ANSWER TO THE QUESTION PUT BY JUDGE SIMMA TO NICARAGUA
Question put by judge Simma
"In yesterday's hearings in the reply to the question posed by Judge Keith, on the
hypothesis underlying this question, Nicaragua presented a sketch-map which showed
the cays claimed by Honduras lying to the south of the bisector line argued by
Nicaragua as enclaves having 3-mile territorial seas. I refer to sketch-maps CAG 2-10
and AP 2-4 and to the pleading ofProfessor Pellet in paragraph 30.
"My question· is: What are the reasons for the indication by Nicaragua of 3-mile
territorial seas around these cays while both Parties to the present dispute in general
daim 12-mile territorial seas?"
On this point it should first be pointed out that Honduras itself is aware that in certain
circumstances the territorial seaof certain maritime features bas to be smaller than the
full 12 mile normal limit. As indicated in Nicaragua's reply to the question put forth
by Judge Keith, Honduras itself bas indicated that it does not claim a full 12 mile
territorial sea for the cays located nearer the5thParallel if the full attribution of the
12 miles would result in the creation ofterritorial sea areas for these cays south of this
15thparallel.
The views of Nicaragua, generally, are as follows. As indicated in the Nicaraguan
Reply (3.12-3.21), the cays located in the area in dispute, due to their size and other
conditions cannot sustain human habitation and thus have no continental shelf or
economie zone. This does not mean that these cays automatically are entitled to a 12-
mile territorial sea and therefore this question must also be decided in the context of
maritime delimitation and on the basis of equitable criteria
Nicaragua requested that the line of delimitation based on the general direction of the
mainland coast of both Parties, or any other line drawn by the Court based on
equitable principles, should also serve as a lineof attribution of sovereignty over the
cays in the area in dispute. The reason for this was that the minor maritime features
located in the area bad not been the object of clear and significant acts of sovereignty
by either Party. As a matter of fact, neither Party can give a reliable account of the
maritime features involved in the area, much less claim sovereignty over features
whose existence they cannot even attest to.
In the light ofthese considerations, the attribution of maritime spaces to these features
must be seen in the context of the single maritime delimitation that Nicaragua bas
requested. If a full 12 mile territorial sea were attributed to these features, and they
were attributed to Honduras, then this would result in giving a disproportionate
amount of the maritime areas in dispute to Honduras. Besides, if these features were
attributed to Honduras even a territorial sea under 12 miles would also cause
inconvenient results for navigational purposes. Furthermore, not only would the 12
mile territorial sea of sorne of these features eut across the bisector line proposed by
Nicaragua or any other equitable line decided by the Court, but perhaps more
significantly it would certainly eut across the Main Cape Channel.Honduras has attempted to prove it has exercised acts of sovereignty over only 4 of
these features whilst in the area there may be hundreds of such similar features of
which neither Party or any other Authority can give a clear and certain account since
there are no current surveys of the area. As was indicated in the answer to Judge
Keith, "Nicaragua does not know how many islands and features are involved or their
locations since the basic surveys of this area date from the first half of the nineteenth
century and this is an area where these features emerge and disappear periodically and
often." (CR 2007/11, p. 27, par. 69 [Arguello])This is also true for Honduras and it
has certainly not attempted to give information on any but the four cays it has
repeatedly mentioned in its pleadings.
If no acts of sovereignty have been claimed and documented by Honduras apart from
those relating to the 4 cays in question, then there is no reason to presume that the
other cays and rocks in the area appertain to Honduras. If this is so, then what criteria
should be used to bless sorne rocks and cays with 12 miles and others (mostly
unknown) to leave unblessed?
On the other hand, even the acts of sovereignty Honduras claims it has exercised over
these 4 cays are not coupled with any evidence that the use of the waters surrounding
these cays was a significant part of those alleged acts of sovereignty over the cays in
question. There are no fishing activities documented around the waters of these cays
nor any oil activities directly involving the area of the cays. Furthermore, even the
witnesses Honduras has brought forth as supposedly using these cays (many
Jamaicans, for example), do not claim to use the waters around them as fishing
grounds.
It should be noted that irrespective of the direct acts of sovereignty over the cays in
question, it is indisputable that Nicaragua has conclusively demonstrated acts of
sovereignty over the waters around the area of the cays. Without going into an
extensive review of this question it is enough to recall the innumerable maritime
incidents occurring in the maritime area in dispute. In this respect, there can be no
question that the waters around the cays were patrolled and fished by Nicaraguan
authorities or fishermen.
Judge Simma's question is addressed to the hypothetical result that these cays were to
be attributed to Honduras since if they were attributed to Nicaragua no problems
would arise since they would be located to the south of the bisector and no effect
north of this bisector would be attributed to them. In this respect, it is necessary to
recall:
Nicaragua's position is that up to the critical date of 1977, or even up to the 1979 date
suggested by Honduras, the· main acts of sovereignty in the area in dispute were
executed by Nicaragua. This was based on
1. The question of the control of fisheries in the area as exemplified by the turtle
fisheries agreement with the United Kingdom that implied the real, effective
and constant use of the cays themselves as "crawls" or pens for herding the
turtles until their shipment elsewhere. There were no comparable and duly
proven acts by Honduras up to the critical date.
2. The long standing control and sovereignty over the only maritime port in the
area: that of Cabo Gracias a Dios. This fact, coupled to the artisanal and rudimentary fishing capacity of the population, emphasizes the control of the
maritime spaces implied by the sovereignty over the only maritime port in the
area.
3. The adjacency or proximity of these cays to the Nicaraguan mainland. The
generally accepted charts of the area based on surveys conducted around the
time of independence, prove that these cays were located nearer to the
Nicaraguan coastline. This fact must also be coupled to the uninterrupted
succession of cays located generally under 6 miles from each other and
stemming from the Nicaraguan mainland further south of the area in dispute
and running up to the cays south of the Mainland Navigation Channel, that
implies that facilitated the movement even of artisanal fishermen in
rudimentary crafts moving from one cay to the other. This option was not open
to Honduran fishermen operating from the mainland who would have to
traverse more than 24 miles of open sea.
Finally, it may be noted that there are examples in case law that confirm that small
islands need not receive ali their territorial sea entitlement in a maritime delimitation
involving other coasts beyond 12 nautical miles. Two recent ones are the cases of
Qatar/Bahrain and Eritrea/Yemen. (See also CR 2007111,p.43, par. 31 [Pellet])
Written reply of the Republic of Nicaragua to the question put by Judge Simma at the public sitting held on 20 March 2007