Written observations of Nicaragua

Document Number
16173
Document Type
Incidental Proceedings
Date of the Document
Document File
Document

INTERNATIONAL COURT OF JUSTICE

TERRITORIAL ANDMARITIME DISPUTE

(NICARAGUA V. COLOMBIA)

WRITTEN OBSERVATIONS

OF THE REPUBLIC OF NICARAGUA

ON THE APPLICATION FOR PERMISSION TO INTERVENE

FILED BY THE REPUBLIC OF HONDURAS

2 SEPTEMBER 2010 WRITTEN OBSERVATIONS OF THE REPUBLIC OF NICARAGUA

1. In accordance with Article 83 of the Rules of Court and within the time limit of 2
September 2010 fixed by the President of Court for this purpose, as communicatedto the

undersigned Agent by a letter (ref. 136841) from the Registrar dated 10 June 2010, the

Republic of Nicaragua (hereinafter: Nicaragua) furnishes these written observations to
the Application for permission to intervene in the case concerning the Territorial and

Maritime Dispute (Nicaragua v. Colombia), filed by the Republic of Honduras

(hereinafter:Honduras) on 10 June 2010 referring inter alia to Article 62 of the Statute of

the Court.

2. Honduras claims the right to intervene in this case either as a party or as a non party

based on Article 62 of the Statute of the Court. In either case it must satisfy the
requirements of Article 62 and, as will be shown below, Honduras does not prove any

legal interest that is at issue for it in the territorial and maritime dispute between

Nicaragua and the Republic of Colombia (hereinafter: Colombia).

I. GENERAL OBSERVATIONS

3. The Application filed by Honduras is a blatant attempt to reopen matters between

Honduras and Nicaragua that have already been decided by the Court in its 8 October

2007 Judgment in the case concerning Territorial and Maritime Dispute between

Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). The Judgment
in that case, with the full force resjudicata, settled the entire Caribbean Sea boundary

between Nicaragua and Honduras with the exception of a very small area of under 3

nautical miles in the territorial sea that is not parte area claimed by Honduras in its
present Application to be affected by the proceedings in the case between Nicaragua and

Colombia.

4. The Court decided in Section 3 ofparagraph 321 (the Operative Clause) ofits Judgment

of 8 October 2007 that "starting from the point with the co-ordinates 15° 00' 52" N and

83° 05' 58" W [that is, a point located under 3 miles from the mainland] the line of the single maritime boundary shaH follow the azimuth 70° 14'41.25" ... until it reaches the

area where the rights ofthird States may be affected."

5. Apparently dissatis:fied with the boundary :fixedby the Court, or at least with a portion of

it, Honduras pretends that that boundary is still in dispute. This is plainly reflected in

Paragraph 19 of the Application, where Honduras states: "a dispute on delimitation

subsists between Honduras and Nicaragua."(« ... undifférendde délimitationperdure entre

le Honduraset le Nicaragua.»)

6. According to Honduras' Application, this "dispute" concems an area of the Caribbean

Sea located north of the 15thparallel and south of the boundary line between Honduras

and Nicaragua fixed by the Court on 8 October 2007: "any claim by Nicaragua over the

maritime areas located north of the 15thparallel risks jeopardizing the rights and interests

of Honduras as a third state." (« ...toute prétentiondu Nicaraguasur les espaces maritimes
situésau nord du ISeparallèlerisqued'affecterlesdroits et intérêtsu Hondurasen tant qu'Etat

tiers...») But the Court has already decided, three years ago, that Honduras has no such

"rights and interests". In its Judgment, the Court determined that the area between the

15thparallel (to the south) and the line of delimitation described in paragraph 321 (3)

belonged to Nicaragua, not Honduras.

7. Honduras attempts to manufacture a "dispute" with Nicaragua by misconstruing the

Judgment of 8 October 2007. In particular, Honduras fmds an endpoint, or "terminus" to

the maritime boundary established by the Court where none exists.

8. In the Conclusions (Submissions) ofits Application,

"Honduras requests authorization from the Court to intervene as a party in the
pending case, with a view to reach a fmal settlement in the dispute over the

boundary line that runs between the terminus of the boundary fixed by the
Judgment of 8 October 2007 and the triple point of the boundary line established
by the Treaty on Maritime Delimitation of 1986, as well as a determination of the
triple point on the boundary line of the Treaty on maritime delimitation of 1986

between Honduras and Colombia."
("Le Honduras sollicite l'autorisation de la Cour d'intervenir en tant que partie dans

l'instance pendante pour régler définitivementtant le différend sur la ligne de
délimitationentre le pointterminalde lafrontièrefixéeparl'arrêd tu8 octobre2007 et
le triple point sur la lignefrontière du traitéde délimitationmaritime de1986 que la

1
HAl, para. 12. détermination du point triple sur la ligne frontière du traité de délimitation maritime de
1986 entre le Honduras et la Colombie.)

9. In the frrst place, the Judgment of 8 October 2007 did not fix a "terminus" ("point

terminal") of the boundary established by the Court. In fact, the Court deliberately chose

not to fix an"endpoint" of this boundary. "The Court will not rule on an issue when in

order to do so the rights of a third party that is not before it, have frrst to be determined

(see Monetary Gold removedfrom Rome in 1943, Judgment, LC.J. Reports 1954, p.19).

Accordingly, it is usual in a judicial determination for the precise endpoint to be left

undefmed in order to refrain from prejudicing the rights of third States." (para. 312).

Thus, in Sketch-map No. 7, which the Court labeled "Course of the maritime boundary

line", the boundary line in the east ended with an arrow pointing to the northeast, in the

same direction as the azimuth followed by the boundary line fixed by the Court.

10. Moreover, there can be no boundary line running from the non-existent "terminus" of the

boundary fixed by the Judgment of 8 October 2007 to the "triple point" of the boundary

described in the Treaty of 1986 between Honduras and Colombia, because the so-called

"triple point" is also non-existent. In regard to that treaty, which was amply discussed

during the Nicaragua v. Honduras case, the Court observed:

11."The Court places no reliance on the 1986 Treaty to establish an appropriate en~poi for t

the maritime delimitation between Nicaragua and Honduras. The Court nevertheless

observes that any delimitation between Honduras and Nicaragua extending east of the

82ndmeridian and north of the 15thparallel (as the bisector described by the Court would

do) would not actually prejudice Colombia's rights because Colombia's rights under this

Treaty do not extend north of the 15thparallel."3

12.Nevertheless, it is in this precise area- east of the 82ndmeridian and north of the 15th

parallel - where the Honduran Application claims "rights and interests" that might be

affected by the present proceedings, notwithstanding the fact that the Court has already

ruled that Honduras has no rights or interests between the bisector and the 15thparallel in

this area, and observed that Colombia, likewise, has no rights north of the 15th parallel.

2HAl, para. 36. Emphasis added.
38 October 2007 Judgment, par. 316. Thus, the Judgment of 8 October 2007 negates the very "rights and interests" that

Honduras' Application to intervene seeks to protect.

13.Article 62 is not a mechanism to reopen cases and void the principle of res judieata,
whether the Party attempting to do so has or has not an independent basis of jurisdiction

as against both Parties to the case.

14.Honduras' Application concludes with this alternative request:

"Altematively, Honduras requests the authorization from the Court to intervene as
a non-party, so asto protect its rights and inform the Court of the nature of the
rights and legal interests that the Republic of Honduras holds in the Caribbean

Sea..."

(«A titre subsidiaire, le Honduras sollicite l'autorisation de la Cour d'intervenir
en tant que non partieafin de protégerses droits et d'informerla Cour de la nature
des droits et intérêtjsuridiques de la Républiquedu Honduras dans la mer des

Caraïbes qui pourraien4 êtremis en cause par la décision de la Cour dans
l'instance pendante.»)

15.1nforming the Court of "the nature of (its) rights and legal interests...in the Caribbean

Sea" - including the part of it on which the Application to intervene is focused -- is

exactly what Honduras has already done, during two rounds of written and oral

pleadings, which extended over a period of nearly 8 years, in the case of Nicaragua v.
Honduras. Honduras cannot truly be interested in informing the Court ali over again for

the second time. Rather, the Application is a pretext for reopening and again litigating the

same issue - the location of its boundary with Nicaragua in the Caribbean Sea - that the

Court has already pronounced Judgment on.

II. THE SOLE PURPOSE OF THE APPLICATION FOR PERMISSION TO
INTERVENE FROM HONDURAS IS TO CALL INTO QUESTION THE

COURT'S DECISION OF 8 OCTOBER 2007

4HAl,para.36. A. General claim of Honduras

16. Honduras suggests in a number of instances that only a part of the maritime boundary

between itself and Nicaragua has been established by the judgment of the Court of 8

October 2007 in the Territorial and Maritime Dispute between Nicaragua and Honduras
5
in the Caribbean Sea. In reality, the Judgment of the Court defmes the entire maritime

boundary. At the same time, Honduras suggests that the Judgment of the Court has fiXed
6
a terminus of the maritime boundary between Nicaragua and Honduras. Honduras does

not specify that alleged terminus of the maritime boundary in geographical coordinates.

The fact that Honduras observes that the zone in which its legal interests might be
7
affected on the west is limited by the meridian of 82° W indicates that it considers that

the alleged terminus of its maritime boundary is situated at this meridian.

17. The Court deals with the defmition of the maritime boundary between Nicaragua and

Honduras in paragraphs 306-319 of itsjudgment of 8 October 2007. In paragraph 314 the

Court observes the following about the determination of the endpoint of that boundary:

"The Court observes that there are three possibilities open to it: it could say

nothing about the endpoint of the line, stating only that the line continues until the
jurisdiction of a third State is reached; it could decide that the line does not extend
beyond the 82nd meridian; or it could indicate that the alleged third-State rights

said to exist east of the 82nd meridian do not lie in the area being delimited and
thus present no obstacle to deciding that the line continues beyond that meridian."

18. In paragraph 319 of its judgment the Court makes clear that it chose the third option set

out in paragraph 314:

"The Court may accordingly, without specifying a precise endpoint, delimit the

maritime boundary and state that it extends beyond the 82nd meridian without
affecting third-State rights."8

19. As may be appreciated from the above, the Judgment of the Court of 8 October 2007 in

clear terms points out that it does not purport to do either of the things Honduras is

alleging. The Judgment does not determine a partial maritime boundary but determines

5
6Seee.g. HAl, para. 7.
HAl, para. 18.
7HAl, para. 17.
8Emphasis provided. the entire maritime boundary between Nicaragua and Honduras. Secondly, the Judgment

of the Court clearly indicates that the undefmed terminus of the boundary is located to the

east of the 82nd meridian. Even more importantly, the judgment specifies that this

undefmed terminus is on the azimuth the Court has defmed in its Judgment as

constituting the maritime boundary between Nicaragua and Honduras. The Judgment of

the Court establishes that there cannot be a maritime boundary between Nicaragua and
Honduras to the south of this azimuth.

20. Nevertheless, and in the face of the Court's Judgment, Honduras now requests the Court

to determine the maritime boundary between Honduras and Nicaragua up to the so-called

"triple point" with Colombia, which according to Honduras is located on the maritime
9
boundary between itself and Colombia established by their 1986 Treaty. The maritime

boundary of the 1986 Treaty is wholly situated to the south of the azimuth which
constitutes the maritime boundary between Nicaragua and Honduras. The request of

Honduras to determine a maritime boundary between Nicaragua and Honduras is thus a

blatant violation of the principle of resjudicata. The Judgment of the Court of 8 October

2007 excludes the possibility of a maritime boundary to the south of the azimuth

established by the Court in the zone in which Honduras now claims that its legal interests

might be a:ffected.

B. Subject matter is resjudicata

21. According to Honduras, in paragraph 16 of its Application, the "dispute" "is solely

limited to the maritime delimitation within the area circumscribed by the treaty of 1986

[between Honduras and Colombia]." ("... l'interventionqu'ilsolliciteest limitéà la seule

délimitationmaritimedans la zone circonscritepar le traitéde 1986, ... »In Paragraph 17,
Honduras describes this area as "a rectangle whose point of departure is the intersection

of the 82ndmeridian and parallel 14°59'08". Reading east, the lower limit follows the

parallel to the 80th meridian and the eastern side of the rectangle moves north along this

meridian up to the intersection with parallel 16°20'; from there, the northern boundary

runs west along that parallel up to its intersection with the 82ndmeridian, and the western

9
HAl, paras 22 and 23. side of the rectangle runs along the latter down to the starting point." ("... un rectangle

dont le point de départest l'intersectiondu82eméridienet du parallèle 14Q59'08. Se dirigeant
vers l'est,a limite inférieuresuit ce parallèlejusqu'au 80e méridienet le côtédu rectangle

oriental remonte vers le nord le long de ce méridienjusqu'au point d'intersection avec le

parallèle16Q20'; de là, la limite septentrionale se dirige vers l'ouest en suivant ce parallèle

jusqu'àson intersection avec le 82e méridienet le côtéoccidental du rectangle redescend le

longde ce dernier jusqu'aupointde départ.)

22. Honduras argues that this rectangular area cannot be claimed by Colombia by virtue of

the treaty of 1986, but that it remains in dispute between Honduras and Nicaragua.

Honduras is right about the former, but wrong about the latter.

23. Both of these conclusions are inevitable as can be clearly appreciated on the following
sketch maps annexed to this Written Observations.

24. The frrst is Sketch Map No. 7 (Annex A) from the Court's October 2007 Judgment,

which the Court entitled "Course of the maritime boundary line". It shows the

delimitation line fixed by the Court in precisely the area that Honduras now claims to be
in dispute between the two States. As stated in paragraph 320 of the Judgment, and in the

Operative Clause (paragraph 321(3)), in this area the boundary follows "the line having

the azimuth 70°14'41.25" until it reaches the area where the rights ofthird States may be

affected;"

25. The second sketch map (Annex B) shows the rectangular area where Honduras now
claims "a dispute on delimitation subsists" superimposed on Sketch Map No. 7 from the

Court's October 2007 Judgment. This map leaves no doubt that the area in question was

in fact delimited by the Court. The part of the rectangle north of the delimitation line

belongs to Honduras. The part to the south belongs to Nicaragua. There are no parts of

the rectangle that exist outside the area already delimited by the Court in its Judgment.

Honduras is foreclosed from making claims south of the delimitation line.

26. Yet Honduras contends in its Application that the purpose of its intervention is precisely

to obtain a delimitation of this area. In paragraph 12, Honduras states that "any claim by

Nicaragua over the maritime areas located north of the 15thparallel risks jeopardizing the

rights and interests of Honduras as a third State. As such, Honduras possesses a real, current, direct and concrete interest of a legal nature in the delimitation of maritime

spaces in the zone located north of the boundary that resulted from the 1986 treaty

[between Honduras and Colombia]." ("... toute prétention du Nicaragua sur les espaces

maritimes situésau nord du ISeparallèle risque d'affecter les droits et intérêtsdu Honduras en
tant qu'Etat tiers comme il a étéreconnu par la Cour dans son arrêtd'octobre 2007.Entant que

tel, le Honduras possède un intérêtd'ordre juridique réel, actuel, direct, concret dans la

délimitation des espacesmaritimes dansla zone au nord du tracéfrontalier résultantdu traité

de 1986. »)

27. This is the only "legal interest" Honduras identifies as being affected by the current

proceedings, and it is the sole basis on which its Application to Intervene is purportedly

submitted.

28. But, by virtue of the Court's Judgment of October 2007, Honduras has no legal interest

south of the delimitation line fixed by the Court, including the area bounded by that line

in the north and the15th parallel in the south. To be sure, Honduras has a legal interest in
areas lying north of the delimitation line fixed by the Court, but those interests are

unaffected by the current proceedingssince they are indisputably outside the scope of this

case.

29. Accordingly, Honduras' Application to Intervene fails on two grounds. First, it fails to

identify any interest of a legal naturethat Honduras might have which may be affected by

the Court's decision in the present case. Second, to the extent that it addresses areas south

(i.e., on the Nicaraguan side)of the Honduras/Nicaragua boundary fixed by the Court in
October 2007, it seeks to relitigate matters already decided by the Court in prior

proceedings and is therefore barredby the principle ofresjudicata.

III. HONDURAS DOES NOT PROVE ANY LEGAL INTEREST THAT IS AT

ISSUE FOR IT IN THE TERRITORIAL AND MARITIME DISPUTE
BETWEEN NICARAGUA AND COLOMBIA 30. Pursuant to article 81, paragraph 2.a), of the Rules of the Court (which reproduces the

terms of article 62 of the Statute), the Application for permission to intervene must

specify "the interest of a legal nature which may be affected by the decision in the case".

In this case, Honduras does not prove any such interest - as clearly results moreover from
the arguments in the preceding sections that point out that the decision of 8 October 2007

determined completely the maritime border between Nicaragua and Honduras subject to

the rights ofthird parties. 10·

31. That is sufficient to establish that no legal interest is at issue for Honduras in these

proceedings. It is true that "the State that asks to intervene 'must only show that its
interest 'may'be affected and not that it will be affected or that it will necessarily be

affected' (Land, Island and Maritime Border Dispute (El Salvador/Honduras), decision

of 13 September 1990, LC.J.Reports 1990, p. 118,par. 61 )"li,but it is still necessary that

it might be affected; yet, in this case, the decision of 8 October 2007, which, between

Honduras and Nicaragua has the authority of resjudicata, establishes that such cannot be

the case. Then it is only for surplus of law that Nicaragua will submit below sorne

additional remarks on certain aspects of the Honduran Application for permission to

intervene.

32. Firstly, Nicaragua wishes to say that it has no objection in principle to a State'sseeking to
12
intervene as a party in the main proceeding, as Honduras says it wishes to do • But, as

indicated above, whether it intervenes as a party or as a non party to the proceedings does

not change in any way its obligationto show that a legal interest is at issue for it.

10 lt is contrary to common sense to say that "any daim from Nicaragua to the maritime spaces located to the
north of the 15th parallel risks affecting the rights and interests of Honduras as a third-party State as was
recognized by the Court in its decision of October 2007" {HAl, par. 12): Honduras is not a third party but rather a
party to the dispute resolved by that decision. For the same reason, it cannat be accepted that "Honduras is part
[of the] third-party States" ["..... Le Honduras fait partie de ces États ti{HAl, par. 6) that is discussed in
Nicaragua's submissions in this lawsuit since the maritime border between the two countries was completely and

definitively set by the decision of 2007- subject to the rights of true third-party States.
11HAI, par. 25.
12HAI, par. 24, par. 30, or par. 36. 33. Similarly, the fact that "in late 2008, Honduras told the parties to the proceeding and the
13
Courts of its intent to file an application for permission to intervene" cannot help to

establish that such Application is admissible and well founded.

34. Moreover and primarily, the geographie description of the area in which Honduras
14
intends to protect its rights does not prove the existence of a risk that those rights

(alleged or real) may be called into question by this case. Indeed, this area, as established

above, is entirely outside the areas in dispute between the parties. The rights that

Honduras is seeking to protect are not included in the area in dispute and are not at all at
risk ofbeing affected by the Court'sdecision in this case.

35. Asto Honduras'sinsistence on wanting to "inform the Court of the nature ofHonduras's

rights that are at issue in the pending case" ("... informer la Cour de la nature des droits du
15
Honduras qui sont en causedans l'instance pendante.") it should be noted that:

a. as Nicaragua has shown above, Honduras cannot invoke any right that might be

affected- therefore it cannot, very obviously, "inform" the Court of any such

rights; and,

b. in any event, the Court has been fully informed of the situation in the region in

which Honduras claims to have rights and it decided on the consequences to draw

from that in the 2007 decision, while stating therein that the rights of Colombia

were not concemed. The Court was informed of ali the alleged rights of Honduras

in the Caribbean in the Nicaragua v. Honduras case.

IV. ADDITIONAL OBSERVATIONS

36. Honduras has annexed (Annex 1)toits Application a Joint Statemyntby the Presidents of

Nicaragua and Honduras of 9 April 2010. The evident purpose of this document was to

fmd solutions to the maritime questions both in the Gulf of Fonseca (on the side of the

13
14HAl, par. 13- footnotes omitted.
15HAl, par. 17.
HAl, par. 23 and par. 33 ("secondly...". Pacifie Ocean) and in the small area located in the territorial sea in the Caribbean that

was left without delimitation by the 8 October 2007 Judgment of the Court. The Joint

Statement specifically calls for the reinstallation of the "Commissions of Limits of both

nations...in order to conclude in shorttime the process of delimitation of the area (that is,

the small area within the territorial sea of the Parties) which in compliance with section
IV of the Operative Clause of the judgment dated October eight of two thousand seven,

was left to negotiations by both Countries...". 16

37. If anything, this document highlights that as late as April 2010 there was no other
question of delimitation pending between the Parties. The mandate of the Commissions

of Limits was only for the small area indicated within the territorial sea and there was no

indication of any questions pending in areas beyond the territorial sea that are the

purported object of Honduras' Application.

38. Finally, Nicaragua respectfully wishes to put on record the following information. After

the coup d'État in Honduras of June 2009 that forcefully deposed the legitimate

Government of that State, Nicaragua as well as the majority of States in the world

repudiated the coup. At present there are many States, particularly in Latin America, as
well as International Organizations such as the Organization of American States, that

have not recognized the legitimacy of the Governments of Honduras that took power

subsequent to the coup. Nicaragua is one of those States. This notwithstanding,

Nicaragua is participating in these proceedings, as it has done in other proceedings

involving its sovereign interests, in the understanding that it does not imply any change

of its position.

16
"Findsthat the Parties must negotiate in good faith with a view to agreeing on the course of the delimitation line
of that portion of the territorial sealocated between the endpoint of the land boundary asestablished by the 1906
Arbitral Award and the starting-point of the single maritime boundary determined by the Court to be located at
the point with the co-ordinates 15° 00' 52" N and 83° 05' 58" W." (Text of section IV of the Operative Clause-
paragraph 321 - of the judgment dated October eight of two thousand seven). V. SUBMISSIONS

39. ON THESE GROUNDS, the Republic of Nicaragua subrnits that the Application for

permission to intervene filed by Honduras does not comply with the Statute and Rules of

Court and therefore: (1) opposes the granting of such permission, and (2) requests that the

Court disrniss the Application for permission to intervene :filedby Honduras.

Carlos Argüello G6mez

Agent of the Republic ofNicaragua0i "::
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Extract from the Judgment of 8 October 2007:
Operative clause: "From point F, it shall continue along the line
having the azimuth 14'41.25" until it reaches the area where
the rightsird States may be affected;"

Sketchmap 7 from ICJ Judgment in
Nicaragua vsonduras (2007)

AnnexA 1
1 s 5· sb· 1

"?
;:
0 0

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·-.>~~. _..:_,·.,:...-,·.,·~::..,::7{f~9-9~~~~g,t·

'~·:Jh~;lji~c~i~ti .j~}o9:1Jtid~r,t~·lirie~······.·

~ 1 ~l ~ICA ~U 1 t r T 1 m::~:ft~~~~::Ji:O~i~~;='.~~=ï:.t
. has.beeJ1·preJ)a_redfor·dlusonly.·e·purposes
•• + -••.-.~~---·-·._____- '
Extrac" from theJudgment of 8 Oclobe<2007: r, 1(; ,,.é-,~, ,,,li..( l:,:,i-~,j>)èÇjipil(j~!)\1)
316. [ ·.. ] The Court ob_srttatrnvdlisitation betHond andNicaragu.·~--~~••·:: =.·::".;::'=_w·"·.··__.~ é~ g
~ extendmg east beyond the 82nd mendtan and north of the 15th paralle·: ·..·.·· · ·.:o·,·~op···.' · c:•·.. ;::
by the Court would do) would not actually prejudice Colombia's right·.·:··.·.·..···-··'>··'''t:~OOO'OO(I~'
under this Treaty do not extend north of the 15th parallel.
319. The Court may accordingly, without specifying a precise endpoint, delimit the maritime
boundary and state that it extends beyond the 82nd meridian without affecting third-State rights. [ .. ]

Sketchmap 7 from ICJ Judgment in Nicaragua vs Honduras (2007)

showing Honduras' "Area where a dispute on delimitation exists"

AnnexB

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Written observations of Nicaragua

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