States of America), Juris
diction and Admissibility, Judgment, l.C.J. Reports 1984, p.
427, para. 80)".71 (Case concerning the Land and Maritime
Boundary between CameroonandNigeria (Preliminary Objec
tions), l.C.J. Reports 1998, pp. 318-319, para. 99- emphasis
added)
13. Indeed, in the present case, on the one band, Nicaragua
has expressly reserved the right to supplement or amend its Appli
cation (paragraph 8), and, on the other band, the application of
the Convention on the Law of the Sea clearly would not transform
the dispute brought before the Court into another dispute, different
in character. Rather, it removes uncertainty as to the law applic
able to resolution of the dispute, in accordance with the will
expressed by the two States party to the case.
14. In any case, in practice, this pointis of limited import
ance since, as Nicaragua will establish hereinafter (see below
section B ), the principles laid down by the 1982 Convention in
cases of maritime delimitation between States with opposite or
adjacent coastlines have now acquired customary value and form
part of general international law. In such a case, "customary inter-
71. See also Request for Interpretation of the Judgment of Il June 1998 in the
Case conceming the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections, l.C.J. Reports 1999, p. 38, para.
15.
68national law continues to exist alongside treaty law" (Case con
ceming Military and Paramilitary Activities in and against Nica
ragua (Merits), l.C.J. Reports 1986, p. 94, para. 176) and, as the
two bodies of rules have the same content, their application leads
to the same result.
B. The Applicable Principles of General International
Law
15. As Professor Prosper Weil put it: "lorsqu'on parle du
droit de la délimitationmaritime, c'est le droit coutumier que l'on
évoque au premier chef'. 73 But customary rules, as expressed
by the International Court and sorne arbitral tribunals, entirely
coïncide with conventionallaw, which they clarify and comple
ment.
16. lt cannot be denied that, for determining these customary
rules, "the 1982 Convention is of major importance, having been
adoptedby an overwhelming majority of States" (Case conceming
the Continental Shelf (Libyan Arab Jamahiriya!Malta), 1.C.J. Re
ports 1985, p. 30, para. 27). And, as noted in an important recent
arbitral award in the case between Eritrea and Yemen, in this
matter,
"many of the relevant elements of customary law are incor
porated in theprovisions of the Convention" (Case conceming
the Continental Shelf (Libyan Arab Jamahiriya!Malta), 1.C.J.
Reports 1985, p. 30, para. 27)
17. This is certainly the case for the provisions of the 1982
Convention on the Law of the Sea relating to the delimitation of
72· See also, Judgment of 26 November 1984, Case conceming Military and
Paramilitary Activities in and against Nicaragua (Jurisdiction of the Court and
73missibilityf the Request), /.C.J. Reports 19pp. 424-425, para. 73.
· (Ledroit de la délimitationmaritimPedone, Paris, 1988, p. 12).
The English version reads as follow: "the law of maritime delimitation usually means
the customarylaw." (The law of maritime delimitation- RejlectioCambridge,
1989, p. 7).
69maritime areas between States with opposite or adjacent coasts,
which are the only provisions directly relevant in the present case.
18. They consist of Article 15("Delimitation of the territorial
sea between States with opposite or adjacent coasts"), as far as
the territorial sea is concemed, and Articles 74 and 83 regarding
the sector beyond the territorial sea, these two provisions being
drafted in a similar way. These two sets of provisions, which will
be commented upon in more detail in Chapters VIII and X below,
deserve a full quotation:
"Article 15
"Delimitation of the territorial sea between States with op
posite or adjacent coasts
"Where the coasts of two States are opposite or adjacent to
each other, neither of the two States is entitled, failing agree
ment between them to the contrary, to extend its territorial
sea beyond the median line every point of which is equidistant
from the nearest points on the baselines from which the
breadth of the territorial seas of each of the two States is
measured. The above provision does not apply, however,
where it is necessary by reason of historie title or other special
circumstances to delimit the territorial seas of the two States
in a way which is at variance therewith".
"Article [74] [83]
"Delimitation of the [exclusive economie zone] [continental
shelf] between States with opposite or adjacent coasts
"1. The delimitation of the [exclusive economie zone] [conti
nental shelf] between States with opposite or adjacent coasts
shaH be effected by agreement on the basis of international
law, as referred to in Article 38 of the Statute of the Inter
national Court of Justice, in order to achieve an equitable
solution.
70 "2. Ifno agreement can be reached within a reasonable period
of time, the States concemed shaH resort to the procedures
provided for in Part XV.
"3. Pending agreement as provided for in paragraph 1, the
Statesconcerned, in aspiritof understanding andco-operation,
shaHmake every effort toenter into provisional arrangements
of a practical nature and, during this transitional period, not
to jeopardize or hamper the reaching of the final agreement.
Such arrangements shaH be without prejudice of the final
delimitation.
"4. Where there is an agreement in force between the States
concemed, questionsrelating to thedelimitationof the [exclus
ive economie zone] [continental shelf] shall be determined
in accordance with the provisions of that agreement".
19. Not only must both sets of provisions be regarded as
reflecting customary rules, but they also converge in a single
general principle of law: the delimitation, whether it relates to the
territorial sea or to maritime areas beyond the territorial sea,
whether it is effected by an agreement or decided by the Judge,
must achieve an equitable solution.
20. As the Chamber of the Court noted in the case concern
ing Delimitation of the Maritime Boundary in the Gulf of Maine
Area:
"these provisions [Articles 74, para. 1, and 83, para. 1, of the
Convention on the Law of the Sea] even if in sorne respects
theybear the mark of the compromise surrounding their adop
tion, may nevertheless be regarded as consonant at present
74
with general international law on the question." (l.C.J. Re
ports 1984, p. 294, para. 94).
7· See also Arbitral Award of 14 February 1985, Délimitation de la frontière
maritime Guinée/GuinéeBissau, RGDIP 1985,p. 504, para. 43 and p. 520, para.
87.
71And, as this same Chamber added, "in every maritime delimita
tion", general international law prescribes that, whether by agree
ment or by recourse to a third party:
"delimitation is to be effected by the application of equitable
criteria and by the use of practical methods capable of ensur
ing, with regard to the geographie configuration of the area
75
and other relevant circumstances, an equitable result."
(Ibid.,pp. 299-300, para. 112).
21. This is "the fundamental norm of customary international
law governing maritime delimitation" (l.C.J. Reports 1984, p. 300,
76
para. 113).
22. Similarly, in the case concerning Maritime Delimitation
in the Area Between Greenland and Jan Mayen, the International
Court recalled that:
"That statement of an 'equitable solution' [in Article 74, para.
1, and Article 83, para. 1] as the aim of any delimitation
process reflects the requirements of customary law as regards
the delimitation both of the continental shelf and of the exclus
ive economie zone" (Judgment of 14June 1993, I.C.J. Reports
1993, p. 59, para. 48).
23. And, as Nicaragua will show in more detail in Chapter
X below, the equidistance-special circumstances rules embodied
in Article 15 of the 1982 Law of the Sea Convention, is also "to
be regarded as expressing a general norm based on equitable
7· See also: I.C.J., Judgment of 24 February 1982, Continental Shelf case (Tunisial
Libyan Arab Jamahiriya), /.C.J. Reports 1982, p.49, para. 50 or Judgment of 3 June
1985, Continental Shelf case (Libyan Arab Jamahiriya/Malta), /.C.J. Reports, 1985,
76.30-31, para. 28.
· See also the Arbitral Award of 30 June 1977 in the case concerning the Conti
nentalShelf between France and the United Kingdom, RIAA, Vol. XVIII, p. 57,
para. 97 or Arbitral Award of 10 June 1992, case concerning the Delimitation be
tween Canada and the French Republic, /LM 1992, p. 1136, para. 38.
72principles" 77, the purpose of which is to achieve an equitable
solution.
24. Thus, in ali sectors of delimitation,
"lt is ... the result which is predominant; the principles are
subordinate to the goal. The equitableness of a principle must
be assessed in the light of its usefulness for the purpose of
arriving at an equitable result. It is not every such principle
which is in itself equitable; it may acquire this quality by
reference to the equitableness of the solution. The principles
to be indicated by the Court have to be selected according
to their appropriateness for reaching an equitable result" (Case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamah
iriya), I.C.J. Reports 1982, p. 59, para. 70).
"lt is clear that what is reasonable and equitable in any given
case must depend on its particular circumstances. There can
be no doubt that it is virtually impossible to achieve an equit
able solution in any delimitation without taking into account
the particular relevant circumstances of the area" (Ibid., p.
60, para. 72). 78
25. In other words, it appears:
"that each specifie case is, in the final analysis, different from
ali the others, that it is monotypic and that, more often than
not, the most appropriate criteria, and the method or combina
tion of methods most likely to yield a result consonant with
what the law indicates, can only be deterrnined in relation to
71
Cf. ibid., p. 58, para. 46 and the quoted passage of the 1977 Arbitral Award
in the case conceming the Delimitation of the Continental Shelf (France/United
Kingdom), RIAA, vol. XVIII, p. 45, para. 70.
78· See also Ibid p. 92, para. 132 Case conceming the Delimitation of the Maritime
Boundary in the Gulf of Maine Area, /.C.J. Reports 1984, p. 299, para. 111; p. 313,
para. 158 or p. 315, para. 163.
73 each particular case and its specifie characteristics" (/. C.J.
79
Reports 1984, p. 290, para. 81).
Since "[t]he underlying premise of [the] fundamental norm (see
above para. 19) is the emphasis on equity and the rejection of any
obligatory method" (Case conceming the Delimitation between
Canada and the French Republic, /LM 1992, p. 1136, para. 38),
it is the task of the Court, with the assistance of the Parties, to
record the relevant circumstances of the case and, on this basis,
to choose a method of delimitation adapted to those circumstances
with a view to achieving an equitable result. This is the purpose
of the remaining Chapters of the present Memorial.
7· See also Arbitral Award of 14 February 198Délimitationde la frontière
maritime Guinée/GuinéeBissau, RGDIP 1985, p. 521, para. 89.
74 VII: THE POINT OF DEPARTURE OF
THE MARITIME DELIMITATION
1. The situation relating to the terminus of the land bound
ary near the mouth of the River Coco is examined in this chapter.
As the particulars will reveal, the situation involves both geo
graphical and legal complexities. In the respectful submission of
the Govemment of Nicaragua it is appropriate that the Court
should be reminded of the problems attending the terminus of the
land boundary, and this, inparticular, because it is these problems
that explain one of the main reasons for the selection of the
bisector as the appropriate method of delimitation.
A. The terminus of the land boundary as Agreed by the
Parties in December 15, 1962
2. Chapter III examined the history of the land boundary.
In order to proceed from that point to a maritime delimitation it
is necessary to recall the three basic instruments that determined
the land boundary and, in particular, the provisions that govem
the terminus of the land boundary in the Caribbean coast. These
instruments are:
1) The Arbitral Award made by theKing of Spain on Decem
ber 23, 1906, on the boundary situation of the Republics
of Honduras and Nicaragua.
2) The Judgment of the Court of November 18, 1960 con
firming the validity and binding effects of the Award of
1906.
3) The determination of the land terminus in the Caribbean
made on 15 December 1962 by the Honduras-Nicaragua
Mixed Commission that had been established through the
intervention of the OAS.
75 3. The Arbitral Award of the King of Spain bad indicated
that:
"The extreme common boundary point on the coast of the
Atlantic will be the mouth of the River Coco, Segovia or
Wanks, where it flows out in the sea close to Cape Gracias
a Dios, taking as the mouth of the river that of its principal
arm between Hara and the Island of San Pfo, where said Cape
is situated, leaving to Honduras the islets and shoals existing
within said principal arm before reaching the harbour bar, and
retaining for Nicaragua the southem shore of the said principal
mouth with the said Island of San Pfo, and also the bay and
town of Cape Gracias a Dios and the arm or estuary called
Gracias which flows to Gracias a Dios Bay, between the
mainland and said Island of San Pfo" (Quoted in l.C.J.
Reports 1960, p. 202).
4. The Award did not look seawards, but landwards when
it subsequently held that:
"Starting from the mouth of the Segovia or Coco, the frontier
line will follow the vaguada or thalweg of this river
upstream ... (Ibid, p. 203).
5. The Court declared the validity of the Award of the King
of Spain in its Judgment ofNovember 19, 1960 (Ibid pp. 192 ss).
It also indicated that it was clear in the Award that "the thalweg
was contemplated in the Award as constituting the boundary
between the two States even at the 'mouth of the river'". There
fore,"In the opinion of the Court, the determination of the bound
ary in this section should give rise to no difficulty"Ibid p. 216).
6. With the intervention ofthe Inter-American Peace Com
mittee Nicaragua and Honduras established a Mixed Boundary
Commission that was, inter alia,"to verify the starting point of
the natural boundary between the two countries at the mouth of
76the Coco River". 80 A Committee of Engineers that had already
been established by the two Govemments would help the Mixed
Commission to comply with its assignment. 81
7. On December 15, 1962,as aresult of the technical works
of the Committee of Engineers and of its own direct verification,
the Mixed Commission, under the chairmanship of Dr. Roberto
E. Quir6s, Executive Secretary ofthe Inter-American Peace Com
mittee asRepresentativeofits Chairman, and with theparticipation
of its Honduran member, the Foreign Minister, Dr. Roberto Per
domo Paredes, and Nicaraguan member, the Minister of Internai
Affairs, Dr. Ignacio Roman Pacheco, made the determination:
"that the starting point of the natural boundary between
Honduras and Nicaragua was at the mouth of the main branch
of the Coco River, indicated on the map prepared by the
Committee ofEngineers as "Brazo del Este", a point situated
at fourteen degrees, fifty-nine minutes and eight tenths of
minute (14° 59.8') North Latitude and eighty-three degrees,
eight minutes and nine tenths of minute (83° 08.9') West
82
Longitude, Greenwich meridian".
8· Paragraph 4.b, in fine, of the Basis of Arrangement. The Mixed Commission
was integrated by representativesof both Parties under the chairmanship of the
chairperson of the Inter-American Peace Committee (or his representative, i.e. an
O.A.S. official chosen by the Secretary General). See Appendix 1 of the Report
of the lnter-American Peace Committee, pp. 13-14. See Annex 1.
8
1. Ibid, paragraph 5. The official narne of this Committee was Honduran-Nicara
guan Joint Boundary Commission (Cornisi6n Mixta de Limites Hondurefio-Nica
ragüense ).he Cornrnittee consisted of two experts of each Party, presided by R.R.
Mcllwaine, from the U.S. See Annex 1.
82
· This translation accurately responds to the original Spanish text of the Minutes
of the 12th meeting of the Honduras-Nicaragua Mixed Comision. This paragrah 4
affirms that the Commission verified"cl punto de partida del limite natural entre
Honduras y Nicaragua en la desembocadura del brazo principal del rio Coco,
seiialadoen el piano de la Cornisi6n de Ingenieros con el nombre de "Brazo del
Este", punto que estâ situado a los catorce grados cincuenta y nueve rninutos y ocho
décimosde rninuto (14° 59.8') Latitud Norte y ochenta y tres grados ocho rninutos
y nueve décimosde rninuto (83°08.9') Longitud Oeste del meridiano de Greenwich"
(see Appendix 4 of the Informe de la Comision lnteramericana de Paz, p. 31). The
content of this paragraph was subsequently reproduced in the Informe. (see section
II, pp. 6-7).he English version of the original Spanish text of the Informe and
its appendices, doney the services of the O.A.S., translated erroneously the expres-
77 8. The location of the point where the land boundary of
Nicaragua and Honduras ended at the Atlantic coast in December
1962 was determined very carefully by the Committee of Engin
eers in their in situ inspection and survey described in Chapter
V. The engineers proudly stated that the geographical positions
in the Official Map they bad elaborated had been expressed "to
the tenth of a minute, which is more precise than the old maps,
expressed only to the minute". 83 Thus, the starting point of the
border expressed in seconds is 14° 59' 48" N, 83° 08' 54" W.
9. The situation would seem to have been made very clear
but here again Honduras bas tried on many occasions to alter to
its advantage this straightforward finding of the Mixed Boundary
Commission in 1962. The diplomatie practice of Honduras bas
been making attempts to relocate the starting point of the boundary
at 14° 59' 08" N, 83° 08' 09" W. 84
10. In the early eighties, Honduras generically referred to
its territorial claims in its diplomatie notes as those located north
sions "ocho décimasde minuta" and "nueve décimasde minuta" by "eight seconds"
and "nine seconds", transforming the 14°59.8' North Latitude and 83°08.9' West
Longitude in 14° 59' 08" North Latitude and 83° 08' 09" West Longitude. See
Annex l.
83 This is an exact translation from the original Spanish text of the Report of the
Honduran-Nicaraguan Joint Boundary Commission on the studies madeat the mouth
of the Coco, Segovia, or Wanks River. See section VI, last paragraph, which says
that the geographie position of the intersection of the thalweg of the Brazo del Este
with the seacoast has been expressed "hasta el décimode minuto, precisi6n que
es mayor que la que aparece en los mapas antiguos que s6lo llegaban hasta el
minuto" (Appendix 3of the Report of the Inter-American Peace Committee, p. 28).
Once again the English version of this text offered by the O.A.S. erroneously
translated "hasta el décimode minuto" for "the second". See Annex l.
84
· As will be explained below in paragraph 22 of this Chapter, Nicaragua is
requesting that the delimitation of the maritime areas should start from a point
located in the sea about 3 nautical miles from the mouth of the Coco. Furthermore,
as indicated in paragraph 28 of this Chapter, Nicaragua is requesting that it be left
to the Parties to negotiate thedelimitation of the boundary from the point determined
by the Mixed Commission in 1962 to the point at sea identified by Nicaragua as
the starting point of the delimitation for present purposes. For this reason, the
explanation given in the following paragraphs to the position of the Parties with
relation to the point determined by the Mixed Commission is for the record only.
As the Court will readily appreciate, Nicaragua reservesits position on this question.
78of the "parallel which passes through the Cape Gracias a Dios" 85,
86
"(North of) parallel 15" orto the rocks located in the disputed
area, as the Media Luna or Bobel Cays, situated North of said
87
parallel.
11. However, in theTreaty on Maritime Delimitation, signed
on August 2, 1986, Honduras agreed with Colombia on the adop
tion of Parallel 14° 59' 08" N, when it reaches the Meridian 82°
00' 00" W, as the starting point of the self-serving limit of their
respective maritime spaces in the Caribbean:
"The marine frontier between the Republic of Colombia and
the Republic of Honduras", affirms Article 1, "is constituted
by geodetic tines that connect the points located in the follow
ing coordinates: Point No1. Lat.l4° 59' 08" N Long. 82°00'
00" W..." (La Gaceta, diario oficial de la Repûblica de
Honduras, December 1, 1999).
12. Since then Honduras has persisted with the relocation
of her claimed boundary line as is evidenced by the high number
of diplomatie notes issued by the Honduran Foreign Ministry
which insist on the prolongation to the East of the Parallel 14°
59' 08" N as the maritime boundary with Nicaragua. 88 The claim
sometimes takes the form that this is the parallel that passes
85 E.g., Notes of May 3, and September 20, 1982 (N. 254-DSM and DSS-502).
See Annexes: 78 and 19.
8· E.g., Notes of August 17, and September 13, 1983 (N. 406-DA and 456-DA)
87d October 9, 1984 (N. 552-DA). See Annexes: 25, lOOand 28.
· E.g., Notes of March 23, April 19, and September 18, 1982 (N. 0031-DSS,
235-DSM and 2176-SD), April.15 and21, andAugust29, 1983 (N. 228-DSM, 245-
DSM and 426-DA) and April 19, 1985 (N. 162-DA). See Annexes: 8, 101, 18, 21,
88, 102 and 30.
· E.g., Notes of October 26 and 27, 1992 (N. 362-DSM and 363-DSM), June
4 and 30, 1993 (N. 295-DSM and 336-DSM), April 7 and November 9, 1994 (N.
124-DSM and487-DSS), April19, June 13, and December 18, 1995 (N. 0-216-DSM,
197-SAM-95, 226-SAM-95, EHN-297/95 and SIR) and, most recently, in the "Offi
cial Position" of the Govemment of Honduras of December 8, 1999 and in the press
releaseof the Foreign Ministry of February 15, 2000 (released at the time also in
http://www.ser.hn/limites-maritimos). See Annexes: 34, 35,, 103, 76, 36, 38, 83
and 39.
79through the Cape Gracias a Dios , or that it is the tenninal point
of the land boundary located at the mouth of the Coco, Segovia
or Wanks River. 90
13. In response to these Notes the Nicaraguan diplomatie
correspondence has referred to the Parallel 14° 59' 08" N only
to express a categorical rejection of it as the maritime dividing
91
line claimed by Honduras.
14. In any case, although this Memorial will reproduce the
references to the Parallel 14° 59' 08" N when quoting the Notes
or other documents which mention it, it must always be under
stood that the tenninal point of the land boundary between Nica
ragua and Honduras in the Atlantic coast as established in the
Minute of December 15, 1962, is the point situated "at fourteen
degrees, fifty-nine minutes and eight tenths of a minute (14°59.8')
North Latitude and eighty-three degrees, eight minutes and nine
tenths of a minute (83° 08.9') West Longitude, Greenwich meri
dian".92
15. On this question it should be pointed out that the appetite
of Honduras for territory has placed it on a logically untenable
position. On the one hand she alleges that there is a "traditional"
boundary in place and at the same time it appears that it is a
moveable line and the tradition moves with it.
8· E.g., Notes of October 26 and 27, 1992 (N. 362-DSM and 363-DSM). See
Annexes: 34 and 35.
90
· E.g., Notes of June 4 and 30, 1993(N. 295-DSM and 336-DSM) and November
9, 1994 (N. 487-DSS). See Annexes: 80, 104 and 36.
91 E.g., Notes of January 4, 1993 (N. 930101 and 930102), June 25, 1993 (N.
930276), April14, 1994 (N. 940286), December 12, 1994 (N. 940507 and 940508),
May 5,August 23 and 29, and December 20, 1995 (N. 950184, MRFJ95/03771,
950369 and 9505335). See Annexes: 65, 66, 73, 77, 49, 50, 59, 82, 17 and 54.
92. Minutes ofthe 12th meeting of the Honduras-Nicaragua Mixed Commission,
at Appendix 4 of the Report of the lnter-American Peace Committee, p. 31). This
pointis correctly mentioned by the Honduran Diplomatie Note of June 19. 1998
(N. 180-DSM), referred later by the Diplomatie Note of July 8 (N. 243-DSM). See
Annexes: 41 and 42.
80 16. Perhaps to try tobring back sornemeasure of consistency
toits position, Honduras established a system of straight baselines
from which the breadth of its territorial sea was to be measured
and the pertinent end of its baseline on the Caribbean boundary
with Nicaragua is indicated asbeing the thalweg of the Coco River
located on the coordinates established in 1962, that is, at 14°59.8'
North Latitude and (83°08.9')West Longitude. It must, of course,
not be lost to sight that this Honduran Law dates from March 29,
2000; that is sorne months after the Application was filed by
Nicaragua in the present case. This degree was generally protested
93
by Nicaragua.
B. Consequences of the Changes in the Geographical Situ
ation since 1963
17. An important factor that must been taken into considera
tion for the starting point of the line proposed by Nicaragua is
the fact that the land boundary ends on a highly unstable river
mouth. As explained and illustrated in Chapter II, the river mouth
has, since the 19thCentury at least, been moving in anortheasterly
direction.
18. Even from as late as 1962 - when the end of the present
land boundary was pinpointed at the mouth of the Coco River -
to the present day, the movement north and east, due to the
accretion of sediments and the trend of the marine streams, has
been considerable: more than one mile. As a consequence thepoint
of intersection between Parallel 14° 59.8' N and Meridian 83°
08.9' W is today located about a mile landwards from the actual
mouth of the Coco River. At this point it is useful to recall the
9· This Executive Decree (Decreta Ejecutivo) N. PCM 007-2000, ofMarch 21,
(La Gaceta, diario oficial de la Republica de HonduN. 29.135, March 29),
establishing straight baselines - a Decree which is not, in any case, opposable to
Nicaragua- Article LA disposes that the 16th- and last- of the straight baselines
unilaterally adopted proceeds "from the Point on the right bank of the Cruta River
(lat. 15° 14' 59" N, long. 83° 23' 07" W) to Point 17, the termination of the land
boundary between Honduras and Nicaragua at the mouth the Coco (Wanks) or
Segovia River on Cape Gracias a Dios, with the following coordinates: 14° 59.8'
north latitude, 83° 08.9' west longitude".
81satellite image that bas been provided showing the present situ
ation at the mouth and the location of the border point established
in 1962. (See Figure VII)
19. In this respect the situation of the present day natural
environment bas confrrmed the observation made by the Commit
tee of Engineers back in 1962 on the continuation of the "numer
ous changes in the topography of the region through the years"
and that in the region of the mouth of the Coco River "the land
bas been advancing toward the sea". (See Chapter II, para. 20).
20. In any case, it results from this fact that the prolongation
of Parallel14° 59.8' N cannot now be taken as the starting point
of the maritime boundary between Nicaragua and Honduras,
because it is no longer the "extreme common boundary on the
coast of the Atlantic" fixed by the Arbitral Award of the King
of Spain.
21. lt is not the desire of Nicaragua to use this fact with the
purpose of raising the problems that may stem from the pro
gression of the land boundary with Honduras as a consequence
of the sharp and continued natural mutations of the territory.These
changes are mentioned only to justify the appropriateness of the
Nicaraguan proposais regarding the location of the starting point
of the maritime boundary.
22. Thus, seeking a certain degree of permanence of the
maritime boundary, Nicaragua considers that the instability and
the wide fluctuations in the course of the Coco River, particularly
at its mouth, justifies setting the starting point of the maritime
delimitation for present purposes at a prudent distance from the
mouth of the River.
23. In the 40 years since the Mixed Commission fixed the
position of the thalweg where it met the sea, as bas been indicated
above, the land mass and mouth of the river have moved. This
9· Report of the Honduran-Nicaraguan Joint Boundary Commission on the studies
made at the mouthf the Coco, Segovia, or Wanks River, "Remarks", at Appendix
3 of the Report of the lnter-American Peace Committee, p. 28. See Annex 1.
82fact has brought Nicaragua to the conclusion that the starting point
of the delimitation line should not be the river mouth but that it
should be located at a point further out at sea from this point. As
will be explained in Chapter X, the delimitation will follow an
approximate median line up to the limit of the territorial sea. The
proposed starting line would be located at a point along that
median line direction situated 3 nautical miles out at sea from the
mouth of the Coco River. This point is located in the following
geographical coordinates: 15°01' 53" N 83° 05' 36" W. Further
more, Nicaragua's proposai is that those first 3 nautical miles of
maritime areas up to the land position fixed in 1962, should be
left to theParties to negotiate an agreement that would take into
consideration the constant changes in the river mouth.
24. The idea behind this proposai is not unknown or even
new to State practice in the Region. Among the precedents on the
location of the point of departure of the maritime boundary off
the delta or estuary of the river where the land frontier ends, the
American treaty practice offers the centennial treaty of limits
between Guatemala and the United Mexican States, of September
27, 1882. The treaty took into account the instability of the mouth
of the Suchiate River and the agreement parted from a point
located at sea three leagues away from the mouth of the river
(Article 3) (Tratados y Convenios Vigentes, México, 1909, Vol.
1,pp. 473 ft).
25. Another more recent and sophisticated example is offered
by the Treaty to Resolve Pending Boundary Differences and
Maintain the Rio Grande (Rio Bravo del Norte) and Colorado
River as the International Boundary Between the United Mexican
States and the United States of America, signed on November 23,
1970. Looking for a solution for the problems posed by the fluctu
ations at the mouth of the Rio Grande, the Parties agreed to fix
a point at sea at sorne distance from the mouth of the river, which
could act as a hinge in the boundary. Article V.a of the treaty
stipulates that:"The international maritime boundary in the Gulf
of Mexico shall begin at the centre of the mouth of the Rio
Grande, wherever it may be located; from there it shall run in a
straight line to a fixed point, at 25° 57' 22.18" North latitude, and
97° 8' 19.76" West longitude, situated approximately 2000 feet
83seaward from the coast; from this fixed point the maritime bound
ary shall continue seaward in a straight line the delineation of
which represents a practical simplification of the line drawn in
accordance with the principle of equidistance..." (see in 23 UST
373, 1972).
26. As regardsthejurisprudence,the criterion of safeguarding
the starting point of the maritime delimitation from the manifest
instability of a river delta where the land boundary ends was
adopted by the Arbitral Tribunal in the delimitation of the mari
time boundary between Guinea and Guinea-Bissau that rendered
its Award on February 14, 1985.
27. In this case the Arbitral Tribunal said: "Comme le thal
weg du Cajet peut en pratique subir des déplacementsau fil des
ans, le Tribunal a fait partir la délimitationdes territoires mari
times de l'intersection de ce thalweg avec un méridienapproprié,
sans indiquer une latitude plus précise.TIa choisi à cet effet le
méridiende 15° 06' 30" de longitude ouest. Sur la carte, il n'a
pas fait dessiner un tracédéfinitifpour la partie de la délimitation
comprise entre l'extrémitéde la frontière terrestre et le point A
défini au paragraphe 130, alinéa 3) b) ci-après, mais il a fait
indiquer en trait fin un tracépotentiel destiné àillustrer la continu
itéde la ligne de délimitationà tout moment sans correspondre
forcémentau tracéréeldans unepériodedonnée"(Revue Générale
de Droit International Public, 1985, p. 534). 95
28. In the light of this reasoning the Tribunal declared that:
"la ligne délimitantles territoires maritimes qui relèventrespect-
95
· Arbitral Award ofFebruary 14, 1985,para. 129.See International Law Reports,
77(1988), p. 691. English translation reads as follows: "As the thalweg of the Cajet
River may, in practice, be subject to movement over the years, the Tribunal has
started the line of delimitation of the maritime territories from the intersection of
this thalweg with an appropriate meridian, without indicating a more precise latitude.
For this purpose, it has chosen the meridian of 15"06' 30" W longitude. No final
line has been drawn on the chart to define that part of the delimitation between the
end of the land boundary and the point A defined in paragraph 130 (3) (b) below,
but a fine line was drawn to indicate a potential line designed to illustrate the
continuityf the line of delimitation at any time, without necessarily corresponding
to the actual line over a given period."
84ivement de la Républiquede Guinée-Bissauet de la République
de Guinée: a) part de l'intersection du thalweg du Cajet et du
méridien de 15° 06' 30" de longitude ouest" (Ibid., 1985, p.
535) and went on to give the points that were to be joined by
loxodromie segments starting from point A which was located
at 15° 09' 00" West longitude. This means that the line started
in fact 2' 30" west of the thalweg of the Cajet River; that is at
a distance of approximately 2.5 nautical miles from the landmass.
29. In conclusion, Nicaragua considers it more appropriate
that the situation of the short strip of boundary located between
the point determined in 1962and the 3mile outer limit itproposes
as the starting point should be left for the determination of the
Parties. The reasons for this are similar to those expressed by the
Anglo-French Tribunal. It considered, from another angle, the
complications involved for a Tribunal of fixing points and lines
very near the shore. The Parties in that case did not accept that
the Tribunal had jurisdiction to settle the maritime boundary "in
the narrow waters which separate the Channel Islands from the
coasts of Normandy and Brittany". The Tribunal for its part agreed
that practical considerations favoured the choice of the Parties to
settle thatpart of themaritime boundary through negotiations. The
reasoning was that,
"In narrow waters such as these, strewn with rocks, coastal
States have acertain liberty in their choice ofbase points; and
the selection of base points for arriving at a median tine in
such waters which is at once practical and equitable appears
to be a matter peculiarly suitable for determination by direct
negotiations between the Parties." (Anglo-French Continental
Shelf Arbitration of 30 June 1975, l.L R. 54, p. 6 at para. 22)
30. Nicaragua believes that in the even more roiled and
moveable waters of the Coco River as it enters and into the sea,
it is better for the Parties to negotiate a solution. If a fixed point
96. Ibid., para. 130. See International Law Reports, 77 (1988), p. 691. English
version reads as follows: "the line delirniting the respective maritime territories: ... a)
starts from the intersection of the thalweg of the Cajet River and the meridian 15°
06' 30" West longitude."
85is indicated at the mouth of the river and it continues to move
as it has done since 1962,it would open upnew and unforeseeable
problems in the coming decades.
86 VIII : THE PROCESS OF DELIMITATION
BEYOND THE TERRITORIAL SEA
1. As a matter of convenience, the alignment that is pro
duced by the process of delimitation beyond the territorial sea will
be examined first (further, see para. 2, Chapter X below). The
process of delimitation within the territorial sea will be exarnined
subsequently in Chapter X. As a preliminary to the exarnination
of the delimitation beyond the territorial sea, it is appropriate to
consider the applicable law.
A. A Single Maritime Boundary
2. In its Application,Nicaraguaasks the Court "to determine
the course of the single maritime boundary between the areas of
territorial sea, continental shelf and exclusive economie zone
appertaining respectively to Nicaragua and Honduras, in accord
ance with equitable principles and relevant circumstances recog
nized by general international law as applicable to such a delimita
tion of a single maritime boundary" (paragraph 6). As the Govem
ment of Nicaragua has indicated expressly in the Application, the
request for a delimitation of the single maritime boundary is
subject to the power of the Court to establish different delimita
tions, for shelf rights and fisheries respectively, if, in the light of
the evidence, this course should be necessary in order to achieve
an equitable solution.
3. There is no doubt that, as shown by Judge Oda in his
separate opinion in the case conceming Maritime Delimitation
in the Area between Greenland and Jan Mayen, "[i]n the absence
of an agreement between the States concemed, one cannot pre
suppose a single delimitation for two separate and independent
régimes,the exclusive economie zone and the continental shelf,
although the possibilityf aneventual coïncidence of the two lines
may not be excluded". (ICJ Reports 1993,p. 109, para. 70) How
ever, the legal régimesofboth concepts cannot be entirely separ
ated and, in the present case, Nicaragua does not perceive any
87decisive circumstance which would move the Court to establish
two distinct lines which would, unavoidably, be a source of diffi
culties and, possibly, of subsequent disputes.
4. lt is Nicaragua's firm conviction that the modem law
of maritime delimitation is entirely dominated by the principle
according to which the purpose of delimitation is "to achieve an
equitable solution". This rule is enunciated in similar terms by
articles 74, paragraph 1,and 83, paragraph 1, of the 1982 United
Nations Convention on the Law of the Sea, relating respectively
to the exclusive economie zone and to the continental shelf.
5. ln its Judgment of20 January 1984 in the case concem
ing Delimitation of the Maritime Boundary in the Gulf of Maine
Area, the Chamber of the Court considered that these provisions
may "be regarded as consonant at present with general inter
national law on the question" (l.C.J. Reports 1984, p. 294, para.
94). Moreover, this same Chamber drew attention to "the identical
definition" contained in both provisions (Ibid p. 294 para. 95) and
noted that:
"the symmetry of the two texts, relating to the delimitation
of the continental shelf and of the exclusive economie zone,
is most interesting in a case like the present one, where a
single boundary line is to be drawn both for the sea-bed and
for the superjacent fishery zone, which is included in the
exclusive economie zone concept. The identity of the language
which is employed, even though limited of course to the
determination of the relevant principles and rules of inter
national law, is particularly significant" (Ibid., p. 295, para.
96) .97
97
· See also I.C.J., Judgment, 14June 1993, Caseconceming Maritime Delimitation
in the Area between Greenland and Jan Mayen, l.C.J. Reports 1993, p. 59, para
48. In hls dissenting opinion in the case concerning the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya), Judge Oda noted "that the rules and principles applicable
to the delimitationthe continental shelf will not be different from those applicable
to the delimitation of the exclusive economie zone" (l.C.J. Reports 1982, p. 247,
para. 145).
88 6. It is true that, in that case, the Chamber of the Court bad
been expressly asked, in the Special Agreement between Canada
and the United States to decide "the course of the single maritime
boundary that divides the continental shelf and fisheries zones"
of the Parties (l.C.J. Reports 1984, p. 253). However,
-first,as the Chamber noted (see above, para. 3), the concept
of fishery zone is included in the exclusive economie zone con
cept; and,
- second, that same Chamber stressed "the disadvantages
inherent in a plurality of separate delimitations" (/.C.J. Reports
1984, p. 327, para. 195).
7. In the case conceming Maritime Delimitation in theArea
between Greenland and Jan Mayen, "the situation [was] quite
different from that in the Gulf of Maine case" in that there was
"no agreement between the Parties for a single maritime delimita
tion" (l.C.J. Reports 1993, p. 57, para. 42) and that, as far as the
continental shelf wasconcemed, both Denmark and Norway were
Parties to the 1958 Geneva Convention on the Continental Shelf.
8. However, the Court considered that "[t]he fact that it is
the 1958 Convention which applies to the continental shelf de
limitation in this case does not mean that Article 6 thereof can
be interpreted and applied either without reference to customary
law on the subject or independently of the fact that a fishery
boundary is also in question in these waters" (Ibid., p. 58, para.
46) and noted, without objection, the common position of the
Parties which saw no obstacle "to the boundary of the fishery
zones being determined by the law goveming the boundary of the
exclusive economie zone, which is customary law" (Ibid., p. 59,
para. 47), and which the Court effectively applied (Ibid., pp. 61-
64, para. 52-58). And the Court concluded that, "in the circum
stances of [that] case", the identity of the position of the delimita
tion lines for the two categories of maritime spaces constituted
"a proper application both of the law applicable to the continental
shelf and of that applicable to the fishery zones" (Ibid., p. 79,
para. 90)
89 9. And even in the case conceming the Continental Shelf
(Libyan Arab Jamahiriya/Malta) where the Court was asked only
to delimit the continental shelf boundary, it expressed the view
that:
"even though the present case relates only to the delimitation
of the continental shelf and not to that of the exclusive eco
nomie zone, the principles and rules underlying the latter
concept cannot be left out of consideration. As the 1982 Con
vention demonstrates, the two institutions - continental shelf
and exclusive economie zone- are linked together in modem
law. Since the rights enjoyed by a State over its continental
shelf would also be possessed by it over the sea-bed and
subsoil of any exclusive zone which it might proclaim, one
of the relevant circumstances to be taken into account for the
delimitation of the continental shelf of a State is the legally
permissibleextentof theexclusiveeconomiezoneappertaining
98
to that same State" (l.C.J. Reports 1985, p. 33, para. 33).
10. The arbitraljurisprudence is in the same direction. Thus,
in its Award of 14February 1985in thecase conceming Delimita
tion of the Maritime Boundary between Guinea/Guinea-Bissau,
theTribunal, after having determined that "aucune frontièremari
time ne délimiteleseaux territoriales, la zone économiqueexclus
ive et le plateau continental relevant respectivement de la Guinée
et de la Guinée-Bissau" (R.G.D.I.P. 1985, p. 521, para. 86) 99,
drew a single all-purpose "ligne délimitantles territoires qui re
lèvent respectivement de la Républiquede Guinée-Bissauet de
la République de Guinée" (Ibid., dispositif, p. 535, para.
130.3). 10, without making any distinction between the continen
tal shelf on the one hand, and the exclusive economie zone on
98
· See also the positive assessment of this position in Judge Oda's dissenting
opinion,Ibid., p. 156, para. 60; l.C.J. Reports. 1993, pp. 58-59, para. 46.
99· English translation: "there is no boundary delimiting the territorial waters, the
exclusive economie zone or the continental shelfbelonging respectively to Guinea
and Guinea-Bissau." 77 ILR 1988, p, 636 at p. 675.
10· English Translation: "The line delimiting the respective maritime territories
of the Republic of Guinea- Bissau and the Republic of Guinea." 77 ILR 1988, p
691 at para. 130. 3.
90the other hand. 101 As noted by Professor Prosper Weil, "[l]a fron
tière unique est en quelque sorte perçue par le Tribunal comme
une donnéeimmédiate du droit contemporain de la mer, contre
laquelle il ne ressent le besoin d'élever, ou mêmed'examiner,
aucune objection" 102 (Perspectives du droit de la délimitation
maritime, Pedone, Paris, 1988, p. 137).
11. Similarly, in the case concerning Delimitation of Mari
time Spaces between Canada and France, the Arbitral Tribunal
was asked to establish "une délimitationunique qui commandera
à la fois tous droits etjuridictions que le droit international recon
naît aux Parties dans les espaces maritimes" under dispute
103
(R.G.D.l.P. 1992, p. 679). The Tribunal noted that "aucun
obstacle matérielne s'oppose à ce que le Tribunal trace une ligne
unique de délimitationcomme le lui demande le compromis d'ar
bitrage" (Ibid., p. 692, para. 37) 104 and, as noted with approba
tion by Professor Prosper Weil in his dissenting opinion appended
to the Award, "[l]a sentence s'inscrit ainsi dans l'évolutionde la
pratique des États et de la pratique judiciaire vers une frontière
maritime unique couvrant 1'ensemble du faisceau des droits et
juridictions maritimes que le droit international reconnaît aux États
côtiers" (Ibid., p. 730, para. 39). 105
10J. See also Judge Bedjaoui'sdissenting opinion in the case concerning Determina
tionof the Maritime Boundary between Guinea-Bissau/Senegal,joined to the Award
dated 31 July 1989, reproduced in I.C.J., Application of Guinea Bissau in the case
conceming the Arbitral Award of 31 July 1989, Annex, pp. 76-209.
102
· The corresponding passage in English edition reads as follows:
"[t]he single boundary as a fact of the current law of the sea, against which it saw
no need to raise, or even examine, any objection" (The lAw of Maritime Delimitation
- Rejlections, Cambridge, 1989, p. 126).
103
· Accord instituant un Tribunal d'arbitrage chargéd'établirla délimitationdes
espaces marins entre la France et le Canada,30 March 1989, Article 2, paragraph
1, reproduced in the Award of 10 June 1992, R.G.D.l.P. 1992, p. 679. The english
text reads as follows:"... a single delimitation which shall govem ali rights and
jurisdiction which thearties may exercise under international law in these maritime
areas. "(31 /LM, 1145 (1992) at. p. 1152).
10· The english text reads as follows: "... there is no material impossibility in
drawing a boundary of this kind." (31 /LM, 1145 (1992) at. p. 1163)
105
· The English translation reads as follows: "The decision thus takes its place
in the evolution of State and judicial practice toward a single maritime boundary
covering the whole range of maritime rights and jurisdictions that international law
reconizes to coastal States." (31 /LM, 1145 (1992) at. p. 1214).
91 12. Practice is more and more firmly established in favour
of a single line of delimitation for both the continental shelf and
the exclusive economie zone. Only in very specifie circumstances
do States choose different lines in order to delimit their respective
continental shelves on the one hand and their exclusive economie
106
zones (or their fishery zones) on the other hand and it is reveal
ing that, while Iceland and Norway had first envisaged making
a distinction between the line dividing their continental shelves
and their exclusive economie zones, they eventually accepted the
recommendation made by the Conciliation Comrnission 107 to
adopta single line (see theAgreement of22 October 1981 between
Iceland and Norway relating to the continental shelf in the area
of Jan Mayen, A.F.D.l. 1981, p. 736). As noted in 1996 by two
French specialists of the law of the sea, "un critèreclair s'impose
de plus en plus: celui de la ligne séparativeunique, valant dé
limitation d'ensemble ("all-purpose line"). Le nombre des accords
recourant à cette formule est élevé(plus d'une cinquantaine) et
ne cesse d'augmenter, car des raisons pratiques évidentesplaident
en sa faveur" (Laurent Lucchini et Michel VŒlkel, Droit de la
mer, tome 2, Délimitation,navigation et pêche,vol. 1, Délimita
tion, Pedone, Paris, 1996, p. 104).
13. This coïncidence between the delimitation of the con
tinental shelf and the exclusive economie zone is stressed, and
usually approved, by the authorities. Thus, as early as 1983, Presi
dent Guillaume, then the Legal Adviser of the French Ministry
of Foreign Affairs, explained that he was in favour of unity "sur
tout pour une raison juridique": "Le concept de zone économique
emporte des droits à la fois sur les eaux et sur le sol et le sous-sol.
Par conséquent,dans la limite des 200 milles, dissocier ce concept
106
· One weil known exception is theTreaty of 18December 1978between Austra
lia and Papua-New Guinea, 18 l.L.M. 1979, p. 291. This exception was justified
by very specifie geographie circumstances (proximity of Australian islands to the
coast of Papua-New Guinea (see H. Burmester, "The Torres Strait Treaty: Ocean
Boundary Delimitation by Agreement", 76 AJIL 1982, p. 321, at p. 322 oJ.l.
Chamey and L.M. Alexander, International Maritime Boundaries, vol. 1,p. 929).
10· Conciliation Commission, Jan Mayen Continental shelf, 19-20 May 1981,
Report and Recommendations to the Govemments of Iceland and Norway, in
International Boundary Cases, The Continental Shelf, vol. 1,Cambridge 1992, pp.
683-713.
92de celui du plateau continental ne semble pas conforme à l'esprit
mêmede la Convention [des Nations Unies sur le droit de la mer].
...TIy a [... ] toute une sériede modalitéspratiques par lesquelles
on peut contourner le problème; mais, conceptuellement, il me
paraît difficile de dissocier les deuxnotions" ("Débats"in S.F.D.I.,
Colloque de Rouen, Perspectives du droit de la mer à l'issue de
la troisième conférencedes Nations Unies, Pedone, Paris, 1984,
p. 328).
14. Similarly, during this same period, while the legal ré
gimes of the continental shelf and the exclusive economie zone
were not yet stabilized, several Judges expressed their convictions
that "[a]t least in the large majority of normal cases, the delimita
tion of the exclusive eonomic zone 108 that of the continental
shelf would have to coïncide" . In particular, Judge Jiménez
de Aréchaga declared that:
"The uniqueness which characterizes the sovereign rights of
the coastal State with respect of ail natural resources of the
shelf indicates that a dual régime, as suggested by Libya,
cannot result from the rules of general international law. There
may be examples in State practice of a 'vertical super
imposition of rights' but they can only result from special
agreements accepted by the Parties and are not imposed by
the general rules of international law that the Court is called
upon to identify ..." (Ibid., p. 130, para. 99).
No such agreement exists in the present case.
10· Separate Opinion of Judge Jiménezde Aréchaga,l.C.J., Judgment 24 February
1982, Case conceming the Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
1.C.J.Report1982, p. 115, para. 56; see also Judge Oda's dissenting opinion, above
fu. 4, p. 232, para. 126, p. 234, para. 130 and p. 249, para. 146 and Judge Evensen's
dissenting opinion, p. 288, para.
93 15. The writings of publicists concur with theseopinions and
share these concems. They agree that a single delimitation line
is and should be the general rule. 109
16. Only very extraordinary circumstances could, from the
point of view of Nicaragua, induce the Court to depart from this
general rule and the Republic of Nicaragua does not perceive any
such circumstance in the present case.
17. As willbe shownin moredetail in thefollowing sections,
all specifie circumstances that are relevant in the present case are
generally relevant for the delimitation of the continental shelf and
of the exclusive economie zone. Thus, there can be no doubt that,
the very specifie features of the coast, its convex character, the
changing structure of the mouthof River Coco and the consequent
technical difficulty of using amedian line in its normal form, must
be equally taken into consideration for both maritime zones.
18. Moreover, Nicaragua does not deny that, as the Court
noted in the case conceming the Continental Shelf (Libyan Arab
Jamahiriya/Malta):
"Although there can be a continental shelf where there is no
exclusive economie zone, there cannot be an exclusive eco
nomie zone without a corresponding continental shelf. It fol
lows that, for juridical and practical reasons, the distance
criterion must now apply to the continental shelf as weil as
to the exclusive economie zone; and this quite apart from the
provision as to distance in paragraph 1 of article 76 [of the
Convention on the Law of the Sea]. This is not to suggest that
the idea of natural prolongation is now superseded by that of
distance. What it does mean is that where the continental
10· See e.g.: L. Caflisch, "La délimitationdes espaces marins entre États dont les
côtes sont adjacentes ou se fonte" in R.J. Dupuy et D. Vignes dir., Traitédu
nouveau droit de la mer, Économica/Bruylant, Paris/Bruxelles, 1985, pp. 422-423;
Sir Robert Jennings and Sir Arthur Watts, Oppenheim 's International Law, 9thed.,
Longman, Harlow, 1992, p. 781; L. Lucchini et M. VŒlckel, op. cit. fu. 25, pp.
103-105; Patrick Daillier et Alain Pellet, Droit international public (Nguyen Quoc
Dinh),L.G.D.J., Paris6"ed., 1999, p. 1128.
94 margin does not extend as far as 200 miles from the shore,
natural prolongation, which in spite of its physical origins bas
throughout its history become more and more a complex and
juridical concept isin part defined by distance from the shore,
irrespective of the physical nature of the intervening sea-bed
and subsoil. The concepts ofnatural prolongation anddistance
are therefore not opposed but complementary ... " (/C.J.
Reports 1985, p. 33, para. 34; see also l.C.J.Reports 1993,
pp. 58-59, para. 46 ~ above, fn. 14).
19. In the presentcase, as Nicaragua will show in more detail
in the following Chapter, the distance element and the natural
prolongation converge in a singleline which achieves an equitable
solution as confirmed by the various tests usually used in maritime
delimitation.
B. The Articulation of the Delimitation beyond the Territorial
Sea: the Bisector Method
20. The applicable law consists of the proposition that the
principles and rules applicable to the delimitation of areas of
exclusive economie zone and continental shelf are "those which
are appropriate to bring about an equitable result": see further
Chapter IV, Section B.
21. The outcome is that the method of delimitation must
reflect the equitable criteria of the division of overlapping areas
and thus bring about an equitable result. This overall aimjustifies
the method adopted. In this context the Government of Nicaragua
proposes a method of delimitation overall which consists of the
bisector of the angle produced by constructing lines based upon
the respective coastal frontages andproducing extensions of these
lines.
22. The starting point of this sector of the delimitation is
located at the outer limit of the territorial sea.
95 23. The boundary proposed for the purpose of dividing the
overlapping exclusive economie zones of the parties is a continu
ation of a line which can be described as follows:
The illustratedbisectoris the bisectorf twolines representing
the entire coastal frontf both states. As depicted in the illus
tration, it is a geodesie line originating at the point 15° 01'
53" N 83° 05' 36" W which is projected in a north easterly
direction over a distance of approximately 250 kilometres on
a geodetic azimuth of 53° 24' 07.9". The first section extends
to the outer limit of the Territorial Sea, at 15°06' 16" N 082°
58' 08" w.
24. This originating point constitutes the intersection of the
two lines A and B indicated on Figure A in Volume III (maps).
Line A reflects the coastal frontage of Honduras abutting on the
areas to be divided. Line B reflects the coastal frontage of Nica
ragua in the areas to be divided.
25. The proposed line is constituted by the bisector, as aline
of continuai bearing, of the angle formed by the intersection of
Lines A and B.
26. The terminalpointmust remain tobe determinedbecause
in this area the rights of third parties come into play. International
tribunats have consistently recognised that the determination of
maritime boundaries which would overlap with the interests of
third States is outside the competence of the tribunal exercising
jurisdiction : see the Judgment of the Court in Case Conceming
the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J.
Reports 1982, p. 64, para. 81; p. 91, para. 130; and also the Dis
positif, where the Court states the following:
"3) in the second sector, namely in the area which extends
seawards beyond the parallel of the most westerly point of
the Gulf of Gabes, the line of delimitation of the two con
tinental shelves is to veer to the east in such a way as to talee
account of the Kerkennah Islands :that is to say, the delimita
tion line is to run parallel to a line drawn from the most
westerly point of theGulf of Gabes bisecting the angle formed
96 by a line from that point to Ras Kaboudia and a line drawn
from that same point along the seaward coast of the Kerken
nah Islands, the bearing of the delimitation line parallel to
such bisector being 52° to the meridian : the extension of this
line northeastwards is a matter falling outside the jurisdiction
of the Court in the present case, as it will depend on the
delimitation to be agreed with third States." (emphasis sup
plied) (Ibid., p. 94)
27. In the Libya/Malta case at the Merits phase (subsequent
to the application of Italy to intervene in the proceedings), the
Court observed:
"The present decisionmust ...be limited in geographical scope
so as to leave the claims of Italy unaffected, that is to say that
the decision of the Court must be confined to the area in
which, as the Court bas been informed by Italy, that State bas
no claims to continental shelf rights. The Court, having been
informed of Italy's daims, and having refused to permit that
State to protect its interests through the procedure of inter
vention, thus ensures Italy the protection it sought. A decision
limited in this way does not signify either that the principles
and rules applicable to the delimitation within this area are
not applicable outside it, or that the daims of either Party to
expanses of continental shelf outside that area have been
found to be unjustified : it signifies simply that the Court bas
not been endowed with jurisdiction to determine what prin
ciples and rules govem delimitations with third States, or
whether the claims of the Parties outside that areaprevail over
the claims of those third States in the region." (emphasis
supplied) (/.C.J. Reports 1985, pp. 25-6, para. 21).
28. More recently the principle was affirmed by the Arbitral
Tribunal in the case of Govemment of the State of Eritrea and
the Govemment of the Republic ofEthiopia, in the Award in the
second stage of the proceedings. In the words of the Tribunal:
"There is also a problem relating to both the northem and the
southem extremities of the international boundary line. The
Tribunal bas the competence and the authority according to
97 the Arbitration Agreement to decide the maritime boundary
between the two Parties. But it bas neither competence nor
authority to decide on any of the boundaries between either
of the two Parties and the neighbouring States. It will there
fore be necessary to terminate either end of the boundary Iine
in such a way as to avoid trespassing upon an area where
other claims might fall tobe considered." (emphasis supplied)
(Second Award, 17 December 1999, para. 136; and see also
para. 164)
29. The line produced by the application of the bisector
method continues up to the area of seabed occupied by Rosalinda
Bank, in which area the claims of third states come into play.
C. The Legal Provenance of the Method of the Bisector of
an Angle
(a) The Foundation of the Method
30. The method of producing an alignmentbas no legitimacy
per se. The construction of an alignment is a legal and political
function of the judicial process resulting in a dispositif which is
precise and effective. The alignment can only have a legal status
if it conforms with equitable principles and these principles give
primacy to geography and, in particular, the configuration of the
coasts abutting upon the maritime areas to be divided.
31. The dependence of the method of delimitation upon the
geographical circumstances bas been emphasized by the juris
prudence. Thus, in the Anglo-French Continental Shelf case, the
Court of Arbitration observed:
"96. In the pleadings mention bas been made of Articles 62
and 71 of the Revised Single Negotiating Text still under
negotiation at the Third United Nations Conference on the
Law of the Sea. These Articles make provision for the de
limitation, in the one case, the 200-mileexclusive economie
zone and, in the other, of the extended area of continental
shelf which it is proposed at the Conference to allow to
98 coastal States; and their texts, which have not yet been
adopted by the Conference, are still a matter of discussion.
Even so, this Court bas examined their provisions and it finds
no reason to suppose that, if they were applicable, they would
make any difference to the determination of the course of the
boundary in the present case. Those texts speak of delimitation
between "adjacent" or "opposite" States in accordance with
equitable principles as distinct cases; and they envisage that,
where appropriate, the equidistance or median line shaH be
employed, taking account of all the relevant circumstances.
Since it is the geographical circumstances which primarily
determine the appropriateness of the equidistance or any other
method of delimitation in any given case, the Revised Single
Negotiating Text would not appear to visualise the solution
of cases like the present one on principles materially different
from those applicable under the 1958 Convention or under
general international law. What the Court thinks evident,
however, is that the extension seawards of the maritime zones
of States, for which the Revised Single Negotiating Text
provides, cannot fail to increase the significancef the effects
of individual geographical features in deflecting the course
of a lateral equidistance boundary between "adjacent" States.
97. In short, this Court considers that the appropriation of
the equidistance method or any other method for the purpose
of effecting an equitable delimitation is a function or reflection
of the geographical and other relevant circumstances of each
particular case." (emphasis supplied). (International Law
Reports, Vol. 54, p.6 at p.66).
32. The distinguished Chamber of the Court in the Gulf of
Maine case formulated the legal approach to delimitation in the
following key paragraph:
"195. To retum to the immediate concems of the Chamber,
it is, accordingly, towards an application to the present case
of criteria more especially derived from geography that itfeels
bound to tum. What is here understood by geography is of
course mainly the geography of coasts, which bas primarily
99 aphysical aspect, to which may be added, in the second place,
a political aspect." (l.C.J. Reports 1984, p. 327, para. 195).
33. And in itsJudgmentin the ContinentalShelf case (Libyan
Arab Jamahiriya/Malta) the Court stated that:
"The pertinent general principle ... is that there can be no
question of "completely refashioning nature"; the method
chosen and its results must be faithfulto the actual geograph
ical situation."(l.C.J. Reports 1985, p. 45, para. 57).
(b) Judicial Authority
34. The use of the method of constructing the bisector of
an angle has the support of a respectable jurisprudence. An ana
logue of this method was adopted by the Arbitral Tribunal in the
Grisbadama case, in accordance with the inter-temporal law, in
the form of a line perpendicular to the general direction of the
coast: R.I.A.A., Vol. XI, pp. 159-160.
35. More significantly, in the Gulf of Maine case the Cham
ber adopted the bisector method in order to establish the signifi
cant first sector of the delimitation. The reasoning of the Court
is of particular pertinence for the present case and thus is worth
quoting in full:
"210. As it indicated in its comment on the line proposed by
Canada, the Chamber has objections as to the advisability -
or even the possibility - of making use, were it only in this
sector, of the technical method whereby a lateral equidistance
line, as defined by geometry and by the terms of paragraph
2 of Article 6 of the 1958 Convention on the Continental
Shelf, would bedrawn between the two adjacent coasts, and
it has two grounds for these objections. In the first place, the
Chamber must point out that a line drawn in accordance with
the indications given by that provision ("equidistance from
the nearest points of the baselines from which the breadth of
the territorial sea of each State is measured") might weil
epitomize the inherent defects of acertain manner ofinterpret-
100ing and applying the method here considered, as stressed in
paragraph 201 above; inasmuch as the likely end-result would
be the adoption of a tine ali of whose basepoints would be
located on a handful of isolated rocks, sorne very distant from
the coast, or on a few low-tide elevations: these are the very
type of minor geographical features which, as the Court and
the Chamber have emphasized, should be discounted if it is
desired that a delimitation line should result so far as feasible
in an equal division of the areas in which the respective mari
time projections of the two countries' coasts overlap."
"211. In the second place - and here is the main reason for
the Chamber's objections - the determination in the sector
envisaged of the course of a lateral equidistance line, from
whateverbasepoints establishedwouldencounter thedifficulty
of the persistent uncertainty as to sovereignty over Machias
Seal Island and the Parties' choice ofpoint A as the obligatory
point of departure for the delimitation line. Point A was taken
into consideration for the purposes of the Special Agreement
only as thepoint where the tines thenrepresenting in graphical
terms the Parties' respective daims happened to intersect.
Renee it is not, as it should be in order to constitute an
equidistance point, derived from two basepoints of which one
is in the unchallenged possession of the United States and the
other in that of Canada. And it is equally certain that point
A is not a point that can be located on the path of any
equidistance line traced by the Chamber or constitute the
starting-point of any such line."
"212. The Chamber is therefore of the opinion that, on these
grounds, and the better, moreover, to ensure the effective
implementation of the criterion by which it has every reason
to be guided, it is necessary torenounce the idea of employing
the technical method of equidistance. It considers that prefer
ence must be given to a method which, while inspired by the
same considerations, avoids the difficulties of application
pointed out above and is at the same time more suited to the
production of the desired result. The essential premise of the
operation, as the Chamber sees it, is to take note of the fact
that the point of departure of the delimitation line tobe drawn,
101 and hence of its first segment; must be point A and no other
point, whatever itsjustification. That understood, the Chamber
considers that the practical method to be applied must be a
geometrical one based on respect for the geographical situation
of the coasts between which the delimitation is to be effected,
and at the same time suitable for producing a result satisfying
the repeatedly mentioned criterion for the division of disputed
areas."
"213. Accordingly, to put the above requirements into practice,
one may justifiably draw from point A two lines respectively
perpendicular to the two basic coastal lines here to be con
sidered, namely the line from Cape Elizabeth to the inter
national boundary terminus and the line from that latter point
to Cape Sable. These perpendiculars form, at point A, on the
side an acute angle of about 82° and on the other a reflex
angle of about 278°. It is the bisector of this second angle
which the Chamber considers that it should adopt for the
course of the first segment of the delimitation line. The Cham
ber believes that this practical method combines the advan
tages of simplicity and clarity with that of producing, in the
instant case, a result which is probably as close as possible
to an egual division of the first area to be delimited. It also
believes that, in relation to the sector under consideration, the
application of this equitable criterion is not open to any
serious objections." (emphasis supplied) (l.C.J. Reports 1984,
pp. 332-33).
36. An approach of a similar character was adopted by the
distinguished Court of Arbitration in thGuinea- Guinea (Bissau)
Maritime Delimitation Case. The relevant paragraphs of the Award
are as follows:
"108. Une méthode valable pour le Tribunal consiste à
commencer par embrasser d'un coup d'Œil l'ensemble de la
région de l'Afrique occidentale et à rechercher une solution
tenant compte d'une façon globale de la forme de ses côtes.
Il s'agit alors non plus de se limiter au littoral court,mais
de considérer le littoral long.Or, tandis que le littoral continu
des deux Guinée - ou des trois pays en comptant la Sierra
102Leone- est plutôt concave, celui de l'Afrique de l'Ouest est
incontestablement convexe. Sous cette vision, le Tribunal
estime que la délimitationdes territoires maritimes à attribuer
aux Etats riverains pourrait se faire en suivant une des direc
tions qui tiennent compte de cette circonstance. Ces directions
seraient approximativement divergentes. Cette idée,qui dans
la présente affaire semble conduire à un résultat équitable,
condamne en soi le système des parallèles défendu par la
Guinéeet dont la limite de 10° 40' de latitude nord n'aurait
représenté qu'un exemple. Mais elle condamme aussi l'équi
distance telle qu'elle est vue par la Guinée - Bissau. Elle
oriente vers une délimitationqui s'intègre aux délimitations
actuelles ou futures de la région.
.....
"110. Un second systèmeconsisterait à utiliser la façade mari
time et à choisir pour cela une ligne droite reliant deux points
côtiers sur le continent. Cela aurait1'avantage de donner plus
d'importance à l'orientation généraledu littoral, au risque de
partir d'une droite traversant les îles et mêmeempiétant sur
le continent. Il y aurait deux façades possibles: soit une droite
joignant le cap Roxo à la pointe Sallatouk et mettant en jeu
les deux Guinéeseulement, soit une droite joignant la pointe
des Almadies (Senegal) au cap Shilling (Sierra Leone) et
impliquant donc deux pays tiers. Ce second système répond
le mieux à la circonstance que le Tribunal a retenue, à savoir
la configuration globale de la côte occidentale d'Afrique, et
la ligne pointe des Almadies - cap Shilling traduit cette cir
constance avec plus de fidélité."
"111. On entrevoit ainsi une délimitationéquitablequi consis
terait:
a) à suivre d'abord la "limit sud" de la convention de 1886,
c'est - à - dire la passe des Pilotes à partir de 1'embouchure
du Cajet et le parallèle de 10° 40' latitude nord, jusqu'à la
hauteur d'Alcatraz. Puisque, de cette façon, 1'île en question
n'aurait que 2,25 milles marins d'eaux territoriales vers le
nordet qu'il existe d'autant moins de motif de lui en accorder
103 plus dans cette direction que la "limite sud" marque le reven
dication maximale de la Guinéedans ses conclusions, le Tri
bunal considéreraitcomme équitablede lui attribuer au moins
vers l'ouest les 12 milles marins prévuspar la convention sur
le droit de la mer de 1982, sans toutefois tenir compte des
récifs.La "limite sud" pourrait donc êtreadoptéejusqu'à 12
milles à l'ouest d'Alcatraz;
b) à se diriger ensuite ver le sud- ouest suivant une direction
correspondant grosso modo à la perpendiculaire à la ligne
unissant la pointe des Almadies au cap Shilling. Cela donne
rait une ligne droite unique d'azimut 236°. Le Tribunal con
state que pareille ligne réduiraitau minimum les risques d'en
clavement et serait à cet égardplus satisfaisante que les per
pendiculaires aux autres lignes envisagées aux visaged in
paragraphes 109et 110 ci-dessus." (Ibid, parras. 108, 110and
11l)Y 0
110
· "108. In the Tribunal's view, a valid method consists oflooking at the whole
of West Africa and of seeking a solution which would take overall account of the
shape of its coastline. This would mean no longer restricting considerations to a
short coastline but to a long coastline. However, while the continuous coastline
of the two Guineas - or of the three countries where Sierra Leone is included -
is generally concave, that of West Africain general is undoubtedly convex. With
this in mind, the Tribunal considers that the delimitationritime territories to
be attributed to coastai States could be made following one of the directions which
takes this circumstance into account. These directions would be approximately
divergent. This idea, which in the present case would seem to offer an equitable
result,automaticallycondemnsthe systemof parallelsof latitude defendedby Guinea
and of which the limit represented by the parallel of 10° 40' north latitude would
have been just one example. However, it also condemns the equidistance method
as seen by Guinea-Bissau. It leads towards a delimitation which is integrated into
the present or future delimitations of the region as a whole.
[....
"Il O.A second system would consist of using the maritime facade and, for this
purpose, selecting a straight line joining two coastal points on the continent. This
would have the advantage of giving more weight to the general direction of the
coastline, at the risk of starting from a line crossing through islands and even
encroaching on the continent. There wouldbe two possible facades: one would be
a line joining Cape Roxo and Sallatouk Point and would concem only the two
Guineas; the other would be a line joining Almadies Point (Senegal) and Cape
Shilling (Sierra Leone) and would thus involve two third States. The second system
104 37. Both in the Gulf of Maine case and in the Guinea
Guinea (Bissau) case, thecourts concemed were using geometrical
methods in order to impose a solution in face of the geographical
complexities, which were linked with the further complication
presented by the position of the land boundary terminus. At the
same time the courts emphasize that the method chosen is 'based
on respect for the geographical situation of the coasts' in relation
to which the delimitation is to be effected.
38. These two decisions have a further aspect of relevance
for these proceedings. In both cases the status of the available
starting point was problematical: see the Judgment of Gulf of
Maine, above, para. 211, and see also the Award of the Tribunal
in the Guinea-Guinea (Bissau) case, paras. 105-107.
39. In the Guinea (Bissau) v. Senegal case, Judge Bedjaoui
was the only arbitrator to deal with the actual question of delimita-
is better suited to the circumstance chosen by theTribunal, i.e. the overall configura
tion of the West African coastline, and the Almadie's Point- Cape Shilling line
reflects this circumstance moreaithfully."
"Ill. This opens the possibility of an equitable delimitation which would consist
of:
a) First following the "southem Iimit" of the 1886 Convention, i.e. the Pilots'
Pass from the mouth of the Cajet River and the parallel of 10° 40' north latitude,
as far as the island of Alcatraz. Because in this way, the island in question would
have on!y 2.25 nautical miles of territorial waters to the north - and there is even
Jess reason to grant more in this direction in that the "southem Iimit" marked the
maximum daim by Guinea in its conclusions - the Tribunal would consider it
equitable to grant it, at !east towards the west, the 12 nautical miles provided for
in the 1982 Law of the Sea Convention, without having taking into account any
reefs. The "southem limit" could therefore be adopted as far as 12 miles west of
Alcatraz.
b) The line would then go in a southwesterly direction,being grosso modo perpen
dicular to the line joining Almadies Point and Cape Shilling. This would give just
one straight line bearing 236°. The Tribunal considers that such would reduce
the risk of enclavement to a minimum and, in this respect, would be more satis
factory than any line drawn perpendicular to the other !ines envisaged in paragraphs
109 and 110 above." (International. Law Reports, Vol. 77, p.635 at pp. 683-85).
105tion. In his carefully reasoned Dissenting Opinion Judge Bedjaoui
applied the bisector method in the following passages:
"145. The western front of the archipelago, represented by
a line drawn from Acudama point on Caravela Island to An
cumbe point on Orango Island, is, according to the expert
appointed by the Tribunal, approximately 33 miles long. This
length is on the whole comparable to the relevant coast of
Senegal (Casamance) which is 44 miles long, and does not
possess any islands. It would not be equitable to give to the
western front of the archipelago, stretching from Acudama
to Ancumbe, the same importance for the purpose ofdelimita
tion as to the continental coast of Senegal. This is why a half
effect should be sufficient.
"146. Accordingly, the appropriate course is to draw for that
purpose a line which bisects the angle having as its apex Cape
Roxo and as one of its sides the general direction of the
western front of the Bijagos Archipelgo (Roxo-Acudama,
260°), and as its other side the general direction of the main
land coast (Roxo-Catunco, 132°). This produces aline drawn
at azimuth 146°, thereby giving half-effect to the islands."
"147. The Republic of Senegal hasmaintained that theRepub
licof Guinea-Bissau has accepted aline lying at azimuth 240°
for the determination of the territorial sea of each of the two
States. If this is the case, the delimitation to be effected by
the arbitrator for the maritime spaces other than the territorial
sea bas to take as its starting point a point situated at the outer
lirnit of that territorial sea defined by a line drawn at 240°.
An arbitrator cannot of course decide ultra petita. In fact,
however, I see no indication anywhere of an acceptance by
Guinea-Bissau of azimuth 240° for its territorial sea. In its
submissions, which are binding upon it and also upon the
Tribunal, it has requested the application of the law of the
sea, i.e. the ruleof equidistance which, contrary to the 1960
Agreement, gives azimuth 247° for the territorial sea. For the
rest, neither in the pleadingsf theRepublic of Guinea-Bissau
nor in its oral argument has azimuth 240° been accepted by
it up to 12 miles, either expressly or tacitly. Consequent!y,
106 the question of ultra petita does not arise. The line to be
drawn will accordingly necessarily start from Cape Roxo
without taking into account azimuth 240°."
"148. It is now possible to draw the line which, in this ex
novo delimitation, constitutes the maritime boundary between
the Republic of Guinea-Bissau and the Republic of Senegal.
The line thus taken will bisect the angle having as its apex
Cape Roxo and as one of its sides the general direction of the
maritime front of Guinea-Bissau obtained after giving half
effect to its main islands (146°), and as the other side the
general direction of therelevant Senegalese coast (358°).This
produces a line drawn at azimuth 252°." (International Law
Reports, Vol. 83, p.1, at pp. 113-14).
(c) Doctrine
40. The literature, including the opinions of leading publi
cists, has for long recognised the aptitude of the bisector method
for the achievement of an equitable result in certain political and
geographical circumstances.
41. The major French authorityon thelaw of the sea, Gilbert
Gidel, approved the method of a perpendicular to the general
direction in the third volume of his great treatise, published in
1934. In his words:
"Faveur généralementrencontrée en pratique et en doctrine
par la solution de la ligne médianeperpendiculaire à la direc
tion généralede la côte. - La solution qui a la préférenceest
celle de la ligne médiane,c'est-à-dire la solution qui tend à
attribuer auxEtats limitrophes une égalepartie des eaux mari
times proches de la côte. La " ligne médiane"au sens étroit
serapporte aux cas où les voisins se font face vis-à-vis d'une
manièrecomplèteou partielle, c'est-à-dire dans les détroits,
les archipels ou les baies ..."
107 "Lorsqu'il s'agit de souverainetésqui sont au contact latéral
et non pas au contact de front, la solution de la ligne médiane
consiste à tracer aupoint frontièreterrestreune perpendiculaire
à la direction généralede la côte n'est donc qu'une modalité
spécialede la ligne médianeentendue au sens large ... " (foot
notes omitted) (Le droit international public de la merTome
III, Paris, 1934, pp. 768-69).
42. The solution proposed by Gidel is not formulated in
terms of the bisector of an angle. However, the solution he prefers
is closely related to the bisector method and is, in geometrical
terms, the bisector of an angle of 180°.
43. The Indian expert, Dr. S.P. Jagota, examines the Gulf
of Maine case without expressing any reservations about the
approach of the Chamber to the first sector of the delimitation:
see S.P. Jagota,Maritime Boundary, Dordrecht, 1985,pp. 313-14.
44. Similarly Professor Attard, in his leamed treatise on the
exclusive economie zone, expresses no reservations concerning
the method selected by the Chamber: see D.J.Attard, The Exclusive
Economie Zone in International Law, Oxford, 1987, p.242.
45. In his authoritative work on maritime delimitation, pub
lished in 1988, Professor Weil accepts the bisector method as
appropriate in certain circumstances. In his opinion:
"Quant à la méthodeappropriéepour obtenir la réduction
spatiale équilibréede chacune des deux projections en
concurrence sur le mêmeespace, il est dans la nature des
choses qu'elle ait le mêmecaractèreque le titre juridique
qui fonde ces projections: en d'autres termes, qu'elle soit
comme ce dernier d'ordre spatial. La méthode la plus
appropriée à cette fin est celle de 1'équidistance,dont le
caractèrespatialest indiscutable, puisque c'estprécisément
par référenceà la distance des deux côtes qu'elle déter
mine l'amputation que doit subir chacun des titres en
concurrence; même si elle touche au quantum de la dis
tance,la délimitationéquidistantelaisse intact le principe
de distance. Il semble bien, en outre, que, de toutes les
108 méthodes,c'est celle de 1'équidistancequi s'approche le
plus de l'objectif de la division égalede la zone de che
vauchement. Des étudestechniques seraient souhaitables
pour avoir une connaissance plus précisede1'effetde cette
méthodeà cet égard;les hommes de science pourraient
utilement assister la réflexionjuridique sur ce point."
"On ne saurait cependant méconnaîtreque la division de
la zone de chevauchement par parts àpeu prèségalespeut
êtreobtenue aussi par d'autres méthodes,"plus ou moins
différentesbien qu'elles procèdent au fond d'une même
inspiration" (1984, para. 200): la perpendiculaire, par ex
emple, ou la bissectrice de l'angle formépar les lignes
côtières. A certains égards, il s'agit là de variantes de
l'équidistance.Cela est vrai, en particulier, de la méthode
de la perpendiculaire à la direction générale de la côte, qui
a été préconiséeparfois dans le passépour la délimitation
de la mer territoriale, parce qu'entre côtes limitrophes
rectilignes elle aboutissait aumêmepartage en parts égales
de la zone de chevauchement que la ligne médiane entre
côtes opposées.Gidel, par exemple, voyait dans la perpen
diculaire une "modalitéspécialede la ligne médianeenten
due au sens large "(footnotes omitted). (Perspectives du
droit de la délimitationmaritime, 111is, Pedone, 1988, p.
64; and see also at page 293).
m The corresponding passages in the English edition read as follows: "As for
what method would be suitable to achieve a balanced spatial reduction of the two
overlapping areas, it is in the nature of things that it should have the same character
as the legal title on which the projections are based. In other words, like the latter,
it will be spatial.
For this purpose, the most appropriate method is thatquidistance, the
spatial nature of which is indisputable, since it is by reference to the distance
between the two coasts that it determines what reduction has to be made to each
of the two competing titles. Although it may affect the quantum, the equidistance
methodleaves the principleof distance intact. Moreover,of ail methods, equidistance
would seem to come closest to achieving the objective of an equal division of the
overlapping area. Technical studies wouldelpful here in order to establish more
precisely the effect of this method. This is a case where the scientists could give
the lawyers useful assistance."
"lt should not, however, be overlooked that a more or less equal division of
the overlapping area can be obtained by other methods, "differing from it in varying
109 46. In their essay in the work edited by Charney and
Alexander the Canadian experts Legault and Hankey adopt the
bisector method as a method of delimitation. In their words:
"c. Bisection of Angles Representing Coastal Fronts
Another means of modifying the equidistance method in order
to discount the effect of incidental coastal features and con
figurations on the course of the boundary is to construct two
lines, each representing the coastal front of one of the parties,
and then to bisect the angle between the two construction
lines."(Charney andAlexander (eds.), International Maritime
Boundaries, Vol. I, Dordrecht, 1993, p. 210).
47. The official manual published by the International
Hydrographie Organization includes the bisector method as one
of the methods "related to the "general direction" of thecoastline".
The relevant passage is this:
"A variant of the perpendicular is the bisector line. In this
method the general direction of the coast, or part of the coast,
of both the adjacent States, opposite States in certain circum
stances is determined. The delimitation line is then taken to
be the bisector of the angle formed by these two lines of
general direction at the land boundary terminus. This solution
is suited to a coast where the general direction changes mar
kedly at or near the boundary. Although superficially attract
ive, the solution may result in unbalanced areas on the ellip
soid." (InternationalHydrographieOrganization,SpecialPubli
cation No. 51, A Manual: Technical Aspects of the United
degree even while prompted by similar considerations", for example, the perpendicu
lar, or the bisector of the angle formed by the two coastlines. In sorne respects these
arejust variations on the equidistance theme. This is particularly the case with the
perpendicular to the general linethe coast, a method recommended in the past
for delimiting the territorial seas because, when used between adjacent straight
coasts, it achieves the same equal divisionoverlapping area as does the median
line between opposite coasts. Gide!, for example, saw the perpendicular as a
variant of the median line understood in its broad sense"." (footnote(Theitted)
lAw of Maritime Delimitation- RejlectionCambridge, 1989, pp. 58-9; and see
also atp. 276).
110 Nations Convention on the Law of the Sea, 1982, 2nded.,
Monaco, December 1990, p. 126, para. 6.3.4.6.); 3rded.,
Monaco, July 1993, para. 6.3.4.6.
48. The bisector method is also recognised as a form of
delimitation by Lucchini and VŒlckel, intheir substantial treatise:
Droit de la mer, Tome II, Vol. 1, Paris, pp. 143-5.
49. The availability of the bisector method is thus weil estab
lished both in the jurisprudence and in the doctrine.
(d) State Practice
50. The bisector method and its congenor, the perpendicular
to the general direction of the coast, are appropriate in certain
geographical situations and thus their incidence in State practice
is inevitably determined by geography. Eight episodes of state
practice, involving eighteen States and virtually every continent,
provide clear evidence of the role of the bisector method and its
associated techniques in producing an equitable result. The delimi
tations involved have not provoked protests related to the use of
these methods of delimitation.
51. The relevant agreements will be examined in temporal
sequence.
52. The first such delimitation took the formof an Exchange
of Notes between France and Portugal on 26 April 1960, regard
ing the territorial sea and continental shelf boundary between
Guinea (Bissau) and Senegal: see Charney and Alexander, op.
cit., Vol.1,p. 867 (Report Number 4-4); Limits in the Seas, U.S.
Dept. of State, No. 68. The 240° azimuth adopted bisects the angle
formed by lines approximating to the general directions of the
coast of Senegal and Guinea (Bissau), (see Figure X).
53. The second such agreement is the Seabed Boundary
Agreement between the Rulers of Sharjah and Umm al Qaywayn
concluded in 1964: see Charney and Alexander (eds.), Inter
national Maritime Boundaries, Vol. ll, pp. 1549-55 (Report Num-
ll1ber 7-10) (see Figure XI). The origins of the agreement are of
interest and these are described by Chamey and Alexander as
follows:
"Geography was a prime factor in delimiting the boundary
between Sharjah and Umm al Qaywayn. In 1963, the British
proposed a series of five consecutive continental shelfbound
aries between certainof the adjacent states (including enclaves
thereot) on the Trucial Coast as follows (from west to east):
(1) Dubai-Sharjah, (2) Sharjah-Ajman (south), (3) Sharjah
Ajman (north), (4) Sharjah-Umm al Qaywayn, (5) Umm al
Qaywayn-Ras Al Khaimah. Ali of these proposed boundaries
were delimited using the bisector of the angle formed by
drawing straight lines between the coastal terminal points of
the land frontiers."
"The British authorities thus used a single method of delimita
tion which they deemed to be appropriate to the geography
of the region for a comprehensive delimitation of continental
shelf boundaries between the Trucial States. However, only
Sharjah and Umm al Qaywayn accepted the British proposais."
(emphasis supplied) (at p. 1551).
54. The Offshore Boundary Agreement concluded between
Abu Dhabi and Dubaï on 18 February 1968 establishes a con
tinental shelf boundary which is roughly perpendicular to the
general direction of the coast: see Chamey and Alexander, op.
cit.,Vol. Il, p. 1475 (Report Number 7-1) (see Figure XII).
55. The fourth episode of state practice involves the two
treaties between the United States of America and the United
Mexican States, signed on 24 November 1976 and 4 May 1978
respectively: Chamey and Alexander, op. cit., Vol. 1, p.427
(Report Number 1-5). The second of these is not in force. The
two agreements produce a delimitation within the Gulf of Mexico
which, in the sector eastward to point GMW 4, is very similar
to a perpendicular to the general directionf the coast (see Figure
XIII).
112 56. The next example is provided by the Agreement between
the Government of Brazil and the Govemment of Uruguay Relat
ing to the Maritime Delimitation between Brazil and Uruguay,
concluded on 21 July 1972, and which entered into force on 12
June 1975: Charney and Alexander, op. cit., Vol. 1,p. 785 (Report
Number 3-4); Limits in the Sea, U.S. Dept. of State, No. 73. The
delimitation agreed upon involved aline nearly perpendicular to
the general direction of the coast: see Charney and Alexander,
p.788; Limits in the Sea, No. 73, p.3 (see Figure XIV).
57. The sixth example of state practice concems the Agree
ment between the Government of Argentina and the Govemment
of Uruguay Relating to the Delimitation of the River Plate and
the Maritime Boundary between Argentina and Uruguay, signed
on 19 November 1973, and which entered into force on 12 Febru
ary 1974: see Charney and Alexander, op. cit., Vol. 1, p.757
(Report 3-2), and Limits in the Seas, No. 64. The first sector of
the maritime boundary (from Point 23 to Point A) is aperpendicu
lar to the line adopted by the parties as the closing linef the Rio
de la Plata (see Figure XV).
58. The seventh episode of the state practice takes the form
of the Treaty Conceming Delimitation of Marine Areas and Mari
time Co-operation Between the Republic of Costa Rica and the
Republic of Panama signed on 2 February 1980, and which
entered into force on 11 February 1982: Charney and Alexander,
Vol. 1,p.537 (Report Number 2-6); Limits in the Seas, No. 97 (see
Figure XVI). The Geographer of the Department of State observes
in relation to the boundary in the Pacifie:
''Theboundary extends from the land boundary terminus at
Punta Burica southwestward to a point on the 5° parallel of
north latitude 200 nautical miles from Punta Burica."
[....
"Although the treaty states that this boundary also is amedian
line, it also is more akin to a perpendicular to the general
direction of the coast. To consider the boundary an equidistant
line one would have to disregard coastal irregularities and a
113 number of near-shore Panamanian islands and the Costa Rican
Isla del Coco, the latterof which is about 165 nautical miles
from the terminus of the maritime boundary." (Limits in the
Seas, pp. 4-5).
59. Chamey and Alexander adopt the same characterisation:
op. cit.,p.544.
60. The eighth episode of State practice consists of the
Agreement between the Govemment of Brazil and the Govemment
of France Relating to the Maritime Delimitation Between Brazil
and French Guiana concluded on 30 January 1981: see Chamey
and Alexander, op.cit., Vol.1,p. 777 (Report Number 3-3); I.L.M.,
Vol. 25 (1986), p. 367. The boundary established is perpendicular
to the general directionof the coasts of Brazil and French Guiana.
The Agreement entered into force on 19 October 1983 (see Figure
XVII).
D The Equitable Character of the Bisector Method in the
Present Case
(a) Introduction
61. In conclusion it is appropriate to review the elements
which dictate that the bisector method is weil qualified to achieve
an equitable result in the present case.
(b) The Method is an effective reflection of coastal relationships
62. In the frrst place the bisector method is an effective
reflectionof the coastal relationships prevailing in the present case.
The Court has consistent!y emphasised the primacy of the general
configuration of the coasts of the parties. Thus in its Judgment
in the Continental Shelf case (Tunisia/Libyan Arab Jamahiriya)
the Court observed that:-
"The coast of each of the Parties, therefore, constitutes the
starting line from which one has to set out in order to ascer-
114 tain how far the submarine areas appertaining to each of them
extend in a seaward direction, as well as in relation to neigh
bouring States situated either in an adjacent or opposite posi
tion. The only areas which can be relevant for the determina
tion of the claims of Libya and Tunisia to the continental shelf
in front of their respective coasts are those which can be
considered as lying either off the Tunisian or off the Libyan
coast. These areas form together the area which is relevant
to the decision of the dispute. The area in dispute, where one
claim 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." (l.C.J. Reports 1982, p. 61, para.
74).
63. In the same context the Chamber in the Gulf of Maine
case insisted on the primacy of coastal configuration:
"Regarding the choice and use of methods, one general ob
servation must be made. The delimitation line to be drawn
in a given area will depend upon the coastal configuration.
But the configuration of the Gulf ofMaine coastline, on which
the delimitation to be effected between the maritime and
submarine zones of the two countries depends throughout its
length, is such asto exclude any possibility of the boundary's
being formed by a basically unidirectional line, either over
the whole distance between the point of departure and the
terminal triangle or even over the sector between the point
of departure and the closing line of the Gulf."(l.C.J. Reports
1984, pp. 330-31, para. 205).
64. Similarly in the Continental Shelf Case (Libyan Arab
Jamahiriya/Malta), the Court reaffirmed the principle as follows:
"The nature of equ}tyis nowhere more evident than in these
well-established principles. ln interpreting them, it must be
borne in mind that the geography which is not to be
refashioned means those aspects of a geographical situation
most germane to the legal institution of the continental shelf;
and it is"the coast of each ofthe Parties", which "constitutes
the starting'line from which one has to set out in order to
115 ascertain how far the submarine areas appertaining to each
of them extend in a seaward direction, as weil as in relation
to neighbouring States situated either in an adjacent or op
posite position" (l.C.J. Reports 1982, p. 61, para. 74).
"ln a semi-enclosed sea like the Mediterranean, that reference
to neighbouring States is particularly apposite, for, as will be
shown below, it is the coastal relationships in the whole geo
graphical context that are to be taken account of and
respected." (l.C.J. Reports 1985, p. 40, para. 47).
65. The Dispositif in this case lists 'the circumstances and
factors tobe taken into account in achieving an equitable delimita
tion' and the first item is:
"the general configuration of the coasts of the parties "
(ibid., p. 57).
66. Professor Weil thus concludes:
"Renee, the primacy of geographie considerations is found
ineach and every maritime delimitation, regardless of whether
it concems territorial sea, continental shelf, fishery zone, or
exclusive economie zone; or whether it is negotiated and
agreed by the interested parties, or decided by a third party
in judicial or arbitral proceedings. Already in 1969 the Inter
national Court of Justice stated that it is 'necessary to examine
closely the geographie al configuration of the coastlines of the
countries whose maritime areas are to be delimited"(footnote
omitted) (Charney and Alexander (eds.), International Mari
time Boundaries, Vol. 1, Dordrecht, 1993, p. 116).
67. The bisector method translates the coastal frontages into
a figure, the prolongationsof the frontages as lines of construction,
which is aperfect representation of the overlapping coastal projec
tions of the Parties. The method thus does justice to the coastal
frontages of the parties.
68. Whilst the bisector method is not appropriate in ali situ
ations, as Professor Weil points out, it is applicable "dans le cas
116où deux lignes côtières nettement dessinées forment entre elles
un angle nettement déterminé" .12 (Perpectives du droit de la
délimitationmaritime, Pedone, Paris 1988, p. 65)
(c) The Principle of Egual Division of Areas of Convergence
69. As the graphie shows, the bisector method produces a
result which clearly satisfies the equitable criterion which was
confmned by the Chamber of the Court in the Gulf of Maine case.
The two most relevant passages are as follows:
"To return to the immediate concerns of the Chamber, it is
accordingly towards an application to the present case of
criteria more especially derived from geography that it feels
bound to turn. What is here understood by geography of
course mainly the geography of coasts, which bas primarily
a physical aspect, to which may be added, in the second place,
a political aspect. Within this framework, it is inevitable that
the Chamber'sbasic choice should favour a criterion long held
to be as equitable as it is simple, namely that in principle,
while having regard to the special circumstances of the case,
one should aim at an equal division of areas where the mari
time projections of the coasts of the States between which
delimitation is to be effected converge and overlap." (l.C.J.
Reports 1984, p. 327, para. 195).
"At this point, accordingly, the Chamber finds that it must
finally confmn its choice, which is to take as its starting point
the above-mentioned criterion of the division - in principle,
equal division - of the areas of convergence and overlapping
of the maritime projections of the coastlines of the States
concerned in the delimitation, a criterion which need only be
stated to be seen as intrinsically equitable.
112 The English edition reads as follows: "where two clearly distinguished coast
linesforma sharply defined angle": The Law of Maritime Delimitation- Rejlections,
Cambridge, 1989, p. 59.
117 However, in the Chamber's view, the adoption of this starting
point must be combined with the parallel adoption of the
appropriate auxiliary criteria in so far as it is apparent that
this combination is necessitated by the relevant circumstances
of the area concemed, and provided they are used only to the
extent actually dictated by this necessity. By this approach
the Chamber seeks to ensure the most correct application in
the present case of the fundamental rule of international law
applicable, which requires that any maritime delimitation
between States should be carried out in accordance with cri
teria that are equitable and are found more specifically to be
so in relation to the particular aspectsf the case under con
sideration." (ibid.,p. 328, para. 197).
70. The principle of equal division is stated in various
sections of the Judgment of the Chamber: see also pages 300-1,
para. 115;page 327, para. 195;pages 331-2, para. 209; page 334,
para. 217; and page 339, para. 228.
71. As the Gulf of Maine case clearly indicates, the equal
division of the overlapping areas can be obtained not only by
employing the method of equidistance, but by other methods,
including the bisector of the angle formed by the two coastlines.
72. In the circumstances of the present case, the bisector
method produces a result compatible with the equitable principle
of equal division.
(d) The Principle ofNon-encroachment by one party on the Natu
ral Prolongation of the Other
73. This is anequitableprinciplefrrstformulatedinthe North
Sea cases: see I.C.J. Reports 1969, pp. 46-47, para. 85; p. 53,
para. 101. The principle was affirmed by the Court in the Con
tinental Shelf case (Libyan Arab Jamahiriya/Malta), l.C.J. Reports,
p. 39, para. 46. The editors of Oppenheim's International Law
describe it as "a primary requirement of equity": Oppenheim's
International Law, 9th ed., Vol. 1,edited by Sir Robert Jennings
and Sir Arthur Watts, London, 1992, p. 779.
118 74. The fundamental requirement of equity is that a delimita
tion line cannot pass too close to one of the coasts involved. Thus,
in the words of Judge Lachs, President of the Arbitration Tribunal
in the Guinea/Guinea-Bissau Award:
"Aux circonstances économique,les Parties ont liéune circon
stance tiréede la sécurité,laquelle n'est pas sans intérêtb ,ien
qu'il convienne de souligner que ni la zone économiqueex
clusive, ni le plateau continental ne sont des zones de souve
raineté. Cependant les implications que cette circonstance
aurait pu avoir sont déjàrésoluespar le fait que, dans la solu
tion qu'il a dégagée,le Tribunal a tenu à ce que chaque Etat
contrôle les territoires maritimes situésen face de ses côtes
et dans leur voisinage. Cette préoccupation a constamment
guidéle Tribunal dans sa recherche d'une solution équitable.
Son objectif premier a étéd'éviterque, pour une raison ou
pour une autre, une des Parties voie s'exercer en face de ses
côtes et dans leur voisinage immédiatdes droits qui pourraient
porter atteinte à son droit au développementou compromettre
113
sa sécurité."(ibid, para. 124).
75. Of particular significance in the present context is the
applicability of the principle of non-encroachment in relation to
the delimitation of a singlemaritime boundary and not exclusively
to the delimitation of continental shelf areas. Thus the principle
was affrrmed by the Chamber in the Gulf of Maine case: see the
Judgment, l.C.J. Reports 1984, pp. 312-13, para. 157. And it was
11· The English translation reads as follows: "To the economie circumstances, the
Parties linked a circumstance concemed with security. This is not without interest,
but it must be emphasized that neither the exclusive economie zone nor the continen
tal shelf are zonessovereignty. However, the implications that this circumstance
might have had were avoided by the fact that, in its proposed solution, the Tribunal
has taken care to ensure that each State controls the maritime territories situated
opposite its coasts and in their vicinity. The Tribunal has constantly been guided
by its concemto find an equitable solution. Its prime objective has been to avoid
that either Party, for one reason or another, should see rights exercised opposite
its coast or in the immediate vicinity thereof, which could prevent the exercise of
its own right to development or compromise its security." (International Law
Reports, Vol. 77,p. 636 at p. 689, para. 124).
119also affirmed, and applied, by the distinguished Court of Arbitra
tion in the Guinea-Guinea (Bissau) Award, above, paragraph 124.
76. In the geographical circumstances of the present case,
the bisector method produces a line which avoids a result which
compromises the principle of non-encroachment.
(e) The Principle of Preventing, as far as possible, any eut-off
of the Seaward projection of the coast of either of the States
Concemed
77. This principle was propounded in the Judgment in the
North Sea Continental Shelf cases: see l.C.J. Reports 1969, pp.
17-18, para. 8. The principle of avoiding any eut-off is obviously
a close relative of that of non-encroachment.
78. Once again, it is clear that this principle applies in rela
tion to a single maritime boundary and not exclusively to the
delimitation of continental shelf areas. Thus the principle was
affmned and applied in the Gulf of Maine case: see /.C.J. Reports
1984, pp. 298-9, para. 110; pp. 312-13, para. 157; p. 328, para.
196; and p.335, para. 219. The principle was also applied to the
single maritime boundary delimitation effected by the Court of
Arbitration in the Guinea-Guinea (Bissau) case, International Law
Reports, Vol. 77, p. 635 at pp. 680-1, paras. 102-3.
(f) The Method and the Result must be consistent with the Con
cepts underlying the Attribution of Legal Title to Maritime
Areas
79. It is also axiomatic that the method of delimitation and
the result should be consistent with the concepts of legal title
applicable. In the Judgment of the Court in the Continental Shelf
(Libyan Arab Jamahiriya/Malta) case, this relationship is
explained clearly in the following passage:
"61. The Court has little doubt which criterion and method
it must employ at the outset in order to achieve a provisional
120 position in the present dispute. The criterion is linked with
the law relating to aState's legal title to the continental shelf.
As the Court has found above, the law applicable to the
present dispute, that is, to claims relating to continental
shelves located less than 200 miles from the coasts of the
States in question, is based not on geological or
geomorphological criteria, but on a criterion of distance from
the coast or, to use the traditional term, on the principle of
adjacency as measured by distance. It therefore seems logical
to the Court that the choice of the criterion and the method
which it is to employ in the first place to arrive at a provi
sional result should be made in a manner consistent with the
concepts underlying the attribution of legal title"(J.C.J. Reports
1985, pp. 46-7).
80. This relationship bad already been emphasized by the
Court in the Aegean Sea case. The Court then stated that:
"it is solely by virtue of the coastal State's sovereignty over
the land that rights of exploration and exploitation in the
continental shelf can attach toit, ipsojure, under international
law. In short, continental shelfrights are legally both an ema
nation from and an automatic adjunct of the territorial sover
eignty of the coastal State." (1.C.J.Reports 1978, p. 36, para.
86).
81. It is reasonable to assume that these legal considerations
apply to the process of determining a single maritime boundary.
(g) Conclusion
82. The Government of Nicaragua subrnits that in the geo
graphical circumstances of the present case the bisector method
is conspicuously the most appropriate method for achieving an
equitable result. Because of the particular characteristics of the
area in which the land boundary intersects with the coast, and for
other reasons, the technical method of equidistance is not feasible.
In this respect, there is a useful comparison with the situation that
the Chamber faced in the Gulf of Maine case: see above para. 35.
121 83. The bisector method avoids the technical and political
difficulties, and effectively reflects the major elements of the
pertinent coastal geography. In addition it achieves a result that
is as close as possible to an equal division of the area to be
delimited.
122 IX : EQUITABLE CRITERIA CONFIRMING
THE EQUITABLE RESULT PRODUCED BY
THE BISECTOR METHOD
A. Introduction
1. In the present Chapter of the Memorial the equitable
characterof the delimitationproposedabove(ChapterVill, Section
C) will be assessed in the light of additional criteria: namely, the
incidence of natural resources in the disputed area, the principle
of equitable access to the natural resources of the disputed area,
the geology and geomorphology of the Nicaraguan Rise, security
considerations, the relationship of the bisector method and
equidistance in the present case, and the treatment it gives to islets
and cays on their merits; each of these elements being generally
recognised asrelevantcircumstances in theprocess ofdelimitation.
B. The Incidence of Natural Resources in the Disputed Area:
a Relevant Circumstance
2. Since the North Sea Continental Shelf cases it has been
recognised that the incidencef natural resources in the disputed
area may constitute a relevant circumstance affecting a delimita
tion. In the Dispositif in the North Sea cases the Court specified
"the factors to be taken into account" to include the natural
resources of the continental shelf areas involved "so far as known
or readilyascertainable": l.C.J. Reports 1969, p.4 at pp. 53-4.
3. In its Judgment in theContinental Shelf case (Tunisia/
Libyan Arab Jamahiriya) the Court observed that:
"As to the presence of oil wells in an area to be delimited,
it may, depending on the facts, be an element to be taken into
account in the process of weighing ali relevant factors to
achieve an equitable result."(l.C.J. Reports 1982, p.18 at pp.
77-8, para. 107).
123 4. The I.CJ. reaffirmed this view in the Libya-Malta case.
In that case, the Court observed:
''Thenatural resources of the continental shelf under delimita
tion "so far as known or readily ascertainable" might weil
constitute relevant circumstances which it would be reasonable
to take into account in a delimitation, as the Court stated in
the North Sea Continental Shelf cases...).Those resources are
the essential objective envisaged by States when they put
forward claims to sea-bed areas containing them". (/.C.J.
Reports 1985, p. 13 at p. 41, para. 50).
5. The Award of the Court of Arbitration in the Guinea -
Guinea (Bissau) case (1985) is also relevant. The relevant passages
are complex and thus require full quotation:
"121. Les Parties ont invoquéles circonstances économiques
en les qualifiant diversement et en appuyant leurs thèses
respectives d'exemples relatifs notamment à leur économie,
à l'insuffisance de leurs ressources et à leurs plans en vue de
leur développement. Elles ont discutéde questions relatives
au transport maritime, à la pêche,aux ressources pétrolières,
etc.,et la Guinée-Bissau a fait valoir en particulier l'intérêt
que pourrait présenter pour elle à 1'avenir le libre accès au
port de Babu par le chenal d'Orango et l'estuaire du rio
Grande."
"122 Le Tribunal constate gue la Guinéeet la Guinée-Bissau
sont deux Etats en développement, confrontés1 'un et 1'autre
à de grandes difficultés économiques et financières qu'une
augmentation des ressources provenant de la mer pourrait
atténuer.Chacun d'eux aspire à juste titre à tirer de ses riches
ses présentes ou potentielles de juste profits au bénéficede
son peuple. Certes, pas plus que la Court international de
Justice en l'affaire dulateau continental (Tunisie/Jamahiriya
arabe libyenne) (l.C.J. Reueil 1982, pp. 77-78, paragraphe
107), le Tribunal n'a acquis la conviction que les problèmes
économiques constituent des circonstances permanentes à
prendre en compte en vue d'une délimitation. Puisque seule
une évaluation actuelle est du ressort du Tribunal, il ne serait
124nijuste ni équitablede fonder une délimitationsur l'évaluation
de donnéesqui changent en fonction de facteurs dont certains
sont aléatoires.
"123. Certains Etats peuvent avoir étédessinéspar la nature
d'une manièrefavorable à l'établissementde leurs frontières
ou à leur développementéconomique;d'autres peuvent avoir
étédésavantagés.Les frontières fixéespar l'homme ne de
vraient pas avoir pour objet d'augmenter les difficultés des
Etats ou de compliquer leur vie économique.Il est vrai que
le Tribunal n'as pas le pouvoir de compenser les inégalités
économiquesdes Etat intéressés en modifiant une délimitation
qui lui semble s'imposer par le jeu de considérations objec
tives et certaines. Il ne saurait non plus accepter que les cir
constances économiquesaient pour conséquencede favoriser
1'une des Parties au détrimentde 1'autre en ce qui concerne
cette délimitation. Il ne peut toutefois complètement perdre
de vue la légitimitédes prétentions en vertu desquelles les
circonstances économiquessontinvoquées,ni contester le droit
des peuples intéressésà un développement économique et
social gui leur assure la jouissance de leur plein dignité.Le
Tribunal pense que ces préoccupationséconomiques si légi
timement avancéespar les Parties doivent pousser tout naturel
lement celles-ci à une coopérationmutuellement avantageuse
susceptible de les rapprocher de leur objectif qui est le déve
loppement."
"124. Aux circonstances économiques,les Parties ont liéune
circonstance tiréede la sécuritél,aquelle n'est pas sans intérêt,
bien qu'il convienne de souligner que ni la zone économique
exclusive, ni le plateau continental ne sont des zones de sou
veraineté.Cependant les implications que cette circonstance
aurait pu avoir sont déjàrésoluespar le fait que, dans la solu
tion qu'il a dégagée,le Tribunal a tenu à ce que chaque Etat
contrôle les territoires maritimes situésen face de ses côtes
et dans leur voisinage. Cette préoccupation a constamment
guidéle Tribunal dans sa recherche d'une solution équitable.
Son objectif premier a étéd'éviterque, pour une raison ou
pour une autre, une des Parties voie s'exercer en face de ses
côtes et dans leur voisinage immédiatdes droitsqui pourraient
125 porter atteinte à son droit au développementou compromettre
sa sécurité."(emphasis supplied) (footnotes omitted) (Ibid at
para. 121-124). 114
11· The English text reads as follows:
"121. The Parties have invoked economie circumstances, have qualified them in
various ways and have based their respective arguments on examples relating for
the most part to their economy, their lack of resources and their development plans.
They have put forward arguments relating to maritime transport, fishing, petroleum
resources, etc., and Guinea-Bissau has mentioned its particular interest in having
future free access to the portof Buba by the Orango channel and the Rio Grande
estuary."
"122 The Tribunal has taken note that both Guinea and Guinea-Bissau are develop
ing countries, both being confronted with considerable economie and financial
difficulties which increased resources from the sea could help to attenuate. Both
of them justly aspire to obtaining fair profits from this present or potential wealth
for the benefit of their peoples. However, this Tribunal has not, any more than the
International Court of Justice in the Tunisia/Libya case (l.C.J. Reports 1982, pp.
77-78, paragraph 107), acquired the conviction that economie problems constitute
permanent circumstances to be taken into account for purposes of delimitation.
"As the Tribunal can be concemed only with a contemporary evaluation, it would
be neither just nor equitable to base a delimitation on the evaluation of data which
changes in relation to factors that are sometimes uncertain."
"123. Sorne States may have been treated by nature in a way that favours their
boundaries or their economie development; others may be disadvantaged. The
boundaries fixed by man must not be designed to increase the difficulties of States
or to complicate their economie !ife. The fact is that the Tribunal does not have
the power to compensate for the economie inequalities of the States concemed by
modifying a delimitation which it considers is called for by objective and certain
considerations. Neither can it take into consideration the fact that economie circum
stances may lead to one of the Parties being favoured to the detriment of the other
where this delimitation is concemed. The Tribunal can nevertheless not complete!y
!ose sightof the legitimate daims by virtue of which economie circumstances are
invoked, nor contest the rightof the peoples concemed to a leve! of economie and
social development which fully preserves theirdignity.The Tribunal isof the opinion
that the economie preoccupations so legitimately put forward by the Parties should
quite naturally encourage them to consider mutually advantageous cooperation with
a view to achieving their objective, which is the development of their countries."
"124. To the economie circumstances, the Parties linked a circumstance concemed
with security. This is not without interest, but it must be emphasised that neither
the exclusive economie zone nor the continental shelf are zones of sovereignty.
However, the implications that this circumstance might have had were avoided by
126 6. The factors invoked by President Lachs and his distin
guished colleagues, Judges Bedjaoui and Mbaye, must apply in
the circumstances of the present case.
C. The Incidence of Fisheries and Hydrocarbons in the
Disputed Area
7. As Nicaragua has indicated already in the introduction
to the present Memorial, the object of the present proceedings is
to establish a stable basis for the activities of the two parties and
their nationals in a region with an abundance of natural resources
and rich fisheries. These fisheries have a correlation with the
geomorphology of the Nicaraguan Rise, including the Llanuras
de Cayo Gorda, and the Gran Llanura de Banco Rosalinda.
8. A similar correlation can be assumed to exist in relation
to the incidence of oil and natural gas.
9. As a developing State with pertinent coastal fronts and
a natural prolongation in the form of the Nicaraguan Rise, Nica
ragua has a legitimate expectation that any delimitation willlead
to an equitable result, that is, a result which necessarily takes
account of the incidence of natural resources. The alignment based
upon the bisector method produces a conspicuously equitable result
in this context. As the graphie shows, the bisector results in an
equitable division of the Nicaraguan Rise (see Figures II and III.a
and XVIII).
the fact that, in its proposed solution, the Tribunal has taken care to ensure that each
State controls the maritime territories situated opposite its coasts and in their vicinity.
The Tribunal has constant!en guided by its concem to find an equitable solution.
lts prime objective has been to avoid that either Party, for one reason,
should see rights exercised opposite its coast or in the immediate vicinity thereof,
which could prevent the exerciseits own right to development or compromise
its security." (emphasis supplied) (footnotes (lntemationall..aw Reports,
Vol. 77, p.635 at pp. 688-9)
127D. The Principle ofEquitable Accessto the Natural Resources
of the Disputed Area.
10. In addition to the incidence of natural resources as a
relevant circumstance, there is the recently formulated principle
of equitable access to the natural resources of the disputed area.
In truth, the two principles are logically interrelated.
11. The Award of the Court of Arbitration in the Guinea
Guinea (Bissau) case (above, para. 5) contains reference to con
siderations which are dosely related to the concept of equitable
access. The emphasis on the right to economie development in
that Award must be presumed to rest on the premise that there
is an equal right to development.
12. In any event the first formulation of the principle of
equitable access in terms appears in the Judgment of the Court
in the Jan Mayen case. The mostrelevant passages are asfollows:
"72. The Court now tums to the question whether access to
the resources of the area of overlapping daims constitutes a
factor relevant to the delimitation. So far as sea-bed resources
are concemed, the Court would recall what was said in the
Continental Shelf (Libyan Arab Jamahiriya/Malta) case:
''Thenatural resources of the continental shelf under delimita
tion "so far as known or readily ascertainable" might weil
constituterelevantcircumstanceswhich itwouldbe reasonable
to take into account in a delimitation, as the Court stated in
the North Sea Continental Shelf cases (l.C.J. Reports 1969,
p. 54, para 101(0) (2)). Those resources are the essential
objective envisaged by States when they put forward daims
to sea-bed areas containing them." (l.C.J. Reports 1985, p.
41, para. 50.)"
"Little information has however been given to the Court in
thatrespect, althoughreference has been made to the possibil
ity of there being deposits of polymetallic sulphides and
hydrocarbons in the area."
128"73. With regard to fishing, both Parties have emphasized the
importance of their respective interests in the marine resources
of the area ..."
[....
"75. As has happened in a number of earlier maritime de
limitation disputes, the Parties are essentially in conflict over
access to fishery resources: this explains the emphasis laid
on the importance of fishing activities for their respective
economies and on the traditional character of the different
types of fishing carried out by the populations concemed. In
the Gulf of Maine case, which concemed a single maritime
boundary for continental shelf and fishery zones, the Chamber
dealing with the case recognized the need to take account of
the effects of the delimitation on the Parties' respective fishing
activities by ensuring that the delimitation should not entail
"catastrophic repercussions for the livelihood and economie
well-being of the population of the countries concemed"
(l.C.J. Reports 1984, p. 342, para. 237). In the light of this
case-Law, the Court has to consider whether any shifting or
adjustment of the median line as fishery zone boundary, would
be required to ensure equitable access to the capelin fishery
resources for the vulnerable fishing communities concemed."
"76. It appears to the Court that the seasonal migration of the
capelin presents a pattern which, north of the 200-mile line
claimed by Iceland, may be said to centre on the southem part
of the area of overlapping claims, approximately between that
line and the parallel of 72° North latitude, and that the de
limitation of the fishery zone should reflect this fact. It is clear
that no delimitation in the area could guarantee to each Party
the presence in every year of fishable quantities of capelin
in the zone allotted to it by the line. It appears however to
the Court that the median line is too far to the west for Den
mark to be assured of an equitable access to the capelin stock,
since it would attribute to Norway the whole of the area of
overlapping claims. For this reason also the median line thus
requires to be adjusted or shifted eastwards (cf. Paragraph 71
above)."
129 [.....
"90. The Court has found (paragraph 44 above) that it is
bound to apply, and it has applied, the law applicable to the
continental shelf and the law applicable to the fishery zones.
Having done so, it has arrived at the conclusion that the
median line provisionally drawn, employed as starting-point
for the delimitation of the continental shelf and the fishery
zones, must be adjusted or shifted so as to attribute a larger
area of maritime spaces to Denmark. So far as the continental
shelf is concemed, there is no requirement that the line be
shifted eastwards consistently throughout its length: if other
considerations might point to another form of adjustment, to
adopt it would be within the measure of discretion conferred
on the Court by the need to arrive at an equitable result. For
the fishery zones, equitable access to the resources of the
southem part of the area of overlapping claims has to be
assured by a substantial adjustment or shifting of the median
line provisionally drawn in that region. In the view of the
Court the delimitation now tobe described, whereby the posi
tion of the delimitation lines for the two categories of mari
time spaces is identical, constitutes, in the circumstances of
this case, a proper application both of the law applicable to
the continental shelf and of that applicable to the fishery
zones."
[......
"92. The southemmost zone 1,corresponds essentially to the
principal fishing area referred to in paragraph 73 above. In
the view of the Court, the two parties should enjoy equitable
access, to the fishing resources of this zone ..." (emphasis
supplied) (l.C.J. Reports 1993, pp. 70-72, 79).
13. In the present case the line based upon the bisector
method produces aresult which satisfies the criterion of equitable
access to the resources located in the area of Nicaraguan Rise.
130E. The Geologyand Geomorphology of the Nicaraguan Rise
14. The single maritime boundary, whose course the Court
is asked to determine by Nicaragua, is located wholly within the
Nicaraguan Rise. This location provides a further confirmation
of the equitable character of theboundary proposed by Nicaragua.
As was noted in Chapter II, the Nicaraguan Rise is a wide tri
angular ridge, extending from Honduras and Nicaragua to
Hispaniola, bearing the island of Jamaica and separating the Cay
man Basin from the Colombian Basin. In geological terms, the
Nicaraguan Rise canbe classified as a microcontinent. Microconti
nents are, as their name indicates, of continental origin and occur
in all ocean basins. These continental fragments are isolated from
major continental land masses. Little is known about why or how
this process occurred.
15. The triangular configuration of the Nicaraguan Rise is
reflected in the geomorphology of the seabed in the Western
Caribbean Sea. This is illustrated by the location of the 200 metre
isobath (see Figure Il) which indicates the central part of the
Nicaraguan Rise, and by the contours of the Nicaraguan Rise as
indicated on a bathymetrie chart, see Figure III and Figure A in
Volume II (maps ). Along the westernedge of the Nicaraguan Rise,
the 200 isobath and the edge of the Rise are relatively close to
the continental coast ofHonduras. Due totheir general orientation
and the east west orientation of the Honduran mainland coast, the
isobath and the edge of the Rise move further away from the
continent further east. A similar situation exist along the southem
edge of the Nicaraguan Rise. In this case, the orientation of the
mainland coast of Nicaragua is generally north south and moving
north the 200 meter isobath and the outer edge of the Rise become
more distant from the coast, as they head in a northeasterly direc
tion. The areas within the 200 meter isobaths can be contained
in a roughly triangular shape, with its apex in Rosalind Bank. The
edges of the Nicaraguan Rise as reflected in the seabed morpho
logy continue further out into the Caribbean Sea, running to the
north and south of the island of Jamaica.
16. If a bisector is traced between either the 200 meter
isobaths or the outer edges of the Nicaraguan Rise, it would have
131a direction that is grosso modo the same as the bisector based on
coastal geography advanced by Nicaragua as representing the
course of the single maritime boundary (see Figures II, III.a and
XVIIT).It is submitted that this is a further indication of the equit
able character of the latter line.
17. lt is recognized by Nicaragua that this Court has rejected
the view that geologie or geomorphologie discontinuities of the
seabed can be used to establish the location of maritime bound
aries within the 200 nautical mile limit. However, the present
argument of Nicaragua is basically different, namely that the
Nicaraguan Rise is one single feature shared by Nicaragua and
Honduras, which is characterized by the absence of any natural
dividing lines.
18. Support for the argument that the unitary character of
the sea-bed has to be respected in dividing areas of overlapping
claims to maritime zones is found in a number of pronouncements
of the jurisprudence. Thus, the Tribunal in the Guinea/Guinea
Bissau Arbitration observed that
"les variations du relief du plateau continental dans la
présenteespèceet celles de la nature de son terrain ne sont
pas assez connues en l'étatactuel de la recherche, et sur
tout pas assez marquées,pour constituer des facteurs sépa
rateurs valables. Le plateau continental en face des deux
Guinée est un. Il doit donc êtredélimitécomme tel."115
(Reports of International Arbitral Awards, Vol. XIX, p.
192, para. 117)
11· The English translation reads:
"the variations in the relief of the continental shelf in the present case and the
variations in the natureits terrain are not weil enough known and above
ali not sufficiently characterized, to constitute valid separative factors, given
the present state of research. The continental shelf opposite the two Guineas
is one and the same. lt must therefore be delimited as such." (International
Boundary Cases: The Continental Shelf,mbridge, 1992, Vol. Il, p. 1352,
para. 117)
132 19. Likewise, in the award in the Canada/France Maritime
Delimitation the Court of Arbitration observed that the continental
shelf in this area is a continuum characterized by the unity and
uniformity of the whole sea-bed, "from the Arctic to Florida", as
admitted by Canada and recognized by the Chamber of the Inter
national Court of Justice in the Gulf of Maine case. In that case
the Chamber concluded that "the continental shelf of the whole
area is no more than an undifferentiated part of the continental
shelf of the eastern seaboard of North America" (para. 45). Since
it is all one shelf it cannot be considered as exclusively Canadian.
Each coastal segment has its share of shelf. (International Law
Reports, Vol. 95, p. 665, para. 46)
20. Finally, reference can be made to the conclusion of Evans
in respect of the relevance of natural features in the water-column
or the seabed as an element in the delimitation process:
"Natural features, be they in the water column or on a part
of the seabed, may produce natural boundaries, but they do
not produce boundary lines that can be drawn on a map. At
best, they tend to indicate boundary zones." (Evans, Relevant
Circumstances and Maritime Delimitation, Oxford, 1989, p.
118).
21. The Nicaraguan Rise, as reflected in its geomorphological
alignment, can be considered to constitute such a boundary zone.
As such, its alignment does not mandate a boundary, but it does
confirm the equitable nature of the course of the boundary arrived
at on the basis of other considerations. This boundary proposed
by Nicaragua respects the unitary character of the Nicaraguan Rise,
by dividing the Rise in approximately equal halves between Nica
ragua and Honduras. In view of the general equality of the coastal
fronts of Nicaraguan and Honduras facing the submerged parts
of the Nicaraguan Rise, such an equal division is inherently equit
able (see also l.C.J. Reports 1969, p. 50, para. 91).
133F. Security Considerations
22. International tribunats have given firm recognition to the
relevance of security considerations to the assessment of the
equitable character of a delimitation.
23. The principle was expressed and applied by the distin
guished Court of Arbitration in the Guinea-Guinea (Bissau) case.
In the words of the Court:
"124. Aux circonstances économiques, les Parties ont liéune
circonstance tiréede la sécuritél,aquelle n'est pas sans intérêt,
bien qu'il convienne de souligner que ni la zone économique
exclusive, ni le plateau continental ne sont des zones de
souveraineté.Cependant les implicationsque cette circonstance
aurait pu avoir sont déjàrésoluespar le fait que, dans la solu
tion qu'il a dégagée,le Tribunal a tenu à ce que chaque Etat
contrôle les territoires maritimes situésen face de ses côtes
et dans leur voisinage. Cette préoccupation a constamment
guidéle Tribunal dans sa recherche d'une solution équitable.
Son objectif premier a étéd'éviterque, pour une raison ou
pour une autre, une des Parties voie s'exercer en face de ses
côtes et dans leur voisinage immédiatdes droits qui pourraient
porter atteinte à son droit au développementou compromettre
sa sécurité."(emphasis supplied) (footnotes omitted) (Ibid at
para. 121-124). 116
24. The principle has also been recognised by this Court in
the Libya/Malta case (l.C.J. Reports 1985, p. 42, para. 51), and
11· "To the economie circumstances, the Parties linked a circumstance concerned
with security. This is not without interest, but it must be emphasized that neither
the exclusive economie zone nor the continental shelf are zones of sovereignty.
However, the implications that tlùs circumstance might have had were avoided by
the fact that, in its proposed solution, the Tribunal has taken care to ensure that each
State controls the maritime territories situated opposite its coasts and in their vicinity.
The Tribunal has constantly been guided by its concern to find an equitable solution.
Its prime objective has been to avoid that either Party, for one reason or another,
should see rights exercised opposite its coasts or in the immediate vicinity thereof,
which could prevent the exercise its own right to development or compromise
its security." (International Law Reports, Vol. 77,, para. 124).
134again in the Jan Mayen case (ibid., 1993, pp. 74-5, para. 81). In
the latter Judgment the Court affirmed that the principle applied
to aU maritime delimitations:
"Norway has agreed, in relation to the Danish claim to a 200-
mile zone off Greenland, that
"the drawing of aboundary doser to one State than to another
would imply an inequitable displacement of the possibility
of the former State to protect interests which require protec
tion"
lt considers that, while courts have been unwilling to allow
such considerations of security to intrude upon the major task
of establishing a primary boundary in accordance with the
geographical criteria, they are concemed to avoid creating
conditions of imbalance. The Court considers that the observa
tion in the Libya/Malta Judgment (1C.J. Reports 1985, p. 42,
para. 51) that "security considerations are of course not un
related to the concept of the continental shelf', constituted
a particular application, to the continental shelf, with which
the Court was then dealing, of a general observation concem
ing all maritime spaces. In the present case the Court has
already rejected the 200-mile line. In the Continental Shelf
(Libyan Arab Jamahiriya/Malta) case, the Court was satisfied
that
"the delimitation which will result from the application of the
present Judgment is ... not so near to the coast of either Party
as to make questions of security a particular consideration in
the present case" (1.C.J. Reports 1985, p. 42, para. 51).
The Court is similarly satisfied in the present case as regards
the delimitation to be described below."
25. The reasoning set forth by the Court of Arbitration in
the Guinea/Guinea-Bissau case applies very aptly to the political
and geographical circumstances of the present case. The bisector
method produces an alignment which effectively ensures 'thateach
State controls the maritime territories situated opposite toits coasts
135and in their vicinity'. In contrast, the alignment espoused by
Honduras (see para. 11,Chapter V) is conspicuously incompatible
with this principle of security and with the protection of the legiti
mate interests of Nicaragua.
G. The Relationship of the Bisector Method and Equidistance
in the Present Case
26. For reasons explained elsewhere (Chapters II, VIII and
X) the application of the equidistance method would be artificial
in the geographical circumstances of the present case. This ap
proach does not imply that the equidistance method does not have
virtues in appropriate circumstances. As Professor Weil observes:
"Il semble bien, en outre, que, de toutes les méthodes,c'est
celle de l'équidistancequi s'approche le plus de l'objectif de
la division égalede la zone de chevauchement." 117(Perspec
tives du droit de la délimitationmaritime. Pedone, Paris, 1988
p. 64)
27. But Professor Weil goes on to say:
"On ne saurait cependant méconnaître que la division de la
zone de chevauchement par parts à peu prèségalespeut être
obtenue aussi par d'autres méthodes, "plus ou moins diffé
rentes bien qu'elles procèdent au fond d'une mêmeinspira
tion", la perpendiculaire, par exemple, ou la bissectrice de
l'angle formé par les lignes côtières. A certains égards, il
s'agit là de variantes de 1'équidistance.Cela est vrai, en parti
culier, de la méthode de la perpendiculaire à la direction
généralede la côte qui a étépréconiséeparfois dans le passé
pour la délimitationde la mer territoriale, parce qu'entre côtes
limitrophes rectilignes elle aboutissait au mêmepartage en
parts égalesde la zone de chevauchement que la ligne mé-
11· The English edition reads as follows: "Moreover, of ali methods, equidistance
would seem to come closest to achieving the objective of an equal division of the
overlappinarea" (The Lawof Maritime Delimitation-Rejlections, Cambridge, 1989,
p. 59).
136 diane entre côtes oppossées." (footnotes omitted) (ibid., p.
64).118
28. The relationship between equidistance and the bisector
method bas also been recognised by Legault and Hankey, two
distinguished Canadian experts on the law of the sea. In their
words:
"Another means of modifying the equidistance method in
order to discount the effect of incidental coastal features and
configurations on the course of the boundary is to construct
two lines, each representing the coastal front of one of the
parties, and then to bisect the angle between the two con
struction tines. In the Sharjah-Umm al Qaywayn agreement,
1964 (No. 7-10), the parties constructed lines between the
terminal points of adjacent land frontiers and then bisected
the angle formed by the two construction lines.
"ln its judgment in the Gulf of Maine case between Canada
and the United States (No. 1-3), the Chamber rejected the use
of equidistance in the innermost part of the Gulf because of
the numerous isolated rocks and islands along the coast and
because of the dispute over Machias Seal Island. The Chamber
therefore constructed two lines representing the general direc
tion of the coasts of each of the parties (Cape Elizabeth to
the international boundary terminus on the United States side,
the Cape Sable to the same terminus on the Canadian side),
bisected the angle formed by perpendiculars to these construc
tion lines, and then transposed the resulting azimuth to the
point of commencement established by the parties in the
118
· The English edition reads as follows: "lt should not, however, be overlooked
that a more or Jessequal division of the overlapping area can be obtained by other
methods, "differing from it in varying degree even while prompted by similar
considerations", for example, the perpendicular, or the bisector of the angle formed
by the two coastlines.ornerespects, these arejust variations on the equidistance
theme. This is particularly the case with the perpendicular to the general line of
the coast, a method recommended in the past for delimiting the territorial seas
because, when used between adjacent straight coasts, it achieves the same equal
division of the overlapping area as does the median line between opposite coasts."
(footnotes omitted)ibid., p. 59).
137 Special Agreement." (Chamey and Alexander, International
Maritime Boundaries, Dordrecht, 1993, Vol, I, p. 210).
29. And the classical authority, Gidel, made the point in his
treatise:
"Lorsqu'il s'agit de souverainetés qui sont au contact latéral
et non pas au contact de front, la solution de la ligne médiane
consiste à tracer au point frontièreterrestre une perpendiculaire
à la direction généralede la côte n'est qu'une modalité spé
ciale de la ligne médianeentendue au sens large ..." (footnotes
omitted). (Le droit international public de la mer, Tome III,
Paris, 1934, pp. 768-69).
30. In the present context the Govemment of Nicaragua bas
the objective of emphasizing that the resultof using the bisector
method is compatible with the result of using the equidistance
method in the geographical circumstances of the present case,
the use of the bisector method is made necessary for two reasons.
First, it avoids entanglement with the problematical aspectsof the
terminus of the land boundary and, secondly, it avoids giving
undue influence to very minor and aberrant coastal features.
H. The Method Treats the Islets and Rocks off the Main
land Coasts on Their Merits
31. The direction of the bisector proposed by Nicaragua is
calculated by taking into account the general direction of the
mainland coasts of Nicaragua and Honduras. The islets and rocks
off the mainland coasts have not been taken into consideration
in this exercise. It is submitted that the jurisprudence and state
practice confirm this approach, in view of the geography of the
area in which the delimitation takes place.
32. These islets and rocks form a screen in front of the
northem mainland coast of Nicaragua. Further to the north, off
the mouth of the Rio Coco, these features lie a larger distance
from the mainland coast (up to sorne 30 to 40 nautical miles) and
the distances between them are larger. A number of separate
138groups of islets and rocks can be distinguished. Furthest to the
south, off Gorda Point on the Nicaraguan mainland coast, lie the
Miskito Cays. The principal island of the Miskito Cays is Isla
Grande. Isla Grande is by far the largest island off the mainland
coasts in the area near the land boundary of Nicaragua and
Honduras. To the north of the Miskito Cays lie a number of areas
of islets and rocks. This concems inter alia, from south to north,
Edinburgh Reef, Ralf Rock, South Cay, Alargado Reef and Media
Luna Reef. Further to the north, and separated from the most
northerly of the above features (Media Luna Reet) by a wide
Channel, lie afurther number of groups of islets androcks, includ
ing among others, thefollowings cays, Cayos Cocorocuma, Vivo
rillo, Cajones and Pichones. This second areais alsocharacterised
by the absence of any significant islands. The bisector line pro
posed by Nicaragua lies in the Channel between these latter
features and those situated further south, see Figure A in Volume
III (maps).
33. In the Gulf of Maine case, the Chamber of the Court
applied thebisector method toestablish thefirst part of the delimi
tation line inside the Gulf of Maine. To explain the reasons for
employing this method the Chamber observed that:
"ln thisconnection, the Chamber wouldemphasize theneces
sity of not allowing oneself to be too easily swayed by the
perfection which is apparent a priori, from the viewpoint of
equally dividing a disputed area, in a line drawn in strict
compliance with the canons of geometry, i.e., aline so con
structed that each point in it is equidistant from the most
salient points on the respective coastlinesof the parties con
cemed. In an apposite passage of the 1969 Judgment on the
North Sea Continental Shelfcases (l.C.J. Reports 1969, p. 36,
para. 57), the Court showed how, in determining the course
of a delimitation line intended to "effect an equal division of
the particular area involved" between two coasts, no account
need be taken of the presence of "islets, rocks and minor
coastal projections, the disproportionally effectf which can
be eliminated by other means". In pursuance of this remark,
the Chamber likewise would point out the potential disad
vantages inherent in any method which takes tiny islands,
139 uninhabited rocks or low-tide elevations, sometimes lying a
considerable distance from terra firma, as basepoint for the
drawing of a line intended to effect an equal division of a
given area.If any of these geographical features possess sorne
degree of importance, there is nothing to prevent their sub
sequently being assigned whatever limited corrective effect
may equitably be ascribed to them, but that is an altogether
different operation from making a series of such minor
features the very basis for the determination of the dividing
line, or from transforming them into a succession of base
points for the geometrical construction of the entire line. lt
is very doubtful whether a line so constructed could, in many
concrete situations, constitute aline genuinely giving effect
to the criterion of equal division of the area in question[.]"
(l.C.J. Reports 1984, pp. 329-330, para. 201).
34. In a subsequent passage of the Judgment, the Chamber
indicated that these considerations applied in the first sector of
the boundary it was to establish inasmuch as the likely end result
of the application of equidistance from the nearest points of the
baselines from which thebreadth of the territorialsea ofeach State
is measured:
"would be the adoption of a line ali of whose basepoints
would be located on a handful of isolated rocks, sorne very
distant from the coast, or on a few low-tide elevations: these
are the very type of minor geographical features which, as
the Court and the Chamber have emphasized, should be dis
counted if it is desired that a delimitation line should result
so far as feasible in an equal division of the areas in which
therespectivemaritimeprojectionsof the two countries'coasts
overlap."(ibid., p. 332, para. 210).
35. In the Guinea/Guinea Bissau Arbitration the Tribunal
also had to address a complex geographical situation, in which
islands played an important role. In order to determine the extent
to which these islands should be taken into account the Tribunal
distinguished between three types of islands:
140 "a) Les îles côtières, qui ne sont séparéesde la terre ferme
que par des bras de mer ou cours d'eau de faible largeur
et qui lui sont souvent reliéesàmaréebasse, doivent être
considéréescomme partie intégrante du continent.
b) Les îles Bijagos, dont la plus proche est à 2 milles
marins du continent et la plus éloignéeà 37 et qui ne
sont jamais séparéesentre elles par plus de 5 milles, ont,
si l'on applique la règle des 12 milles reconnue par les
Parties, leurs eaux territoriales liéesentre elles et à celles
du continent.
c) Il y a aussi les îlots éparpillésplus au sud au milieu de
hauts-fonds (Poilao, Samba, Sene, Alcatraz), dont cer
tains peuvent compter pour l'établissement des lignes
de base et entrer dans les eaux territoriales." 119
(R.G.D.l. 1985, pp. 522-523, para. 95).
36. The Tribunal concluded that:
"S'il est incontestable que la délimitation à opérer devra,
d'une manière ou d'une autre, laisser à chaque Etat les îles
dont il a la souveraineté, il n'en demeure pas moins qu'aux
fins de la recherche des critères générauxà appliquer ce sont
surtout les îles des catégories a et b qui devront êtretenues
120
pour pertinentes." (ibid.)
11· The English translation reads:
"a) The coastal islands, which are separated from the continent by narrow sea
channels or narrow watercourses and are often joined to itat low tide, must be
considered as forming an integral partf the continent.
b) The Bijagos Islands, the nearest of which is two nautical miles from the
continent and the furthest 37 miles; and no two of which are further apart than 5
miles, can be considered, if the 12-mile rule accepted by the Parties is applied, as
being in the same territorial waters as each other and as being linked to the continent.
c) There are also the most southerly islands scattered over shallow areas (Poilao,
Samba, Sene, Alcatraz), sorne of which may be taken into account for the establish
ment ofbaselines and be included in the territorial waters." (International Boundary
Cases: The Continental Shelf, Cambridge, 1992, Vol. II, p. 1341-1342, para. 95)
12· The English translation reads:
"Although it cannot be denied that, somehow or other, the delimitation must
Ieave to each State the islands over which it has sovereignty, it nevertheless remains
that, in search for the general criteria to be applied, it is abovehe islands of
the categories (a) and (b) that are considered as relevant." (ibid.)
141 37. To establish the method of delimitation it was to apply,
the Tribunal indicated that coastal configuration and orientation
formed an important factor. lt held that this configuration had to
include the relevant islands, i.e. the coastal islands and the Bijagos
Archipelago, as they had been defined in paragraphs 95 (a) and
(b) of the Award. The scattered islands referred to in paragraph
95(c) were not taken into account in this respect (ibid., pp. 184-
185, paras. 97 and 98).
38. The Tribunal retumed to the role of the latter islands in
the delimitation in evaluating lines advanced by the parties. lt
observed that:
"En ce qui concerne 1'équidistance, le Tribunal, qui est,
comme on l'a vu, en présencede deux lignes d'équidistance,
doit reconnaître qu'en l'espècel'uneet l'autre auraient sérieux
inconvénients.Au voisinage de côtes, donnant une importance
exagéréeàcertains accidents non significatifs du littoral, elles
produiraient un effet d'amputation que ne justifierait aucun 121
principe équitableet que le Tribunal ne saurait admettre."
(ibid., p. 526, para. 103).
39. A distinction between different islands and island groups
was also made by the Tribunal in the second phase on maritime
delimitation in the Eritrea/Yemen Arbitration. In establishing the
northemmost stretch of the boundary line, the Tribunal clearly
distinguished between islands, which werea considerable distance
from the mainland coasts, and islands, which were considered to
be an integral part of the mainland coast. Whereas the latter were
taken into account in establishing a median line boundary, the
former were not (Eritrea/Yemen Award, Phase Il: Maritime De-
121 The English translation reads:
"Where equidistance is concemed, the Tribunal, which as we have seen is
confronted here with two !inesequidistance, is forced to accept that both would
have serious drawbacks in the present case. In the vicinityoast, they would
give exaggerated importance to certain insignificant features of the coastline, pro
ducing a eut-off effect which would satisfy no equitable principle and which the
Tribunal could not approve." (ibid., p. 1346, para. 103)
142limitation, Chapter V, paras. 139-153). In respect of the former,
the Tribunal observed that
"This requirement of an equitable result directly raises the
question of the effect to be allowed to mid-sea islands which,
by virtue of their mid-sea position, and if allowed full effect,
can obviously produce a disproportionate effect - or indeed
a reasonable and proportionate effect- ali depending on their
size, importance and like considerations in the general geo
graphical context." (ibid., para. 117).
"These islands do not constitute a part of Yemen's mainland
coast. Moreover, their barren and inhospitable nature and their
position weil out to sea, which already have been described
in the Award on Sovereignty, mean that they should not be
taken into consideration in computing the boundary line
between Yemen and Eritrea." (ibid., para. 147).
40. The recurrent themein thesepronouncement of this Court
and the Arbitral Tribunats is that islands have to be treated on
their merits. This reflects the more general principle, already
enunciated by the Court in the Dispositif in the North Sea Con
tinental Shelf cases, that delimitation must take into account "the
general configuration of the coasts of the Parties, as weil as the
presence of any special or unusual features" (l.C.J.Reports, 1969,
p 54, para. 101(D)). As far as islands areconcemed, consideration
bas been given to such factors as size, distance from the mainland
coasts, population or absence thereof and neamess to the delimita
tion line.
41. Statepractice alsoprovides numerous examples of giving
varied weight toislands in the delimitation of maritime boundaries,
depending on their characteristics and the other circumstances of
the case. Instead of giving an overview of alirelevant agreements,
for the moment it suffices to refer to the conclusions of Professor
Prosper Weil in his authoritative work on maritime delimitation.
He finds that:
"Selon le cas, l'île se verra accorder un effet complet ou un
effet partiel; dans certains cas elle sera ignorée;dans d'autres
143 encore elle sera enclavée,ce qui signifie que la délimitation
sera effectuée entre masses continentales comme si 1'île
n'existait pas et que l'île sera dotée d'un espace maritime
propre entourant son littoral. Les auteurs ont abondamment
décrit et analysé ces solutions, dont la pratique des Etats
122
fournit de nombreux exemples." (Perspectives du droit
de la délimitationmaritime, Paris, 1988, p. 244).
42. As is shown by the graphie representation of the bisector
line proposed by Nicaragua (see Figure Ain Volume III) ail islets
and rocks under the sovereignty of Nicaragua are situated to the
south of this line and those under the sovereignty of Honduras
to the north of the line. As is set out above (see Chapter VIII),
this result is achieved without taking the islets and rocks explicitly
into account. Nonetheless, the bisector line proposed by Nicaragua
bas the effect that the numerous islets and rocks off the mainland
coasts are treated on their merits.
43. Although the rocks and islets have a very limited size
in comparison to the mainland coasts, the bisector line, while
reflecting the geographical relationship of the mainland coasts of
Nicaragua and Honduras, leaves ail of the islets and rocks with
considerable maritime zones. The jurisprudence indicates that in
these circumstances the use of abisector of the general directions
of the mainland coasts as a maritime boundary produces an equit
able result.
12· The English translation reads:
"Depending on the circumstances, the island will be given full or partial effect.
In certain cases it will be ignored. In others it will be enclaved, which means that
the delimitation will be carried out between the mainlands as if the island did not
exist, and it will be given its own maritime spaces around its coasts. These various
approaches have been dealt with extensively in the Iiterature, and there are many
examples in State practice." Laweof Maritime Delimitation- Rejlections, Cam
bridge, 1989, p. 230)
144 X: THE DELIMITATION IN THE TERRITORIAL SEA
A. Introduction
1. Nicaragua's Application requested the Court "to deter
mine the course of the single maritime boundary between the areas
of territorial sea, continental shelf and exclusive economie zone
appertaining respectively to Nicaragua and Honduras." Chapter
VIII dealt with the course the maritime boundary should follow
between the overlapping areas of continental shelf and exclusive
economie zones and explained the legal and technical reasons that
evidenced the appropriateness of the use of a bisector in the par
ticular circumstances of this case. Chapter IX, for its part, gave
an account of the equitable criteria that confmned the equitable
result produced by the bisector method proposed by Nicaragua.
This chapter will deal with the particular requirements that the
United Nations Convention on the Law of the Sea imposes for
delimitations within the territorial sea.
2. The reasons for having first addressed the question of
the delimitation in the areas located beyond the territorial sea will
become clear in this Chapter. Nicaragua, after consultations with
ber technical and legal experts, came to the conclusion that the
application of the special methods required by international law
for delimitation within the territorial sea, in the particular geo
graphical circumstances of this case, coincided greatly with the
result produced by the use of the bisector method that Nicaragua
proposes should be used to delimit those considerably more ex
tensive maritime areas located beyond the territorial sea. For
reasons of exposition, it has been considered more logical to first
explain the reasons behind the use of the bisector method because
the maritime boundary in the territorial sea would be adjusted to
coïncide with the course of the maritime boundary generated by
the application of the method. Thus, in fact, since the line pro
duced by the bisector is going to be used overall it was decided
that the explanation for the useof the bisector method should be
approached first in the Memorial.
145 3. As bas been indicated in para. 5 of Chapter I, Nicaragua
and Honduras are Parties to the United Nations Conventions on
the Law of the Sea of 1982. In accordance with article 3 of this
Convention, both Parties have the right to a territorial sea of a
breadth of 12 nautical miles. The delimitation of this territorial
sea must be effected on the basis of the principles set out in
Article 15 of the Law of the Sea Convention, which provides:
"Delimitation of the territorial sea between States with op
posite or adjacent coasts"
"Where the coasts of two States are opposite or adjacent to
each other, neither of the two States is entitled, failing agree
ment between them to the contrary, to extend its territorial
seabeyond themedian line every point of which is equidistant
from the nearest points on the baselines from which the
breadth of the territorial seas of each of the two States is
measured. The above provision does not apply, however,
where it is necessary by reason of historie title or other special
circumstances to delimit the territorial seas of the two States
in a way which is at variance therewith".
4. In the present Chapter Nicaragua will demonstrate that
the provisions of Article 15 are to be understood in the light of
the equitable principles of international law that are generally
applicable to delimitations in the other maritime areas subject to
the jurisdiction and rights of sovereignty of States. Afterwards
it will be established that even applying the provisions of Article
15 literally, the special circumstances that surround this case and
that have been explained in Chapters II and VII, make imperative
the use of a line at variance with the strict median that would
otherwise be applicable. It will also be seen that the line resulting
from the application of the special circumstances to the strict
median line results in a line that follows a course quite similar
to that generated by the bisector method.
146B. Meaning of the rule: median Une-specialcircumstances
5. The generally accepted opinion is that the formulation
of the principles applicable to the delimitation of the territorial
sea between States with adjacent coasts in Article 15 of the Con
vention on the Law of the Sea represents the relevant principles
of general international law. The majority of the standard works
express this opinion. Thus, in his major work on maritime delimi
tation, Professor Prosper Weil writes: "délimitation de la mer
territoriale est dominée par la règle équidistance-circonstances
spéciales: établiepar l'article 12 de la Convention de 1958 sur
la mer territoriale et la zone contiguë et reprise sans difficultépar
la troisièmeconférencedans1'article 15de la Convention de 1982,
cette règleest généralementregardéecomme ayant acquis valeur
coutumièrepour ce qui est de la délimitationde la mer territoriale"
(Perspectives du droit de la délimitationmaritime, Paris, Pedone,
123
1988, pp. 147-148).
6. The following works are a sample of such opinion:
i) R.R. Churchill and A.V. Lowe, The Law of the Sea, 2nd ed.,
1988, pp. 154-155.
ii) Lucius Caflisch, "La délimitationdes espaces entre États dont
les côtes se font face ou sont adjacentes" in René-JeanDupuy
et Daniel Vignes eds., Traitédu nouveau droit de la mer,
Économica!Bruylant, Paris/Bruxelles, 1985, p. 391.
iii) Restatement of the Law Third: The Foreign Relations Law
of the United States, The American Law Institute, 1990, Vol.
2, pp. 70-71, para. 516.
iv) Sir Robert Jennings and Sir Arthur Watts, Oppenheim'sInter
national Law,Vol. 1,Peace, Longman, London, 9thed., 1992,
p. 613, para. 197.
12· The English edition reads as follow: "the delimitation of the territorial sea is
govemed by the equidistance/special circumstances rule. Established by the Article
12 of the 1958 Convention on the Territorial Sea and Contiguos Zone and incorp
orated without any difficulty by UNCLOS III in the Article 15 of the 1982 Conven
tion, this rule is regarded as having become part of customary law for purposes of
territorial sea delimitation.LawTof Maritime Delimitation- Rejlections, Cam
bridge, 1989,. 136).
147 7. Recent case law conceming delimitation of the territorial
seas of States with adjacent or opposite coasts is limited, attention
having been given principally to delimitation of the continental
shelf and the exclusive economie zone. However, in the Dubai/
Sharjah Border Arbitration, the Arbitral Tribunal equated the
customary and the conventional rules (91 ILR 543, p. 663; see
R.R. Churchill and A. V. Lowe, The Law of the Sea, 2nd ed.,
1988, p. 183).
8. As recalled above (para. 6), the provisions of Article 15
of the 1982 Convention are an almost exact replica of Article 12,
paragraph 1, of the Convention on the Territorial Sea and Con
tiguous Zone of 1958:
"1. Where the coasts of two States are opposite or adjacent
to each other, neither of the two States is entitled, failing
agreement between them to the contrary, to extend its territ
orial sea beyond the median line every point of which is
equidistant from the nearest points on the baselines from
which the breadth of the territorial seas of each of the two
States is measured. The provisions of this paragraph shall not
apply, however, where it is necessary by reason of historie
title or other special circumstances to delimit the territorial
seas of the two States in a way which is at variance with this
provision".
9. The principles embodied in this provision were agreed
upon in the International Law Commission as early as 1953 after
the Report of the Experts Committee consulted by Special
Rapporteur J.P.A. François. It is worth noting that, according to
the experts, who had advocated the equidistance principle:
"Dans certains cas, cette méthodene permettra pas d'aboutir
à une solution équitable,laquelle devra alors êtrerecherchée
dans des négotiations"(Additif au deuxième rapport de M.
J.P.A. François, Rapporteur spécial,doc. NCN.4/61/Add.1,
ILC Yearbook 1953, vol. II, p. 79; italics added).
10. This was the origin of the inclusion of the mention of
"special circumstances" in the relevant provisions of the 1958 and
1481982Conventions, and shows that the main object of any maritime
delimitation, including in the territorial sea is to achieve an equit
able solution.
11. The Report of the International Law Commission had
this to say about thereference to specialcircumstances in this draft
provision:
"The delimitation in case of disagreement between those
States, of the territorial seas between two States the coasts
of which are opposite each other, was one of the main tasks
of the committee of experts which met at The Hague in April
1953at the Commission'srequest. The Commission approved
of the experts' proposais (A/CN.4/61/Add.l) and took them
as abasis for this article. It considered, however, that it would
be wrong to go into too much detail and that the rule should
be fairly flexible. Consequently, it did not adopt certain points
of detail laid down by the experts. Although the Commission
noted that special circumstances would probably necessitate
frequent departures from the mathematical median line, it
thought it advisable to adopt as a general rule, the system of
the median line as a basis for delimitation" (Yearbook of the
International Law Commission, 1956, vol. II, p. 271. Com
mentary, para 2).
12. The draft provision on continental shelf delimitation in
the same Commission Report adopted a similar approach. The
relevant draft article and the Commentary are as follows:
Article 72
i. "1. Where the same continental shelf is adjacent to the
territoriesf two or more States whose coasts are opposite
to each other, the boundary of the continental shelf apper
taining to such States shall be determined by agreement
between them. In the absence of agreement, and unless
another boundary line isjustified by special circumstances,
the boundary is the median line, every point of which is
equidistant from the baselines from which the breadth of
the territorial sea of each country is measured".
149 n. "2. Where the same continental shelf is adjacent to the
territoriesof two adjacent States, the boundary of the
continental shelf shall be determined by agreement
between them. In the absence of agreement, and unless
another boundary line isjustified by specialcircumstances,
the boundary shall be determined by application of the
principle of equidistance from the baselines from which
the breadth of the territorial sea of each of the two coun
tries is measured".
Commentary
"(1) For the determination of the limits of the continental shelf
the Commission adopted the same principles as for the articles
12 and 14 conceming the delimitation of the territorial sea.
As in the case of the boundaries of the territorial sea, provi
sion must be made for departures necessitated by any excep
tional configuration of the coast, as weil as the presence of
islands or of navigable channels. This case may arise fairly
often, so that the rule adopted is fairly elastic(Ibid.p. 300)
(emphasis supplied).
13. There are strong reasons for regarding the reference to
"special circumstances" in Article 15 of the Convention of 1982
(and Article 12 of the Convention of 1958) as very flexible and
encompassing considerations similar to those applying in the
context of the delimitations of opposite or adjacent continental
shelves or exclusive economie zones.
14. The need for flexibility emphasised during the travaux
préparatoires of the 1958 Convention, regarding the delimitation
ofboth the continental shelf and the territorial sea between States
with adjacent or opposite coasts has been recognised in a number
of more recent sources, including the rare recent cases where the
question was at issue.Thus, in the Beagle Channel case theTribu
nal, in delimiting the territorial waters in the Channel, applied the
following criteria:
"In drawing itsown line on the attached Boundary Line Chart,
as described in paragraphs 104 and 105 above, the Court has
150 been guided by the considerations indicated in Annex IV
hereto (which shows how the line bas been traced), -in par
ticularby mixed factors of appurtenance,coastal configuration
equidistance, and also of convenience, navigability, and the
desirabilityof enabling each Party so far as possible to navi
gate in its own waters. None of this bas resulted in much
deviation from the strict median line except, for obvious
reasons, near GableIsland wherethehabitually used navigable
track bas been followed" (Beagle ChannelArbitration Report
and Decision of the Court, 52 ILR, p. 93, at p. 185, para.
110).
15. Similarly, in the Guinea/Guinea-Bissau Arbitration the
Tribunal made no distinction between the principles or rules that
were to apply to the sector involving the territorial sea and to the
sector relating to both the continental shelf and the exclusive
economie zone (ILR, Vol. 83, p.l). The methods might differ
according to the geographical realities in each area but the prin
ciples and rules applied for the selectionof the method were the
same: to achieve an equitable result.
16. The jurisprudence bas long indicated the close relation
ship between "special circumstances" and equitable principles.
This was explained in cogent reasoning in the Anglo-French
Continental Shelf case. In the words of the Tribunal:
"69. It also follows that the relevance of "special circum
stances" in the application of Article 6 does not depend on
aclaim to invoke specialcircumstances having been advanced
by the interested State when ratifying or acceding to the Con
vention. That this is the legal position under Article 6 is fully
recognised by the United Kingdom which concedes that the
French Republic may put forward a daim to "special circum
stances" in these proceedings, whether or not in 1965 it made
areservation withregard tothose specialcircumstances. Clear
ly, this feature of Article 6 further underlines the full liberty
of the Court in appreciating the geographical and other cir
cumstances relevant to the determination of the continental
shelf boundary, and at the same time reduces the possibility
151of any difference in the appreciation of these circumstances
under Article 6 and customary law.
"70. The Court does not overlook that under Article 6 the
equidistance principle ultimately possesses an obligatory force
which it does not have in the same measure under the rules
of customary law; for Article 6 makes the application of the
equidistance principle a matter of treaty obligation for Parties
to the Convention. But the combined character of the
equidistance-specialcircumstances rule means that theobliga
tion to apply theequidistance principle isalways one qualified
by the condition "unless another boundary line is justified by
special circumstances". Moreover, the travaux préparatoires
of Article 6, in the International Law Commission and at the
Geneva Conference of 1958, show that this condition was
introduced into paragraphs 1 and 2 of the Article because it
was recognised that, owing to particular geographical features
or configurations, application of the equidistance principle
might not infrequently result in anunreasonable or inequitable
delimitation of the continental shelf. In short, the role of the
'special circumstances' condition in Article 6 is to ensure an
equitabledelimitation;and thecombined"equidistance-special
circumstances rule", in effect, gives particular expression to
a general norm that, failing agreement, the boundary between
States abutting on the same continental shelf is to be deter
mined on equitable principles. ln addition, Article 6 neither
defines "special circumstances" nor lays down the criterion
by which it is tobe assessed whether any given circumstances
justify a boundary line other than the equidistance line.
Consequently, even under Article 6 the question whether the
use of the equidistance principle or sorne other method is
appropriate for achieving an equitable delimitation is very
much a matter of appreciation in the light of the geographical
and other circumstances. In other words, even under Article
6 it is the geographical and other circumstances of any given
case which indicate and justify the use of the equidistance
method as the means of achieving anequitable solution rather
than the inherent quality of the method as a legal norm of
delimitation" (Anglo-French Continental ShelfCase, ILR, Vol.
54, p.6 at pp. 55-56).
152 17. The Court adopted this reasoning in the Jan Mayen case.
In the words of the Judgment:
"The fact that it is the 1958 Convention which applies to the
continental she1fdelimitation in this case does not mean that
Article 6 thereof can be interpreted and applied either without
reference to customary law on the subject, or wholly inde
pendently of the fact that a fishery zone boundary is also in
question in these waters. The Anglo-French Court of Arbitra
tian in 1977 placed Article 6 of the 1958 Convention in the
perspective of customary law in the much-quoted passage of
its Decision, that:
"the combined "equidistance-special circumstances rule", in
effect, gives particular expression to a general norm that,
failing agreement, the boundary between States abutting on
the same continental shelf is to be determined on equitable
principles". (UnitedNations, Reports of International Arbitral
Awards (RIAA), Vol. XVIII, p. 45, para. 70).
"If the equidistance-special circumstances rule of the 1958
Convention is, in the light of this 1977 Decision, to be
regarded as expressing a general norm based on equitable
principles, it must be difficult to find any material difference
- at any rate in regard to delimitation between opposite
coasts - between the effect of Article 6 and the effect of the
customary rule which also requires a delimitation based on
equitable principles" (l.C.J. Reports 1993, p. 58, para. 46).
18. This significant element in thejurisprudence of delimita
tion has been recognised by the publicists. Thus, Professor Weil
in a work frrst published in French ten years ago, theo translated
into English, wrote:
"Si le divorce paraît consomméentre le droit de la délimi
tation de la mer territoriale et celui de la délimitation du
plateau continental et de la zone économique,cette rupture
ne repose sur aucune raison décisive.Aussi est-il permis de
penser que la faille sera combléeun jour prochain et que le
droit de la délimitationmaritime, commun à1'origine à la mer
153 territoriale et au plateau continental, et dont le bloc a été
désintégré par l'évolutionultérieure,retrouvera son unité."
"Les signes avant-coureurs de cette réunificationse manifes
tent d'ores et déjà,de façon encore discrètecertes, mais trop
nombreux pour que 1'on n'y prêtepas attention. Dans 1'affaire
du Canal Beagle, leTribunal a, pour délimiterleseaux territo
riales dans la partie resserréedu Canal, pris en considération
"des facteurs mélangés de relevance, de configuration côtière,
d'équidistance,et aussi de commodité,de navigabilité,ainsi
que le souci de permettre à chaque partie de naviguer autant
que possible dans ses propres eaux": le raisonnement aurait-il
étédifférents'il s'étaitagi de délimiterdes plateaux conti
nentaux ou des zones économiquesexclusives? Non moins
significative est 1'absence de toute suggestion, dans Guinée/
Guinée-Bissau, d'une quelconque distinction entre les règles
à appliquer à la partie de la ligne délimitationafférenteà la
mer territoriale et celles à appliquer à la partie de la ligne
afférenteà la fois au plateau continental et à la zone écono
mique exclusive."
"C'est apparemment autour des règles de droit coutumier
élaboréespar la jurisprudence que l'unitéperdue se reconsti
tue, plutôt qu'autour de la règle équidistance-circonstances
spéciales;tant et si bien que c'est le régimejuridique de la
délimitationdela mer territoriale qui semble perdre sa spécifi
citépour se fondre dans le régimejuridique de la délimitation
du plateau et de la zone." (foot note omitted) (Perspectives
du droit de la délimitationmaritime, Paris, Pedone, 1988, p.
152-153. 124
12· The English translation reads as follows: "The divorce between the law of
territorial seadelimitation and the delimitation of the continental shelf and exclusive
economie zone may seem to be final, but there is no overriding reason for the split.
It isconceivable that the gap may soon be breached and the law of maritime delimi
tation, at its origin common to both the territorial sea and the continental shelf and
only later suffering disintegration, may be reunified."
"There are already sorne signs of this, still modest, it is true, but too numerous to
be ignored. In the Beagle Channel case, the Tribunal, in delimiting the territorial
waters in the narrow part of the Channel, took into consideration 'mixed factors
154 19. Other writers, who have expressed very similar views,
include the following:
(i) Lucius Caflisch, in Daniel Bardonnet and Michel Virally
eds., Le nouveau droit international de la mer, Paris,
1983, p. 35 at pp. 45-47 and "La délimitation des es
paces marins" in René-JeanDupuy and Daniel Vignes
eds., Traitédu nouveau droit de la mer, Economica!
Bruylant, Paris/Bruxelles, 1985, p. 391.
(ii) Malcolm Evans, Relevant Circumstances and Maritime
Delimitation, Oxford, 1989, pp. 78-79.
(iii) Patrick Daillier and Alain Pellet, Droit international
public (Nguyen Quoc Dinh), LGDJ, Paris, 6thed., 1999,
p. 1117, para. 677.
20. It is then apparent that the law has evolved in such a way
that the principles goveming delimitation of overlapping zones
of territorial sea are broadly the same as the principles goveming
the delimitation of shelf areas and overlapping exclusive economie
zones. As indicated in Chapter VIII, paras. 18-24, above, these
principles and rules applicable to the delimitation of areas of
of appurtenance, coastal configuration, equidistance, and also of convenience,
navigability, and the desirabilityling each party so far as possible to navigate
its own waters'. Would the reasoning have been different if it had been a question
of delimiting the continental shelves or the exclusive economie zones? No less
significant is the absence in Guinea/Guinea-Bissau of ail suggestion of any distinc
tion between the rules to be applied to that part of the delimitation line relating to
the territorial sea and that relating to both the continental shelf and the exclusive
economie zone."
"The lost unity seems to be reconstituting itself around the rules of customary law
developed by the courts ratherthan on the rule of equidistance/special circumstances,
so much so that it would appear to be the legal regime for the delimitation of the
territorial sea which is losing its particularity and becoming merged in the legal
regime appertaining to the delimitation of the continental shelf and the exclusive
economie zone" (The Law of Maritime Delimitation- Reflections, Cambridge, 1989,
pp. 140-1).
155exclusive economie zone and continental shelf are "those which
125
are appropriate to bring about an equitable result".
21. The Govemment of Nicaragua does not suggest that the
general rule has superseded the more specifie rule stated in Article
15 of the 1982 United Nations Convention on the Law of the Sea
(see above, para. 4). It simply notes that according both to un
animous judicial decisions and "the teachings of the most highly
qualified publicists of the various nations", the latter is an illustra
tion of the former.
22. In particular, as noted by the Court in its 1993Judgment
in the case conceming Maritime Delimitation in the Area between
Green/and and Jan Mayen, thereexist strikingsimilaritiesbetween
the concept of "special circumstances" mentioned in Article 15
of the 1982 Convention (or Article 6 of the 1958 Convention on
the Continental Shelf, which was applicable in that case) and the
"relevant circumstances" the investigation of which is required
by the customary law based upon equitable principles:
"The concept of "special circumstances" was discussed at
length at the First United Nations Conference on the Law of
the Sea, held in 1958. It was included both in the Geneva
Convention of 29 April 1958 on the Territorial Sea and the
Contiguous Zone (Art. 12) and in the Geneva Convention of
29 April 1958 on the Continental Shelf (Art. 6, paras. 1 and
2). It was and remains linked to the equidistance method there
contemplated, so much so indeed that in 1977 the Court of
Arbitration in the case conceming the delimitation of the
continental shelf (United Kingdom/France) was able to refer
to the existence of a rule combining "equidistance-special
circumstances" (... ). It is thus apparent that special circum
stances are those circumstances whichmight modify the result
produced by an unqualified application of the equidistance
principle. General international law as it bas developed
through the case-law of the Court and arbitral jurisprudence,
12· See e.g.: Continental Shelf case (Tunisia/Libyan Arab Jamahiriya), 1.C.J. Re
ports 1982, p. 49, para. 50 and the case law quoted in Chapter VI above at para.
20 to23.
156 and through the work of the Third United Nations Conference
on the Law of the Sea, has employed the concept of "relevant
circumstances". This concept can be described as afact neces
sary to be taken into account in the delimitation process."
"Although it is a matter of categories which are different in
origin and in name, there is inevitably a tendency towards
assimilation between the special circumstances of Article 6
of the 1958 Convention and the relevant circumstances under
customary law, and this if only because they both intended
to enable the achievement of an equitable result" (l.C.J.
Reports 1993, p. 62, para. 55-56).
C. The special circumstances in this case:
23. Chapter II explains the geographical and geomorpho
logical features of the area to be delimited and the particular
incidence they have on the search for an adequate method that
would bring about an equitable delimitation. Sorne of the features
singled out in Chapter II are of greater relevance in sorne areas
than in others, but they must ali be taken into consideration, at
least in a general fashion, in ali the areas subject to delimitation.
Of these features noted in Chapter Il, the following are of particu
lar relevance to the territorial sea delimitation: the elbow formation
of the continental land mass at the boundary and that the land
boundary coïncides with the coast on a river delta.
i. The elbow formation of the continental landmass at the
boundary:
It has been explained in Chapter II that the configuration of
the coast at the mouth of the Coco River is such that a median
line constructed from the river mouth and using only mainland
basepoints uses a single point at either side of the river mouth
for the mathematical calculation of the entire line. This means
that at no time is any other point on either the Honduran or
Nicaraguan coast doser to the median line than the single
points at the river mouth: two points situated at a distance of
only a few hundred metres from each other.
157 ii. The coïncidence of the land boundary with the coast on
a river delta:
Chapter II describes the constant changes of the location of
the mouth of the Coco River. The figures provided in that
Chapter illustrate the movement north and east this feature
has suffered at least in the past 150 years of recorded carto
graphy and photography of the area. Chapter VII drew the
consequences of this changing feature on the starting point
of the Iine of delimitation and proposed a starting point situ
ated at sea sorne 3 nautical miles from the mouth.
The fluctuations of the river delta provide an inadequate basis
for calculation of the median line because this circumstance
makes it difficult to decide on the precise and stable single
(see Chapter II, para. 34, above) points each side of the mouth
of the river to be retained in view of tracing the equidistance
line. We have seen in Chapter Il, para. 31 that in the 38 years
that elapsed since the taking of the aerial photographs of the
mouth of the Coco river in 1962 to the taking of the satellite
photograph of the year 2000, the mouth of the river travelled
more than 1 nautical mile in a north easterly direction. A
delimitation based on this highly unstable feature is not com
patible with the general purpose of a delimitation be it mari
time or land-based.
D. The line resulting from the application of the provisions
of Article 15
24. The characteristics of the coastline at the boundary at
the mouth of the Coco River provide aclassic example of the type
of geographical configuration that made it necessary to add the
proviso on special circumstances to the determination of the
method to be used in the delimitation of the territorial sea in the
1958 and 1982 Conventions. The land boundary where it meets
the sea is located on a very pointed cape that protrudes even
further into the sea along the margins of the river. Chapter II
demonstrated in several charts going back to the middle of the
158XIXth Century that the extension of land into the sea at Cape
Gracias a Dios has traditionally been further east on the
Nicaraguan margin of the River Coco. Nicaragua has recalled that
the Report of the inspection of the mouth of the Coco River made
by the Mixed Boundary Commission in 1962 noted that at what
was determined to be the Nicaraguan margin of the River Coco
there was "a narrow strip of land that extends to the sea, or in
geographie terms, a cape" (see Chapter II of this Memorial). This
can also be appreciated in the latest satellite picture that is
included in Figure VII.
25. Ifin the present case, a delimitation of the territorial sea
were to be made following a median line every point of which
was equidistant from the nearest points on the baselines from
which the breadth of the territorial sea is measured, and were not
to take into consideration the special circumstances in the area,
the result would of necessity be that the basepoints would be
located one on each margin of theriver and the median line would
be equidistant only from these to points until reaching the end
point selected for the delimitation, however distant this point was
located from the coasts of both Parties. Based solely on
equidistance the more easterly location of the Nicaraguan margin
would naturally push the direction of the delimitation line further
north than the direction of the line generated by the use of the
bisector to the general direction of ali the coastlines that has been
requested for the other maritime areas in Chapter VIII.
26. Since the United Nations Convention on the Law of the
Sea provides that this strict result of the equidistance line be
mitigated by special circumstances, at this point, the discussion
would then entail the effect to be given to this Nicaraguan feature
vis à vis Honduras. The position of Nicaragua is that this would
be a fruitless and expensive exercise of time for the Court and
the Parties to dedicate what would amount to a great disproportion
of efforts on a very minor part of the delimitation that has been
requested. A delimitation givingfull effect to theicaraguan Cape
would involve a gain of afew square nautical miles for Nicaragua
whilst a delimitation giving less than full effect to this feature,
would result in a line with a direction not unlike that produced
by the bisector method.
159E. The maritime boundary in the territorial sea
27. In order to comply with the provisions of Article 15,
Nicaragua has requested the construction of the median line shown
in Figure XIX This represents an approximate median line based
on recent satellite imagery of the mouth of the Coco River with
a reduced effect given to transient features in the area. The sector
produced by this method is in fact coïncident with the alignment
resulting from the application of the bisector method described
above in Chapter VIII, Section C.
28. The consequence is that the equitable character of this
sector of the delimitation requested of the Court, extending to the
outer limit of the territorial sea, is confirmed by the bisector
method.
29. Nicaragua thus proposes that the delimitation line in the
territorial sea should commence at the point indicated in Chapter
VII, that is, a point located in the geographical coordinates 15°
01' 53" N 83° 05' 36'.' From this point the delimitation line in
the territorial sea should follow an approximate median line that,
in fact, correspondsto the course of the line generated by applying
the bisector method explained in Chapter VIII, until reaching the
limit of the territorial sea at the 12 nautical miles seaward limit
located at 15° 06' 16" N 082° 58' 08" W. The result of this
exercise can be appreciated in Figure XIX in this Volume and
in the inset of Figure A in Volume III.
30. In the seminal case on maritime delimitation, the North
Sea Continental Shelf Cases,the Court emphasized that the impor
tant thing was not to "seek one method of delimitation but one
goal" (l.C.J. Reports 1969,p. 3. atpara. 92). Nicaragua has striven
towards this goal in ali the maritime areas: that is, to achieve an
equitable solution based on the rules andprinciples of International
Law.
160 XI : CONCLUSIONS
1. Before presenting the formai Submissions, the Govem
ment of Nicaragua will set out the conclusions on the issues of
law and fact.
The Maritime Areas in Dispute
2. The maritime areas in dispute consist of the Nicaraguan
Rise, together with adjacent areas of the continental shelf attri
butable to Nicaragua and Honduras respectively.
The Interests Involved
3. The dispute bas, since 1982, constituted a threat to the
security of Nicaraguan fishermen and bas given rise to the real
danger of incidents involving the armed forces of the two states.
It is the purpose of Nicaragua to achieve stability in the region,
and this must be based upon an authoritative determination of the
maritime boundary.
4. The geographical area in dispute is the most extensive
maritime zone in the Caribbean with depths of no more than 200
meters. In the geomorphological context it is one of the most
promising new areas in the Caribbean region for oil and gas and
bas been an area traditionally used by fishermen from Nicaragua.
The Applicable Law
5. The applicable law in respect of the delimitation as a
whole is constituted by the Law of the Sea Convention of 1982,
together with thepertinent principles of general international law.
The Method of Delimitation Beyond the Territorial Sea
6. The principal sector of the delimitation requested by
Nicaragua bas been established by means of the bisector of the
161angle produced by constructing lines based upon the respective
coastal frontages and producing extensions of these !ines.
7. This method provides an effective reflection of the
coastal geography, and, in particular, the configuration of the
coasts abutting upon the maritime areas to be divided.
8. The bisector method has the support of a substantial
jurisprudence, both in the Court and in other tribunats, and the
doctrine has for long recognised the aptitude of the method for
the achievement of an equitable result in certain political and
geographical circumstances.
9. State practice provides clear evidence of the significant
role of the bisector method, and its associated techniques, in
producing an equitable result.
1O. As the Govemment of Nicaragua has explained in detail
in Chapter II above, the equidistance method, at least in its classi
cal form, is not appropriate for a delimitation in the political and
geographical circumstances of this case.
11. The equitable character of the bisector method in the
circumstances of the present case is dictated by the following
elements.
12. (a)The method produces an effectivereflection of coastal
relationships.
13. (b) The method produces a result which satisfies the
equitable principle that the aim is to achieve an equal division
of areas where the maritime projections of the coasts of the States
between which delimitation is to be effected converge and overlap.
As the Gulf of Maine case indicates, the equal division of the
overlapping areas can be obtained not only by employing the
method of equidistance, but by means of the bisector method.
14. (c) The bisector method conspicuously satisfies the prin
ciple of non-encroachment by one party on the natural prolonga
tion of the other. It is weil established that the principle is applic-
162able to the delimitation of a single maritime boundary and not
exclusively to the delimitation of continental shelf areas.
15. (d) The bisector method also satisfies the principle of
preventing, as far as possible, any eut-offof the seaward projection
of the coast of either of the states concemed. As in the case of
the principle of non-encroachment, this principle is applicable to
the delimitation of a single maritime boundary and not exclusively
to the delimitation of continental shelf areas.
16. (e) The bisector method is, in the circumstances of the
presentcase, consistentwith the conceptsunderlyingthe attribution
of title to the maritime areas concemed.
The Equitable Criteria Confirming the Equitable Character
of the Solution Produced by the Bisector Method
17. There are additional criteria, which are generally
recognised as relevantcircumstances in the process of delimitation
and which provide confirmation of the equitable character of the
solution produced by the bisector method. There are five such
additional criteria, which are as follows.
18. (a) The incidence of natural resources in the disputed
area.
19. (b) The principle of equitable access to the natural
resources of the disputed area confirmed by the Court in the Jan
Mayen case.
20. (c) The geology and geomorphology of the Nicaraguan
Rise, which is a unitary feature with a symmetrical relationship
with the coasts of the parties. This unitary feature clearly invites
the applicationof the principle ofequal division, which is achieved
by the bisector method.
21. (d) The criterion according to which the process of de
limitation should avoid compromising the security of the parties.
163 22. (e) In particular, the result should ensure that each state
controls the maritime areas situated opposite its coasts and in its
vicinity.
23. The equitable character of the application of the bisector
method is also confirmed by the general equivalence of result with
the equidistance method. The preference for the bisector method
is dictated by somewhat specialised considerations, namely, the
problematical aspects of the terminus of the land boundary and
the connected requirement of avoiding according undue influence
to unstable coastal features.
24. Lastly, the use of the bisector method treats islets and
rocks on their merits and avoids giving effect to very minor geo
graphical features.
25. The position of Nicaragua is that this daim line bas no
legal validity and is not opposable to Nicaragua.
The Delimitation of the Territorial Sea
26. For the purpose of the delimitation of the adjacent areas
of territorial sea, the appropriate method of delimitation depends
upon Article 15 of the Law of the Sea Convention and most,
therefore, in principle, follow the "equidistance/special circum
stances system".
27. Nicaragua bas proposed a delimitation based upon the
principles prescribed in Article 15 of the Convention on the Law
of the Sea, together with the pertinent principles of general inter
national law. Given the very substantial hydrographie difficulties
attending the use of a strict median line, it bas been necessary to
employ the methodology of the approximate median line. The
sector produced by this method is in fact coïncident with the
alignment resulting from the application of the bisector method
described above in Chapter VIII, Section C.
164 28. The consequence is that the equitable character of this
sector of the delimitation requested of the Court, extending to the
outer limit of the territorial sea, is confirmed by the bisector
method.
165 Islets and Rocks Claimed by Nicaragua
In these proceedings Nicaragua has, in respect of the delimita
tion of the disputed areas of the continental shelf and exclusive
economie zone, proposed an equitable solution based upon the
bisector method.
In the absence of the adoption of a bisector delimitation by
the Court, Nicaragua reserves the sovereign rights appurtenant to
ali the islets and rocks claimed by Nicaragua in the disputed area.
The islets and rocks concerned include but are not confined to
the following:
Hall Rock, South Ca y, Arrrecife 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.
166 SUBMISSIONS
Having regard to the considerations set forth in this Memorial and,
in particular, the evidence relating to the relations of the Parties.
May it please the Court to adjudge and declare that:
The bisector of the lines representing the coastal fronts of the two
parties, as applied and described in paragraphs 22 and 29, Chapter
VIII above, and illustrated on the graphie, constitutes the boundary
for the purposes of the delimitation of the disputed areas of the
continental shelf and exclusive economie zone in the region of
the Nicaraguan Rise.
The approximate median line, as described in paragraphs 27 and
29, Chapter X above, and illustrated on the graphie, constitutes
the boundary for the purpose of the delimitation of the disputed
areas of the territorial sea, extending to the outer limit of the
territorial sea, but in the absencea sector coterminous with the
mouth of the River Coco and with the terminus of the land bound
ary.
Respectfullysubmitted,
CarlosJ.Argüello-G6mez
Agent
Republicof Nicaragua
21March2001
167 LIST OF MAPS AND FIGURES
SKETCH MAPS AND FIGURES ATTACHED
TO VOLUME I
Figure I: Caribbean Sea with submerged features and
surrounding landmass
Figure II: Continental Shelf up to the 200 metres isobath
with detailof the approximate bisector of the
Nicaraguan Rise
Figure III: Geomorphology of the Nicaraguan Rise
Figure III.a: Geomorphology of Nicaraguan Rise with detail
of approximate bisector of the Nicaraguan Rise
Figure IV: Detail of the mouth of the Coco River in mari
time chart No. 1219, designed by the Royal
Britannic Navy and published in June 1843
Figure V: Reproduction of the North East section of the
map of Nicaragua prepared in 1895 by Mr.
Sonnenstem
Figure VI: Map designed from the aerial photography
taken in 1962 for use by the Mixed Boundary
Commission
Figure VII: Satellite image of the mouth of the River Coco
taken in February 2000 with an indication of
the present day location of the geographie point
identified in 1962 as the endof the land
boundary
Figure VIII: Indication of the direction of the meridian of
longitude and the parallel of latitude at the
mouth of the Coco River as well as the direc
tion of the bisector
169Figure IX: Intersection of the 82nd meridian of longitude
with the Honduras-Colombia Treaty line of
1986.
Figure X: Maritime Boundary between Senegal and
Guinea (Bissau)
Figure XI: Seabed Boundary between Sharjah and Umm al
Qaywayn
Figure XII: Maritime Boundary between Abu Dhabi and
Dubai
Figure XIII: Maritime Boundary of Mexico and the United
States in the Gulf of Mexico
Figure XIV: Maritime Boundary between Brazil and
Uruguay
Figure XV: Maritime Boundary between Argentina and
Uruguay
Figure XVI: Maritime Boundary between Costa Rica and
Panama in the Pacifie
Figure XVII: Maritime Boundary between Brazil and French
Guiana
Figure XVIII: Bisector of the Nicaraguan Rise
Figure XIX: Approximate median line in the territorial sea
MAPS IN VOLUME III
Figure A: Illustration showing the geography and bathy
metry of the Nicaraguan and Honduran coast
with coastal front vectors and the coastal front
bisector
Figure B: Official Map of Nicaragua
170 LIST OF ANNEXES, VOLUME II
Annex 1 Report of the Inter-American peace comrnittee to
the council of the organization of the American
States on the termination of the activities of the
Honduras - Nicaragua Mixed Commission. . . . . . 1
Annex 2 Dialogue with the Minister of Foreing Affairs
dated 16 January, 1977: There are no negotiations
with Colombia but they should be held. . . . . . . . . 25
Annex 3 Dialogue with the Minister of Foreing Affairs
dated 7 March, 1977: The maritime border with
Honduras is not delirnited. . . . . . . . . . . . . . . . . . 27
Annex 4 Diplomatie Note dated: 11 May 1977
(N. G-286) ............................ 29
Annex 5 Diplomatie Note dated: 20 May 1977
(N. 1025) ............................. 30
Annex 6 Maritime Delimitation Treaty between Colombia
and Honduras . . . . . . . . . . . . . . . . . . . . . . . . . .
Annex 7 Presentation by the Secretary of State for Foreign
Affairs before the Permanent Council of the Or
ganization of American States.
(December 6, 1999)...................... 33
Annex 8 Diplomatie Note dated: 23 March 1983
(N. 0031- DSS) ........................ 42
Annex 9 Diplomatie Note dated: 14 April 1982
(Aczlgg. N. 124) ........................ 44
Annex 10 Diplomatie Note dated: 19 September 1982
(SIR.) ................................ 46
Annex 11 Diplomatie Note dated: 19 April 1983
(DAJ N. 056) .......................... 48
171Annex 12 Diplomatie Note dated: 28 April 1983
(DAJ N. 063) .......................... 50
Annex 13 Diplomatie Note dated: 6 November 1983
(DAJ N. 226) .......................... 52
Annex 14 Diplomatie Note dated: 9 November 1983
(DAJ N. 228) .......................... 54
Annex 15 Diplomatie Note dated: 6 January 1996
(N.960007) ........................... 56
Annex 16 Diplomatie Note dated: 28 September 1982
(SIR) ................................ 59
Annex 17 Diplomatie Note dated: 29 August 1995
(N. 950369) ........................... 61
Annex 18 Diplomatie Note dated: 18 September 1982
(N. 2176 SD) .......................... 63
Annex 19 Diplomatie Note dated: 20 September 1982
(N. DSS-502) .......................... 65
Annex 20 Diplomatie Note dated: 16 July 1982
(N. 1653) ............................. 67
Annex 21 Diplomatie Note dated: 15 April 1983
(N. 228-DSM) ......................... 68
Annex 22 Diplomatie Note dated: 19 April 1983
(N. 243-DSM) ......................... 70
Annex 23 Diplomatie Note dated: 21 April 1983
(N. 245-DSM) ......................... 72
Annex 24 Diplomatie Note dated: 11 May 1983
(N. 202-DA) ........................... 74
Annex 25 Diplomatie Note dated: 17 August 1983
(N. 406 DA) ........................... 75
172Annex 26 Diplomatie Note dated: 17 Oetober 1983
(N. 479 DA) ........................... 76
Annex 27 Diplomatie Note dated: 16 January 1984
(EHN-006-85) . . . . . . . . . . . . . . . . . . . . . . . . . 77
Annex 28 Diplomatie Note dated: 9 Oetober 1984
(552-DA) ............................. 78
Annex 29 Diplomatie Note dated: 29 January 1985
(053-DA) ............................. 79
Annex 30 Diplomatie Note dated: 19 April 1985
(162-DA) ............................. 81
Annex 31 Diplomatie Note dated: 5 February 1989
(018-CAYM-89) ........................ 83
Annex 32 Diplomatie Note dated: 26 August 1992
(N. 205-DGCA) ........................ 84
Annex 33 Diplomatie Note dated: 27 August 1992
(N. 218-DGCA) ........................ 87
Annex 34 Diplomatie Note dated: 26 Oetober 1992
(N. 362-DSM) ......................... 90
Annex 35 Diplomatie Note dated: 27 Oetober 1992
(N. 363-DSM) ......................... 91
Annex 36 Diplomatie Note dated: 9 November 1994
(N. 487-DSS) .......................... 93
Annex 37 Diplomatie Note dated: 16 November 1994
(N. 573/94) ........................... 95
Annex 38 Diplomatie Note dated: 19 April 1995
(0-216-DSM) .......................... 96
Annex 39 Diplomatie Note dated: 18 Deeember 1995
(SIR) ................................ 98
173Annex 40 Diplomatie Note dated: 3 January 1996
(N 001-DSM) ......................... 100
Annex 41 Diplomatie Note dated: 19 June 1998
180-DS) .......................... 102
(N
Annex 42 Diplomatie Note dated: 8 July 1998
(N 243-DSM) ......................... 104
Annex 43 Diplomatie Note dated: 18 September 1998
(N 393-DSM) ......................... 106
Annex 44 Diplomatie Note dated: 19 Mareh 1999
(N 115-DSM) . . . . . . . . . . . . . . . . . . . . . . . . .
Annex 45 Diplomatie Note dated: 30 November 1999
(N EHN/301199) ....................... 110
Annex 46 Diplomatie Note dated: 2 February 1985
(DAJ N. 014) ......................... 111
Annex 47 Diplomatie Note dated: 5July 1985
(DAJ N. 022) . . . . . . . . . . . . . . . . . . . . . . . . . 113
Annex 48 Diplomatie Note dated: 4 November 1994
(MRE/94/05142) ....................... 115
Annex 49 Diplomatie Note dated: 12 Deeember 1994
(N. 940507) . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Annex 50 Diplomatie Note dated: 12 Deeember 1994
(N. 940508) .......................... 118
Annex 51 Diplomatie Note dated: 12 April 1995
(SIR.) ............................... 120
Annex 52 Diplomatie Note dated: 25 April 1995
(950191) ............................ 122
Annex 53
Diplomatie Note dated: 5 May 1995
(950184) ............................ 123
174Annex 54 Diplomatie Note dated: 20 Deeember 1995
(MRE/95/05335) ....................... 125
Annex 55 Diplomatie Note dated: 21 November 1995
(MRE/95/05335) . . . . . . . . . . . . . . . . . . . . . . . 129
Annex 56 Diplomatie Note dated: 3 February 1997
(N. 970030) .......................... 131
Annex 57 Diplomatie Note dated: 8 August 1997
(N. 9700501) ......................... 134
Annex 58 Diplomatie Note dated: 30 August 1983
(DAJ N. 137) . . . . . . . . . . . . . . . . . . . . . . . . . 136
Annex 59 Diplomatie Note dated: 16 November 1984
(DAJ N. 166) ......................... 138
Annex 60 Diplomatie Note dated: 4 February 1985
(DAJ N. 016) ......................... 139
Annex 61 Diplomatie Note dated: 29 April 1985
(DAJ N. 084) ......................... 141
Annex 62 Diplomatie Note dated: 20 May 1992
(920119) ............................ 143
Annex 63 Diplomatie Note dated: 2 Oetober 1992
(920275) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Annex 64 Diplomatie Note dated: 5 Oetober 1992
(920273) ............................ 149
Annex 65 Diplomatie Note dated: 4 January 1993
(930101) ............................ 152
Annex 66 Diplomatie Note dated: 4 January 1993
(930102) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Annex 67 Diplomatie Note dated: 2 July 1998
(MRE/98/00357) ....................... 156
175Annex 68 Diplomatie Note dated: 22 September 1998
(MRFJ98/00533) 0 oo 0 0 ooooooooo 0 oooo 0 0o 0 158
Annex 69 Diplomatie Note dated: 7 Deeember 1999
(MRFJ3620/99) ooooooooooo 0 oooooooooooo 160
Annex 70 Diplomatie Note dated: 8 September 1986
(AJ No080) ooooo 0 0 ooooooo 0 0 oooo 0 0 0 oo 0 162
Annex 71 Diplomatie Note dated: 9 July 1991
(No910102) ooooooooooooooooooooo 0 0 ooo 164
Annex 72 Diplomatie Note dated: 21 June 1993
(No930154) ooooooo 0 oooooooooooooooooo 167
Annex 73 Diplomatie Note dated: 25 June 1993
(No930276) oo 0 0 0 0 0 oo 0 • o0 o 0 0 0 0 ••• 0 0 00 0 169
Annex 74 Diplomatie Note dated: 1 Deeember 1999
(MRE/DM/3578/12/99) ooooooo 0 oo 0 0 oooo 0 0 172
Annex 75 Diplomatie Note dated: 21 December 1999
(MRE/DM/3699/12/99) oo. o.. oo. o 0 0 ooo 0oo 174
Annex 76 Diplomatie Note dated: 7 April 1994
(N 124-DSM) oooo. oooo. o. oooo. o 0 oooo 0 0 176
Annex 77 Diplomatie Note dated: 14 April 1994
(N 940286) . o 0 o. ooo 0 ooo. 0 oo 0 ooooo 0 0oo 177
Annex 78
Diplomatie Note dated: 3 May 1982
(N 254-DSM) oo. oooo 0 ooo.. oooooooo 0 0o 0 179
Annex 79 Diplomatie Note dated: 9 June 1995
(N 950282) ooooooo. ooooooo. oo. ooooo. o 181
Annex 80 Diplomatie Note dated: 4 June 1993
(N 295-DSM) oooooooo. ooo 0 o. o. ooo 0 0 0o. 183
Annex 81 Diplomatie Note dated: 9 November 1994
(N 564/94) ooo. o.. 0 oooo. ooo 0 oo. ooooooo 185
176Annex 82 Diplomatie Note dated: 23 August 1995
(MRE/95/03771) ....................... 186
Annex 83 Diplomatie Note dated: 13 June 1995
(N. 197-SAM-95) ...................... 188
Annex 84 Joint Declaration dated: 5 September 1990. . ... 190
Annex 85 Records of the proceedings first mixed commis
sion for maritime affairs Honduras - Nicaragua.
Dated: 27 May 1991. .................... 193
Annex 86 Joint Declaration dated: 19 September 1991. ... 197
Annex 87 Joint Declaration dated: 29 November 1991 .... 198
Annex 88 Records of the proceedings of the second meeting
of the mixed commission for maritime affairs
Honduras- Nicaragua: 5 August 1992........ 199
Annex 89 La Prensa: Honduras must fulfill her
commitments to Nicaragua. 1 December 1999... 209
Annex 90 Diplomatie Note dated: 25 June 1993
(N. 930155)........................... 211
Annex 91 Records of proceedings of the binational commis-
sion Honduras- Nicaragua. Dated: 20 April 1995.212
Annex 92 Records of the second binational commission
Honduras- Nicaragua. Dated: 16 June 1995.... 216
Annex 93 Minutes of the special meeting of the Ad-Hoc
commission of the delegations of the Republic of
Honduras and Nicaragua, Held on 22 January
1996................................ 224
Annex 94 Minutes of the special meeting of the Ad-Hoc
commission of the delegations of the Republic of
Honduras and Nicaragua, Held on 31 January
1996 ................................ 227
177Annex 95 Memorandum of undestanding. Dated: 24 Septem-
ber 1997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Annex 96 Minutes of the first meeting of the Honduras -
Nicaragua mixed commission. Dated: 1 and 2
October 1997. . . . . . . . . . . . . . . . . . . . . . . . . . 231
Annex 97 Minutes of the second meeting of the Honduras -
Nicaragua mixed commission. Dated: 6 and 7
November 1997........................ 233
Annex 98 Joint Declaration dated: 20 May 1998 ........ 236
Annex 99 Declaration of the National Assembly of the
Republic of Nicaragua. Dated: 22 June 1993 ... 237
Annex 100 Diplomatie Note dated: 13 September 1983
(N. 456-DA). . ........................ 239
Annex 101 Diplomatie Note dated: 19 April 1982
(N. 235 DSM)......................... 241
Annex 102 Diplomatie Note dated: 29 August 1983
(N. 426 DSM). . ....................... 242
Annex 103 Diplomatie Note dated: 30 June 1993
(N. 336 DSM). . ....................... 243
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