Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING TERRITORIAL AND MARITIME DISPUTE BETWEEN NICARAGUA AND HONDURAS IN THE CARIBBEAN SEA (NICARAGUA v. HONDURAS) – 8 October 2007

JUDGMENT
PRESENT: PRESIDENT Higgins; VICE-PRESIDENT Al-Khasawneh; JUDGES Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov; JUDGES AD HOC Torres Bernardez, Gaja ; REGISTRAR Couvreur.
In the case concerning territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea,
between the Republic of Nicaragua, represented by
H.E. Mr. Carlos Jose Arguello Gomez, Ambassador of the Republic of Nicaragua to the Kingdom of the Netherlands,
as Agent, Counsel and Advocate;
H.E. Mr. Samuel Santos, Minister for Foreign Affairs of the Republic of Nicaragua ;
YEAR 2007 8 October 2007
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United Nations International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford,
member of the Institut de droit international, Distinguished Fellow, All Souls College, Oxford, Mr. Alex Oude Elferink, Research Associate, Netherlands Institute for the
Law of the Sea, Utrecht University, Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the United Nations International Law Commission,
Mr. Antonio Remiro Brotons, Professor of International Law, Universidad
Autonoma, Madrid, as Counsel and Advocates;
Mr. Robin Cleverly, M.A., D.Phil, C.Geol, F.G.S., Law of the Sea Consultant, Admiralty Consultancy Services, Mr. Dick Gent, Law of the Sea Consultant, Admiralty Consultancy Services,
as Scientific and Technical Advisers;
Ms Tania Elena Pacheco Blandino, First Secretary, Embassy of the Republic
of Nicaragua in the Kingdom of the Netherlands, Ms Nadine Susani, Doctor of Public Law, Centre de droit international de
Nanterre (CEDIN), University of Paris X-Nanterre, as Assistant Advisers;
Ms Gina Hodgson, Ministry of Foreign Affairs of the Republic of Nicaragua,
Ms Ana Mogorron Huerta,
as Assistants,
and
the Republic of Honduras, represented by
H.E. Mr. Max Velasquez Diaz, Ambassador of the Republic of Honduras to
the French Republic, H.E. Mr. Roberto Flores Bermudez, Ambassador of the Republic of Hon-duras to the United States of America, as Agents;
H.E. Mr. Julio Rendon Barnica, Ambassador of the Republic of Honduras
to the Kingdom of the Netherlands, as Co-Agent;
Mr. Pierre-Marie Dupuy, Professor of Public International Law, University of Paris (Pantheon-Assas), and the European University Institute in Florence,
Mr. Luis Ignacio Sanchez Rodriguez, Professor of International Law, Uni-
versidad Complutense de Madrid, Mr. Christopher Greenwood, C.M.G., Q.C., Professor of International Law,
London School of Economics and Political Science, Mr. Philippe Sands, Q.C., Professor of Law, University College London,
Mr. Jean-Pierre Queneudec, Professor emeritus of International Law at the
University of Paris I (Pantheon-Sorbonne), Mr. David A. Colson, LeBoeuf, Lamb, Green & MacRae, L.L.P., Washing-
ton, D.C., member of the California State Bar and District of Columbia Bar,
Mr. Carlos Jimenez Piernas, Professor of International Law, Universidad de
Alcala, Madrid, Mr. Richard Meese, avocat a la Cour d’appel de Paris, as Counsel and Advocates;
H.E. Mr. Milton Jimenez Puerto, Minister for Foreign Affairs of the Republic of Honduras,
H.E. Mr. Eduardo Enrique Reina Garcia, Deputy Minister for Foreign
Affairs of the Republic of Honduras, H.E. Mr. Carlos Lopez Contreras, Ambassador, National Counsellor, Ministry of Foreign Affairs of the Republic of Honduras, H.E. Mr. Roberto Arita Quinonez, Ambassador, Director of the Special Bureau on Sovereignty Affairs, Ministry of Foreign Affairs of the Republic of Honduras,
H.E. Mr. Jose Eduardo Martell Mejia, Ambassador of the Republic of Honduras to the Kingdom of Spain, H.E. Mr. Miguel Tosta Appel, Ambassador, Chairman of the Honduran Demarcation Commission, Ministry of Foreign Affairs of the Republic of Honduras,
H. E. Ms Patricia Licona Cubero, Ambassador, Adviser for Central American Integration Affairs, Ministry of Foreign Affairs of the Republic of Honduras,
as Advisers ;
Ms Anjolie Singh, Assistant, University College London, member of the Indian Bar,
Ms Adriana Fabra, Associate Professor of International Law, Universitat
Autonoma de Barcelona, Mr. Javier Quel Lopez, Professor of International Law, Universidad del Pais vasco,
Ms Gabriela Membreno, Assistant Adviser to the Minister for Foreign
Affairs of the Republic of Honduras, Mr. Sergio Acosta, Minister Counsellor, Embassy of the Republic of Honduras in the Kingdom of the Netherlands, as Assistant Advisers ;
Mr. Scott Edmonds, Cartographer, International Mapping, Mr. Thomas D. Frogh, Cartographer, International Mapping, as Technical Advisers.
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
I. On 8 December 1999 the Republic of Nicaragua (hereinafter “Nicaragua”) filed in the Registry of the Court an Application dated the same day, instituting proceedings against the Republic of Honduras (hereinafter “Honduras”) in respect of a dispute relating to the delimitation of the maritime areas appertaining to each of those States in the Caribbean Sea.
In its Application, Nicaragua seeks to found the jurisdiction of the Court on the provisions of Article XXXI of the American Treaty on Pacific Settlement, officially designated, according to Article LX thereof, as the “Pact of Bogota” (hereinafter referred to as such), as well as on the declarations accepting the jurisdiction of the Court made by the Parties, as provided for in Article 36, paragraph 2, of the Statute of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar immediately communicated a certified copy of the Application to the Government of Honduras; and pursuant to paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.
3. Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the Registrar addressed to States parties to the Pact of Bogota the notifications provided for in Article 63, paragraph 1, of the Statute of the Court. In accordance with the provisions of Article 69, paragraph 3, of the Rules of Court, the Registrar moreover addressed to the Organization of American States (hereinafter “OAS”) the notification provided for in Article 34, paragraph 3, of the Statute. The Registrar subsequently transmitted to this organization copies of the pleadings filed in the case and asked its Secretary-General to inform him whether or not it intended to present observations in writing within the meaning of Article 69, paragraph 3, of the Rules of Court. The OAS indicated that it did not intend to submit any such observations.
4. Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the Registrar addressed to States parties to the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter “UNCLOS”) the notifications provided for in Article 63, paragraph 1, of the Statute. In addition, the Registrar addressed to the European Union, which is also party to that Convention, the notification provided for in Article 43, paragraph 2, of the Rules of Court, as adopted on 29 September 2005, and asked that organization whether or not it intended to furnish observations under that provision. In response, the Registrar was informed that the European Union did not intend to submit observations in the case.
5. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise its right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Nicaragua chose Mr. Giorgio Gaja and Honduras first chose Mr. Julio Gonzalez Campos, who resigned on 17 August 2006, and subsequently Mr. Santiago Torres Bernardez.
6. By an Order dated 21 March 2000, the President of the Court fixed 21 March 2001 and 21 March 2002, respectively, as the time-limits for the filing of the Memorial of Nicaragua and the Counter-Memorial of Honduras ; those pleadings were duly filed within the time-limits so prescribed.
7. At the time of filing of the Counter-Memorial, Honduras also filed two sets of additional documents which were not produced as annexes thereto, but were, according to Honduras, provided only for informational purposes. At a meeting held by the President of the Court with the Agents of the Parties on 5 June 2002 both Parties agreed on the procedure to be followed with regard to those additional documents. In particular, it was agreed that within three weeks following that meeting, Honduras would inform the Registry which of the additional documents it intended to produce as annexes to the said Counter- Memorial under Article 50 of the Rules of Court, and that by 13 September 2002 Honduras would file those annexes in the Registry. In accordance
with the agreed procedure, by a letter of 25 June 2002, the Co-Agent of Honduras provided the Registry with a list indicating which of the additional documents were to be produced as annexes. Those additional annexes to the Counter-Memorial of Honduras were duly filed within the time-limit agreed upon.
8. By an Order of 13 June 2002, the Court authorized the submission of a Reply by Nicaragua and a Rejoinder by Honduras, and fixed 13 January 2003 and 13 August 2003 as the respective time-limits for the filing of those pleadings. The Reply of Nicaragua and the Rejoinder of Honduras were filed within the time-limits so prescribed.
9. By letter of 22 May 2001, the Government of Colombia requested to be furnished with copies of the pleadings and documents annexed thereto. Having ascertained the views of the Parties pursuant to Article 53, paragraph 1, of the Rules of Court, the Court decided to grant that request. The Registrar communicated that decision to the Government of Colombia and to the Parties by letters of 29 June 2001. By letter of 6 May 2003 the Government of Jamaica requested to be furnished with copies of the pleadings and documents annexed thereto. Having ascertained the views of the Parties pursuant to Article 53, paragraph 1, of the Rules of Court, the Court decided to grant that request. The Registrar communicated that decision to the Government of Jamaica and to the Parties by letters of 30 May 2003.
By letter of 31 August 2004, the Government of El Salvador requested to be furnished with copies of the pleadings and annexed documents in the case. Having ascertained the views of the Parties pursuant to Article 53, paragraph 1, of the Rules of Court, the Court decided that it was not appropriate to grant that request. The Registrar communicated that decision to the Government of El Salvador and to the Parties by letters dated 20 October 2004.
10. By a joint letter of 9 February 2005, the Agent of Nicaragua and the Co-Agent of Honduras communicated to the Court a document signed at Tegucigalpa on 1 February 2005, whereby the Minister for Foreign Affairs of Nicaragua and the Secretary of State for Foreign Affairs of Honduras made known to the Court the wishes of their respective Heads of State regarding the scheduling of the hearings in the case.
11. By letter of 8 September 2006, the Government of El Salvador requested once again to be furnished with copies of the pleadings and annexed documents in the case. Having ascertained the views of the Parties pursuant to Article 53, paragraph 1, of the Rules of Court, the Court decided that it was not appropriate to grant that request. The Registrar communicated that decision to the Government of El Salvador and to the Parties by letters dated 16 November 2006.
12. On 2 February 2007, the Agent of Nicaragua informed the Court that his Government wished to produce 12 new documents, namely 11 letters and one satellite image, in accordance with Article 56 of the Rules of Court. The Court, having ascertained the views of the Honduran Government, decided that as one of the documents formed part of the case file as an annex to the Reply of Nicaragua, it should not be regarded as a new document, and that the satellite image was “part of a publication readily available” pursuant to paragraph 4 of Article 56 of the Rules of Court, and as such could be referred to during the oral proceedings. The Court further decided not to authorize the production of the remaining documents. The Registrar informed the Parties accordingly by letters of 26 February 2007.
13. On 15 February 2007, the Co-Agent of Honduras informed the Court that during the oral proceedings the Honduran Government intended to present a short video. On 5 March 2007, the Registrar informed the Parties that the Court had decided not to accede to Honduras’s request.
14. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court decided, after ascertaining the views of the Parties, that copies of the pleadings and documents annexed would be made available to the public as from the opening of the oral proceedings.
15. Public hearings were held between 5 March and 23 March 2007, at which the Court heard the oral arguments and replies of:
For Nicaragua: H.E. Mr. Carlos Jose Arguello Gomez. Mr. Alex Oude Elferink, Mr. Ian Brownlie, Mr. Antonio Remiro Brotons, Mr. Alain Pellet. For Honduras: H.E. Mr. Max Velasquez Diaz, Mr. Christopher Greenwood, Mr. Luis Ignacio Sanchez Rodriguez, Mr. Philippe Sands, Mr. Carlos Jimenez Piernas, Mr. Jean-Pierre Queneudec, Mr. Pierre-Marie Dupuy, Mr. David A. Colson, H.E. Mr. Roberto Flores Bermudez.
16. At the hearings, questions were put by Members of the Court and replies given orally and in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Honduras commented orally on the oral replies given by Nicaragua. Pursuant to Article 72 of the Rules of Court, each Party presented written observations on the written replies received from the other.
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17. In its Application, the following requests were made by Nicaragua:
“Accordingly, the Court is asked to determine the course of the single maritime boundary between the areas of territorial sea, continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Honduras, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary.
This request for the determination of a single maritime boundary is subject to the power of the Court to establish different delimitations, 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.
Whilst the principal purpose of this Application is to obtain a declaration concerning the determination of the maritime boundary or boundaries, the Government of Nicaragua reserves the right to claim compensation for interference with fishing vessels of Nicaraguan nationality or vessels licensed by Nicaragua, found to the north of the parallel of latitude
14° 59′ 08″ 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 Government of Nicaragua, further, reserves the right to supplement or to amend the present Application as well as to request the Court to indicate provisional measures which might become necessary in order to preserve the rights of Nicaragua.”
18. In the written proceedings, the following submissions were presented by the Parties :
On behalf of the Government of Nicaragua, in the Memorial:
“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 graphic, constitutes the boundary for the purposes of the delimitation of the disputed areas of the continental shelf and exclusive economic 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 graphic, 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 absence of a sector coterminous with the mouth of the River Coco and with the terminus of the land boundary”;
in the Reply:
“In accordance with Article 49, paragraph 4, of the Rules of Court, the Government of the Republic of Nicaragua confirms the Submissions previously made in the Memorial submitted to the Court on 21 March 2001.”
On behalf of the Government of Honduras, in the Counter-Memorial:
“Having regard to the considerations set forth in this Counter-Memorial and, in particular, the evidence put to the Court by the Parties,
May it please the Court to adjudge and declare that :
1. The boundary for the purpose of the delimitation of the disputed areas of the territorial sea, and extending to the outer limit of the territorial sea, is a straight and horizontal line drawn from the current mouth of the River Coco, as agreed between the Parties, to the 12-mile limit at a point where it intersects with the 15th parallel (14°59.8′); and
2. The boundary for the purpose of the delimitation of the disputed areas of the continental shelf and Exclusive Economic Zone in the region is a line extending from the above-mentioned point at the 12-mile limit, eastwards along the 15th parallel (14° 59.8′) until it reaches the longitude at which the 1986 Honduras/Colombian maritime boundary begins (meridian 82); and further or in the alternative;
3. In the event that the Court decides not to adopt the line indicated above for the delimitation of the continental shelf and Exclusive Economic Zone, then the Court should declare a line extending from the 12-mile limit, eastwards down to the 15th parallel (14° 59.8′) and give due effect to the islands under Honduran sovereignty which are located immediately to the north of the 15th parallel”;
in the Rejoinder:
“Having regard to the considerations set forth in the Honduran Counter-Memorial and this Rejoinder,
May it please the Court to adjudge and declare that :
1. From the point decided by the Honduras/Nicaragua Mixed Commission in 1962 at 14° 59.8′ N latitude, 83° 08.9′ W longitude to 14° 59.8′ N latitude, 83° 05.8′ W longitude, the demarcation of the fluvial boundary line and the delimitation of the maritime boundary line which divide the jurisdictions of Honduras and Nicaragua shall be the subject of negotiation between the Parties to this case which shall take into account the changing geographical characteristics of the mouth of the River Coco; and
2. East of 14° 59.8′ N latitude, 83° 05.8′ W longitude, the single maritime boundary which divides the maritime jurisdictions of Honduras and Nicaragua follows 14° 59.8′ N latitude until the jurisdiction of a third State is reached.”
19. At the oral proceedings, the following submissions were presented by the
Parties :
On behalf of the Government of Nicaragua, At the hearing of 20 March 2007:
“Having regard to the considerations set forth in the Memorial, Reply and hearings 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 described in the pleadings, drawn from a fixed point approximately 3 miles from the river mouth in the position 15° 02′ 00″ N and 83° 05′ 26″ W, constitutes the single maritime boundary for the purposes of the delimitation of the disputed areas of the territorial sea, exclusive economic zone and continental shelf in the region of the Nicaraguan Rise.
The starting-point of the delimitation is the thalweg of the main mouth of the River Coco such as it may be at any given moment as determined by the Award of the King of Spain of 1906.
Without prejudice to the foregoing, the Court is requested to decide the question of sovereignty over the islands and cays within the area in dispute.”
On behalf of the Government of Honduras, At the hearing of 23 March 2007:
“Having regard to the pleadings, written and oral, and to the evidence
submitted by the Parties,
May it please the Court to adjudge and declare that:
1. The islands Bobel Cay, South Cay, Savanna Cay and Port Royal Cay, together with all other islands, cays, rocks, banks and reefs claimed by Nicaragua which lie north of the 15th parallel are under the sovereignty of the Republic of Honduras.
2. The starting-point of the maritime boundary to be delimited by the Court shall be a point located at 14° 59.8′ N latitude, 83° 05.8’W longitude. The boundary from the point determined by the Mixed Commission in 1962 at 14° 59.8′ N latitude, 83° 08.9′ W longitude to the starting-point of the maritime boundary to be delimited by the Court shall be agreed between the Parties to this case on the basis of the Award of the King of Spain of 23 December 1906, which is binding upon the Parties, and taking into account the changing geographical characteristics of the mouth of the River Coco (also known as the River Segovia or Wanks).
3. East of the point at 14° 59.8′ N latitude, 83° 05.8′ W longitude, the single maritime boundary which divides the respective territorial seas, exclusive economic zones and continental shelves of Honduras and Nicaragua follows 14° 59.8′ N latitude, as the existing maritime boundary, or an adjusted equidistance line, until the jurisdiction of a third State is reached.”
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2. Geography
2.1. Configuration of the Nicaraguan and Honduran Coasts
20. The area within which the delimitation sought in the present case is to be carried out lies in the basin of the Atlantic Ocean between 9° to 22° N and 89° to 60° W, commonly known as the Caribbean Sea (for the general geography of the area, see below, p. 670, sketch-map No. 1). The Caribbean Sea embraces an area of approximately 2,754,000 square kilo-metres (1,063,000 square miles) and is located between the landmasses of North and South America. The Caribbean Sea is an arm of the Atlantic Ocean partially enclosed to the north and east by the islands of the West Indies, and bounded to the south and west by South and Central America.
21. The continental coasts of Venezuela, Colombia, and Panama bound the Caribbean Sea to the south and Costa Rica, Nicaragua, Honduras, Guatemala, Belize, and the Yucatan Peninsula of Mexico bound it to the west. To the north and east it is bounded by the Greater Antilles islands of Cuba, Hispaniola, Jamaica, and Puerto Rico and by the Lesser Antilles, consisting of the island arc that extends from the Virgin Islands in the north-east to the islands of Trinidad and Tobago, off the Venezuelan coast, in the south-east.
22. The Caribbean Sea is divided into four main submarine basins that are separated from one another by submerged ridges and rises. These are the Yucatan, Cayman, Colombian and Venezuelan basins. The northern-most Yucatan Basin is separated from the Gulf of Mexico by the Yucatan Channel, which runs between the island of Cuba and the Yucatan Penin-sula of Mexico. The Cayman Basin, which is located further south, is partially separated from the Yucatan Basin by the Cayman Ridge that extends from the southern part of Cuba toward the Central American State of Guatemala and, midway, rises to the surface to form the Cayman Islands.
23. Nicaragua and Honduras are located in the south-western part of the Caribbean Sea. To the south of Nicaragua lie Costa Rica and Panama and to the east Nicaragua faces the mainland coast of Colombia. To the north-west of Honduras lie Guatemala, Belize and Mexico and to the north Honduras faces Cuba and the Cayman Islands. Finally, Jamaica is situated to the north-east of Nicaragua and Honduras. The south-western tip of the island of Jamaica is about 340 nautical miles distant from the mouth of the River Coco where the land boundary between Nicaragua and Honduras terminates on the Caribbean coast.
24. The Nicaraguan coastal front on the Caribbean Sea spans around 480 kilometres. The coast runs slightly west of south after Cape Gracias a Dios all the way to the Nicaraguan border with Costa Rica except for the eastward protrusion at Punta Gorda (14° 19′ N latitude).
25. Honduras, for its part, has a Caribbean coastal front of approxi-mately 640 kilometres that runs generally in an east-west direction between the parallels 15° to 16° of north latitude. The Honduran segment of the Central American coast along the Caribbean continues its northward extension beyond Cape Gracias a Dios to Cape Falso (15° 14′ N latitude) where it begins to swing towards the west. At Cape Camaron (15° 59′ N latitude) the coast turns more sharply so that it runs almost due west all the way to the Honduran border with Guatemala.
26. The two coastlines roughly form a right angle that juts out to sea. The convexity of the coast is compounded by the cape formed at the mouth of the River Coco, which generally runs east as it nears the coast and meets the sea at the eastern tip of Cape Gracias a Dios. Cape Gracias a Dios marks the point of convergence of both States’ coastlines. It abuts a concave coastline on its sides and has two points, one on each side of the margin of the River Coco separated by a few hundred metres.
27. The continental margin off the east coast of Nicaragua and Hon-duras is generally termed the “Nicaraguan Rise”. It takes the form of a relatively flat triangular shaped platform, with depths around 20 metres. Approximately midway between the coast of those countries and the coast of Jamaica, the Nicaraguan Rise terminates by deepening abruptly to depths of over 1,500 metres. Before descending to these greater depths the Rise is broken into several large banks, such as Thunder Knoll Bank and Rosalind Bank (also known as Rosalinda Bank) that are separated from the main platform by deeper channels of over 200 metres. In the shallow area of the ridge close to the mainland of Nicaragua and Honduras there are numerous reefs, some of which reach above the water surface in the form of cays.
28. Cays are small, low islands composed largely of sand derived from the physical breakdown of coral reefs by wave action and subsequent reworking by wind. Larger cays can accumulate enough sediment to allow for colonization and fixation by vegetation. The tropical shallow- water conditions of the western Caribbean are conducive for coral reef growth. Cays, and especially the smaller ones, are extremely vulnerable to tropical storms and hurricanes which occur frequently in the Caribbean.
29. The insular features present on the continental shelf in front of Cape Gracias a Dios, to the north of the 15th parallel, include Bobel Cay, Savanna Cay, Port Royal Cay and South Cay, located between 30 and 40 nautical miles east of the mouth of the River Coco.
In this Judgment, the names of the maritime features which appear in both the English and the French text and sketch-maps are those most commonly used, whether Spanish or English.
30. The area to the north-east of Cape Gracias a Dios also includes a number of important fishing banks located between 60 and 170 nautical miles from the mouth of the River Coco. Of particular importance are Middle Bank, Thunder Knoll Bank, Rosalind Bank and Gorda Bank.
2.2. Geomorphology of the Mouth of the River Coco
31. The land area abutting upon the maritime areas in dispute, which is known as the Miskito or Mosquito Coast, is one of deltas, sandbars, and lagoons. It is a coast where extensive and rapid morphological changes have occurred. As a result, the coast north and south of Cape Gracias a Dios is of a typical accumulative type: the shoreline is formed by long stretching sandy barrier islands or spits. Many of those islands and spits migrate constantly and slowly enclose lagoons which eventually will be filled with fine sediment and become dry land. A collection of coastal lagoons extends from Cape Camaron in Honduras to Bluefields, a town in the south of the Nicaraguan Caribbean coast. This chain of lagoons is separated from the sea by thin sand barriers. These lagoons are more in the nature of shallow pools formed by the rivers at their mouths than inroads from the sea. Continuous sediments are deposited in them and sand barriers obstruct their entrance. The most notable effect is the rapid
accretion and inevitable advance of the coastal front due to the constant deposition of terrigenous sediments carried by the rivers to the sea. The strong erosion of the mountains in the interior, the abundant rain and the considerable flow on the rivers that drain the Caribbean slope of the region cause this deposition.
32. The River Coco is the longest river of the Central American isthmus and bears one of the largest volumes of water. From a geomorpho- logical point of view the mouth of the River Coco is a typical delta which forms a protrusion of the coastline forming a cape: Cape Gracias a Dios. All deltas are by definition geographical accidents of an unstable nature and suffer changes in size and form in relatively short periods of time. The River Coco has been progressively projecting Cape Gracias a Dios towards the sea carrying with it huge quantities of alluvium. The sediments deposited by the River Coco are dispersed by a network of diverging and shifting river channels, a process which gives rise to a deltaic plain. The hierarchy of the river channels changes rapidly: the main channels may quickly become secondary channels and vice versa. The accumulated delta sediments are subsequently transported and redepos- ited along the Honduran coast by the Caribbean Current and along the Nicaraguan coast by the Colombia-Panama Gyre (a circular current running anticlockwise along the Nicaraguan coast). In sum, both the delta of the River Coco and even the coastline north and south of it show a very active morpho-dynamism. The result is that the river mouth is constantly changing its shape, and unstable islands and shoals form in the mouth where the river deposits much of its sediment.
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3. Historical Background
33. Both Nicaragua and Honduras, which had been under the rule of Spain, became independent States in 1821. Thereafter, Nicaragua and Honduras, together with Guatemala, El Salvador, and Costa Rica, formed the Federal Republic of Central America, also known as the United Provinces of Central America, which existed from 1823 to 1840. In 1838 Nicaragua and Honduras seceded from the Federation, each maintaining the territory it had before. The Federation disintegrated in the period between 1838 and 1840.
34. On 25 July 1850, the Republic of Nicaragua and the Queen of Spain signed a treaty recognizing Nicaragua’s independence from Spain. According to the terms of this Treaty the Queen of Spain recognized as “free, sovereign and independent the Republic of Nicaragua with all its territories that now belong to it from sea to sea, or that will later belong to it” (Art. II). The Treaty also stated that the Queen of Spain relinquished
“the sovereignty, rights and actions she holds over the American ter-ritory located between the Atlantic and the Pacific sea, with its adja-cent islands, known before by the name of the province of Nicaragua, now Republic of the same name, and over the remainder of the territories that have incorporated into said Republic” (Art. I).
The names of the adjacent islands pertaining to Nicaragua were not specified in the Treaty.
35. On 15 March 1866, the Republic of Honduras and the Queen of Spain signed a treaty recognizing Honduras’s independence from Spain. According to the terms of this Treaty the Queen of Spain recognized the Republic of Honduras
“as a free, sovereign and independent state, which comprises the entire territory that was the province of that name during the period of Spanish domination, this territory being bounded in the East, Southeast and South by the Republic of Nicaragua” (Art. I).
The Treaty also stated that the Queen renounced “the sovereignty, rights and claims that she has in respect of the territory of the said Republic”. The Treaty recognized Honduran territory as comprising “the adjacent islands that lie along its coasts in both oceans” without identifying these islands by name.
36. Nicaragua and Honduras later attempted to delimit their boundary by signing the Ferrer-Medina Treaty in 1869 and the Ferrer-Uriarte Treaty in 1870, but neither treaty entered into force.
37. On 7 October 1894 Nicaragua and Honduras successfully concluded a general boundary treaty known as the Gamez-Bonilla Treaty which entered into force on 26 December 1896 (I.C.J. Reports 1960, pp. 199-202). Article II of the Treaty, according to the principle of uti possidetis juris, provided that “each Republic is owner of the territory which at the date of independence constituted respectively, the provinces of Honduras and Nicaragua”. Article I of the Treaty further provided for the establishment of a Mixed Boundary Commission to demarcate the boundary between Nicaragua and Honduras:
“The Governments of Honduras and Nicaragua shall appoint rep-resentatives who, duly authorized, shall organize a Mixed Boundary Commission, whose duty it shall be to settle in a friendly manner all pending doubts and differences, and to demarcate on the spot the dividing line which is to constitute the boundary between the two Republics.”
38. The Commission, which met from 1900 to 1904, fixed the boundary from the Pacific Ocean at the Gulf of Fonseca to the Portillo de Teo- tecacinte, which is located approximately one third of the way across the land territory, but it was unable to determine the boundary from that point to the Atlantic coast. Pursuant to the terms of Article III of the
Gamez-Bonilla Treaty, Nicaragua and Honduras subsequently submitted their dispute over the remaining portion of the boundary to the King of Spain as sole arbitrator. King Alfonso XIII of Spain handed down an Arbitral Award on 23 December 1906, which drew a boundary from the mouth of the River Coco at Cape Gracias a Dios to Portillo de Teote- cacinte. The operative part of the Award stated 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 Pio 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 southern shore of the said principal mouth with the said Island of San Pio, 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 Pio.
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 line will depart from the River Segovia, continuing along the thalweg 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 cor-responds to the demarcation of the Sitio de Teotecacinte in accord-ance with the demarcation made in 1720 to terminate at the Portillo de Teotecacinte in such a manner that said Sitio remains wholly within the jurisdiction of Nicaragua.” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, pp. 202-203.)
39. Nicaragua subsequently challenged the validity and binding char-acter of the Arbitral Award in a Note dated 19 March 1912. After several failed attempts to settle this dispute and a number of boundary incidents in 1957, the Council of the OAS took up the issue that same year. Through the mediation of an ad hoc Committee established by the Council of the OAS, Nicaragua and Honduras agreed to submit their dispute to the International Court of Justice.
40. In its Application instituting proceedings, filed on 1 July 1958, Honduras requested the Court to adjudge and declare that the failure by Nicaragua to give effect to the Arbitral Award “constituted] a breach of an international obligation” (ibid., p. 195) and that Nicaragua was under an obligation to give effect to the Award. Nicaragua, for its part, requested the Court to adjudge and declare that the decision rendered by the King of Spain did not “possess the character of a binding arbitral award”, that in any event it was “incapable of execution by reason of its omissions, contradictions and obscurities” and that Nicaragua and Honduras were “in respect of their frontier in the same legal situation as before 23 December 1906” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, pp. 198 and 199), the date of the Award.
41. In its Judgment, having considered the arguments of the Parties and evidence in the case file, the Court first found that “the Parties [had] followed the procedure that had been agreed upon for submitting their respective cases” to an arbitrator in accordance with the provisions of the Gamez-Bonilla Treaty. Thus the designation of King Alfonso XIII as arbitrator entrusted with the task of ruling on the boundary dispute between the two Parties was valid. The Court then examined Nicaragua’s contention that the Gamez-Bonilla Treaty had lapsed before the King of Spain had agreed to act as arbitrator and found that “the Gamez-Bonilla Treaty was in force till 24 December 1906, and that the King’s acceptance on 17 October 1904 of his designation as arbitrator was well within the currency of the Treaty”.
42. The Court further considered that,
“having regard to the fact that the designation of the King of Spain as arbitrator was freely agreed to by Nicaragua, that no objection was taken by Nicaragua to the jurisdiction of the King of Spain as arbitrator either on the ground of irregularity in his designation as arbitrator or on the ground that the Gamez-Bonilla Treaty had lapsed even before the King of Spain had signified his acceptance of the office of arbitrator, and that Nicaragua fully participated in the arbitral proceedings before the King, it is no longer open to Nicaragua to rely on either of these contentions as furnishing a ground for the nullity of the Award” (ibid., p. 209).
43. The Court then turned to Nicaragua’s allegation that the Award was “a nullity” on the grounds that it had been vitiated by (a) “excess of jurisdiction”, (b) “essential error” and (c) “lack or inadequacy of reasons in support of the conclusions arrived at by the Arbitrator”.
44. The Court stated that Nicaragua “by express declaration and by conduct, recognized the Award as valid and it [was] no longer open to Nicaragua to go back upon that recognition and to challenge the validity of the Award”. Even in the absence of such recognition “the Award would, in the judgment of the Court, still have to be recognized as valid” for the following reasons.
First, the Court was unable to uphold the claim that the King of Spain had gone beyond the authority conferred upon him. Second, the Court added that it had not been able to discover in the arguments of Nicaragua any precise indication of “essential error” which would have had the effect, as alleged by Nicaragua, “of rendering the Award a nullity”. In this regard, the Court observed that “[t]he instances of ‘essential error’ that Nicaragua [had] brought to the notice of the Court amount[ed] to no more than the evaluation of documents and of other evidence submitted
to the arbitrator”. Third, the Court rejected the last ground of nullity raised by Nicaragua by concluding that
“an examination of the Award show[ed] that it deal[t] in logical order and in some detail with all relevant considerations and that it contain[ed] ample reasoning and explanations in support of the con-clusions arrived at by the arbitrator” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, pp. 215 and 216).
45. The Court finally dealt with the argument by Nicaragua that the Award was not capable of execution by reason of its “omissions, contra-dictions and obscurities”. In this regard, the Court noted that
“In view of the clear directive in the operative clause [fixing the common boundary point on the coast of the Atlantic as the mouth of the river Segovia or Coco, where it flows out into the sea] and the explanations in support of it in the Award, the Court [did] not consider that the Award [was] incapable of execution by reason of any omissions, contradictions or obscurities.”
46. In the operative part of its Judgment, the Court found that the Award made by the King of Spain on 23 December 1906 was valid and binding and that Nicaragua was under an obligation to give effect to it (ibid., p. 217).
47. As Nicaragua and Honduras could not thereafter agree on how to implement the 1906 Arbitral Award, Nicaragua requested the intervention of the Inter-American Peace Committee. The Committee subsequently established a Mixed Commission which completed the demarcation of the boundary line with the placement of boundary markers in 1962. The Mixed Commission determined that the land boundary would begin at the mouth of the River Coco, at 14° 59.8′ N latitude and 83° 08.9′ W longitude.
48. From 1963 to 1979, Honduras and Nicaragua generally enjoyed friendly relations. The first efforts at bilateral negotiations between the Parties on matters relating to the maritime boundary in the Caribbean were initiated at the request of Nicaragua, by means of a diplomatic Note dated 11 May 1977. In this communication addressed to the Minister for Foreign Affairs of Honduras, the Ambassador of Nicaragua to Honduras noted that his “Government wish[ed] to initiate conversations leading to the determination of the definitive marine and sub-marine delimitation in the Atlantic and Caribbean Sea zone”.
By a diplomatic Note of 20 May 1977 the Minister for Foreign Affairs of Honduras replied that his “Government accept[ed] with pleasure the opening of negotiations” on the maritime delimitation. However these negotiations made no progress consequent upon the Sandinista revolution that toppled the Somoza Government in July 1979. In the period that followed until 1990 (when the new Nicaraguan Government of Vio- leta Chamorro was sworn into office), relations between Nicaragua and Honduras deteriorated.
49. On 21 September 1979, Honduras sent a diplomatic Note to Nica-ragua stating that a Honduran fishing vessel had been attacked by Nica-ragua 8 miles north of the 15th parallel, which, according to the Hondu- ran Note, served “as the limit between Honduras and Nicaragua”. On 24 September 1979, Nicaragua sent a diplomatic Note in reply offering assurance that an urgent investigation would be carried out regarding the “capture [of a] Honduran motor fishing vessel . . . and crew by [a] Hon-duran fishing vessel . . ., being used by Nicaraguan regular forces”. The Nicaraguan Note made no mention of the assertion by Honduras that the 15th parallel served as the boundary line between the two countries.
50. Nicaragua, on 19 December 1979, enacted the Continental Shelf and Adjacent Sea Act. The Preamble to that Act stated that prior to 1979,
“foreign intervention [had] not permit[ted] the full exercise by the People of Nicaragua of [the nation’s] rights over the Continental Shelf and Adjacent Sea — rights which corresponded] to the Nica- raguan Nation by history, geography and International Law”.
Article 2 of the Act provided that “[t]he sovereignty and jurisdiction of Nicaragua extends over the sea adjacent to its seacoasts for 200 nautical miles”. The official map of the continental shelf of Nicaragua of 1980, and the official map of the Republic dated 1982, both included a box comprising Rosalind, Serranilla and adjacent areas up to parallel 17°.
51. Honduras promulgated a new Constitution on 11 January 1982, which provided in Article 10 that, among others, the cays of Palo de Campeche and Media Luna and the banks of Salmedina, Provi- dencia, De Coral, Rosalind and Serranilla “and all others located in the Atlantic that historically, geographically and juridically belong to it” were Honduran. Article 11 of the 1982 Honduran Constitution further declared an exclusive economic zone of 200 nautical miles.
52. On 23 March 1982, Honduras sent a diplomatic Note to Nicaragua with regard to an incident on 21 March 1982, involving the capture of four Honduran fishing vessels to the north of the 15th parallel by two Nicaraguan coastguard vessels, which had subsequently towed the Hon- duran fishing vessels to a Nicaraguan port, Puerto Cabezas, lying at approximately 14° N latitude. In the Note, Honduras affirmed that the 15th parallel had been traditionally recognized as the boundary line:
“On Sunday the 21st of this month, two coastguard launches of the Sandinista Navy penetrated as far as Bobel and Media Luna Cays, 16 miles to the North of Parallel 15, which has been tradition-
ally recognised by both countries to be the dividing line in the Atlantic Ocean. In flagrant violation of our sovereignty in waters under Honduran jurisdiction, they proceeded to capture four Hon- duran fishing launches and their crews, all of Honduran nationality towing them toward Puerto Cabezas, in Nicaragua.”
53. On 14 April 1982, Nicaragua sent a diplomatic Note in response to Honduras asserting that Nicaragua had never recognized any maritime boundary with Honduras in the Caribbean Sea:
“Your Excellency refers in your Note that on Sunday, March 21st, two of our Coastguard ships ‘penetrated as far as Bobel and Media Luna Cays, 16 miles North of Parallel 15. This has been traditionally recognized by both countries to be the dividing line in the Atlantic.’ This affirmation, to the least, surprises us, since Nicaragua has not recognized any maritime frontier with Honduras in the Caribbean Sea, being undefined until today the maritime boundary between Honduras and Nicaragua in said sea. Nicaragua understands that in Honduras there is a criterion that aspires to establish said Parallel as the boundary line. At no time has Nicaragua recognized it as such since that would imply an attempt against the territorial integrity and national sovereignty of Nicaragua. According to the established rules of international law, territorial matters must be necessarily resolve[d] in treaties validly celebrated and in conformity with the internal dispositions of the contracting States, not having effected to date, any agreement in this regard. Therefore, Nicaragua rejects Your Excellency’s affirmation in the sense that it claims to establish Parallel 15 as the boundary line between our two countries in the Caribbean Sea.”
In the Note, Nicaragua further stated that it considered that negotiations on the delimitation in the Caribbean Sea “should be undertaken through mixed commissions” but that “[i]n the interest of avoiding frictions between [the] two countries” such discussions should be “postponed, in order to wait the adequate moment to proceed with negotiations”.
54. By a diplomatic Note dated 3 May 1982, the Minister for Foreign Affairs of Honduras continued the exchange by proposing that, pending a resolution of the problem, a temporary line or zone be created which would be without prejudice to the maritime rights that either State might claim in the future in the Caribbean Sea:
“I agree with Your Excellency when you affirm that the maritime border between Honduras and Nicaragua has not been legally delim-ited. 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 Cape Gracias a Dios.
There is no other way of explaining why it is only since a few months ago that there have occurred, with worrying frequency, border inci-dents between our two countries.
However, I coincide with Your Excellency that this is not the appropriate moment at which to open a discussion on maritime borders . . .
From what both Your Excellency and my Government have expressed, it is clear that our two countries desire the maintenance of peace, and will abstain from introducing new points of controversy in the current circumstances. To this end, however, I consider it necessary to adopt some sort of criterion, albeit informal and transitional, in order to prevent incidents such as that which concerns us now. 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 jurisdiction. I am sure through the frank and cordial dialogue we have already started, we will be able to find a satisfactory solution for both Parties.”
55. On 18 September 1982, Honduras sent a diplomatic Note to Nica-ragua protesting an attack alleged to have been initiated by Nicaragua on that day against a Honduran fishing boat near Bobel and Media Luna cays, north of the 15th parallel.
56. By a diplomatic Note of 19 September 1982, Nicaragua rejected the Honduran proposal to create a temporary line or zone as set out in the Honduran Foreign Minister’s diplomatic Note of 3 May 1982 and further contested Honduras’s version of the facts concerning the attack on a fishing vessel alleged by Honduras in its Note of 18 September 1982. In particular, Nicaragua noted that
“the Government of Nicaragua manifests its deep astonishment at certain affirmations stated by Your Excellency in your Note [of 18 September 1982], in relation to the jurisdictional zone in the Car-ibbean Sea. As we have pointed out in previous Notes, the maritime frontier between Honduras and Nicaragua in the Caribbean Sea is not delimited nor do there exist traditional lines of jurisdiction between our two countries in that zone. This unquestionable reality was already accepted by the Republic of Honduras, in Note No. 254 DSM dated May 3 of the current year, that His Excellency, the Minister of Foreign Affairs of that country, Doctor Edgardo Paz Bar- nica, addressed to the Minister of Nicaragua, Miguel D’Escoto Brockmann, that one of its parts literally expresses: ‘I agree with Your Excellency when you affirm that the maritime frontier between Honduras and Nicaragua has not been legally delimited.'”
57. On 27 June 1984, Honduras sent Nicaragua a diplomatic Note in which it protested in respect of the Nicaraguan official map of 1982 and
requested the map’s rectification. Honduras claimed that the map had wrongfully included the banks and cays of Rosalind and Serranilla which Honduras claimed pertained to it.
58. Accusations and counter accusations over supposed incursions in the disputed maritime area continued throughout the 1980s and the 1990s, including during periods of bilateral negotiations. Numerous incidents involving the capture and/or attack by each State of fishing vessels belonging to the other State in the vicinity of the 15th parallel were recorded in a series of diplomatic exchanges.
59. Honduras concluded a maritime boundary treaty with Colombia on 2 August 1986. On 8 September 1986, Nicaragua sent a diplomatic Note to Honduras stating that the said treaty “pretend[ed] 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”.
60. In response, Honduras sent a diplomatic Note to Nicaragua dated 29 September 1986 stating that the treaty in question
“constitutes the expression of the sovereign will of two States to establish their maritime boundary in areas over which Nicaragua does not exercise and has never exercised any jurisdiction whatsoever, given that it cannot provide .. . historical, geographical or legal grounds to support any claim that those areas belong to it”.
Honduras further indicated in the same Note that it would be willing to enter into negotiations with the Nicaraguan Government with regard to the maritime delimitation.
61. The Parties, through a Joint Declaration of the Foreign Ministers of Honduras and Nicaragua made on 5 September 1990, established a Mixed Commission for Maritime Affairs. According to this Joint Declaration, the purpose of the Commission was “the prevention and solution of maritime problems between both countries”. The Joint Declaration also stated that the Mixed Commission would “examine, as a priority, border issues in the maritime areas of the Gulf of Fonseca and the Atlantic coast, and the fisheries problems derived from the above”. The Mixed Commission met for the first time on 27 May 1991.
62. In a further Joint Declaration of 29 November 1991, the Parties declared that it was “necessary to search for solutions consistent with the ideals for the integration of Central America”. Nicaragua contends that:
“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 specific intention was that Honduras would not ratify the maritime delimitation Treaty she had concluded with Colombia in August 1986. Nicaragua for her part agreed to discontinue the case it had pending against Honduras in the [Central American] Court [of Justice].”
63. The Mixed Commission for Maritime Affairs held its second meeting on 5 August 1992, and was scheduled to meet again on 7 July 1993, but that meeting was postponed. On 24 March 1995, Nicaragua proposed that the Parties seek to examine again the delimitation of maritime areas in the Caribbean Sea. The Mixed Commission for Maritime Affairs was merged on 20 April 1995 with the Commission of Boundary Cooperation to form a new Bi-national Commission, which held its first meeting on 20 April 1995 whereby it was agreed to create a sub-commission in charge of delimitation issues in the Caribbean Sea and demarcation of areas already delimited in the Gulf of Fonseca. The Sub-commission was actually established at the second meeting of the Bi-national Commission held on 15 to 16 June 1995. The Sub-commission however was unable to resolve the delimitation differences in the Caribbean Sea (its last meeting scheduled for 25 April 1997 was cancelled by mutual consent).
64. On 19 April 1995 Honduras sent a diplomatic Note in protest at the capture of a Honduran fishing vessel by Nicaraguan coastguard vessels. On 5 May 1995, Nicaragua sent a diplomatic Note to Honduras in response, reiterating its claims “up to parallel 17 latitude North” that it had first advanced in a Note dated 12 December 1994. Continuing the exchange, Honduras maintained its position that the 15th parallel constituted the maritime boundary.
65. By diplomatic Notes dated 18 and 27 December 1995 sent to the Nicaraguan Minister for Foreign Affairs, Honduras protested the capture of five Honduran fishing vessels and their crew on 17 December 1995 by Nicaraguan coastguards. By Notes dated 20 December 1995 and 6 January 1996, Nicaragua, referring to the seizure of only four Honduran vessels, informed the Honduran Minister for Foreign Affairs, inter alia, that it “[could] not permit the exploitation by third States of its natural resources in its legitimate national maritime areas”.
66. Following these incidents, an ad hoc Commission was constituted as a result of a meeting held between the Presidents of Nicaragua and Honduras on 14 January 1996. The ad hoc Commission held a special meeting on 22 January 1996 in which both the Honduran and Nicara- guan delegations stated that the purpose was to enter into an interim agreement for a provisional common fishing zone in order to avoid the recurrence of the capture of fishing boats. The ad hoc Commission also
met on 31 January 1996. These meetings did not produce any results and were discontinued. Honduras’s proposal for a “common fishing zone . . . ‘three nautical miles to the North and three nautical miles to the South of Parallel 15° 00′ 00″ Latitude North and 82° 00’ 00″ Longitude West'” was rejected by Nicaragua. Nicaragua’s counter-proposal was for the creation of a common fishing zone between the 15th and 17th parallels, and was similarly rejected by Honduras.
67. On 24 September 1997, the Parties signed a Memorandum of Understanding which allowed for the revival of bilateral negotiations on the boundary issues through the constitution of a new Mixed Commission “in order to explore possible solutions to the situations existing in the Gulf of Fonseca, the Pacific Ocean and the Caribbean Sea”. Honduras states that the 1997 Mixed Commission was the last effort at bilateral negotiations between the Parties. According to Nicaragua, 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 Government to ratify four days later the Treaty of August 2, 1986 on Maritime Delimitation with Colombia”.
Honduras states that
“the significance of [the 1986 Treaty between Colombia and Hondu-ras] lies in its recognition by Colombia that the maritime area to the north of the 15th parallel forms part of Honduras, and that the 82nd meridian is the appropriate terminus for the delimitation”.
Nicaragua claims that “[fjuture negotiations became impossible once Honduras took the step of ratifying the Treaty with Colombia”.
68. Nicaragua in its pleadings informed the Court of the fact that on 29 November 1999, it filed an application instituting proceedings against Honduras as well as a request for the indication of provisional measures before the Central American Court of Justice. On 30 November 1999, the Central American Court of Justice entered the case on its docket. The present Court observes that the relevant documents in the public domain, available in Spanish on the website of the Central American Court of Justice (www.ccj.org.ni), reveal the following facts.
69. In the Application, Nicaragua asked the Central American Court of Justice to declare that Honduras, by proceeding to the approval and ratification of the 1986 Treaty between Colombia and Honduras on maritime delimitation, was acting in violation of certain legal instruments of regional integration, including the Tegucigalpa Protocol to the Charter of the Organization of Central American States (that Protocol entered into force on 23 July 1992). In its request for the indication of provisional measures, Nicaragua asked the Central American Court of Justice to order Honduras to abstain from approving and ratifying the 1986 Treaty, until the sovereign interests of Nicaragua in its maritime spaces, the patrimonial interests of Central America and the highest interests of the regional institutions had been “safeguarded”. By Order of 30 November 1999 the Central American Court of Justice ruled that Honduras suspend the procedure of ratification of the 1986 Treaty pending the determination of the merits in the case.
Honduras and Colombia continued the ratification process and on 20 December 1999 exchanged instruments of ratification. On 7 January 2000, Nicaragua made a further request for the indication of provisional measures asking the Central American Court of Justice to declare the nullity of Honduras’s process of ratification of the 1986 Treaty. By Order of 17 January 2000, the Central American Court of Justice ruled that Honduras had not complied with its Order on provisional measures dated 30 November 1999 but considered that it did not have jurisdiction to rule on the request made by Nicaragua to declare the nullity of Hon- duras’s ratification process.
70. In its judgment on the merits, on 27 November 2001 the Central American Court of Justice confirmed the existence of a “territorial pat-rimony of Central America”. The Central American Court of Justice further held that, by having ratified the 1986 Treaty between Colombia and Honduras on maritime delimitation, Honduras had infringed (“ha infringido”) a number of provisions of the Tegucigalpa Protocol to the Charter of the Organization of Central American States, which set out, inter alia, the fundamental objectives and principles of the Central American Integration System, including the concept of the “territorial patrimony of Central America”.
71. Throughout the 1990s several diplomatic Notes were also exchanged with regard to the Parties’ publication of maps concerning the area in dispute. Among them was a Note of 7 April 1994 sent by the Honduran Minister for Foreign Affairs protesting Nicaragua’s circulation of an official map of Nicaragua, displaying an area denominated the “Nicaraguan Rise”. The map depicted certain banks and cays, including Serranilla, as pertaining to Nicaragua. On 14 April 1994, Nicaragua responded to Honduras’s protest at said map, stating that
“[w]ithout prejudice of the rights that correspond to Nicaragua, [the Honduran Government] will have observed that the official map of the Republic of Nicaragua, clarifies most strictly and categorically, that the maritime frontiers in the Caribbean Sea have not been legally delimited”.
In 1994, Honduras published an official map of Honduras that included, among other features, Media Luna Cays, Alargado Reef, Rosalind Bank, and Serranilla Banks and Cays within the “Honduran insular possessions in the Caribbean Sea”. This publication elicited a diplomatic Note from Nicaragua dated 9 June 1995, in which it protested
the 1994 Honduran map and asserted that Nicaragua possessed insular and maritime rights in the area north of the 15th parallel.
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4. Positions of the Parties: A General Overview 4.1. SUBJECT-MATTER OF THE DISPUTE
72. In its Application and written pleadings Nicaragua asked the Court to determine the course of the single maritime boundary between the areas of territorial sea, continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Honduras in the Caribbean Sea. Nicaragua states that it has consistently maintained the position that its maritime boundary with Honduras in the Caribbean Sea has not been delimited. During the oral proceedings, Nicaragua also made a specific request that the Court pronounce on sovereignty over islands located in the disputed area to the north of the boundary line claimed by Honduras running along 14° 59.8′ North latitude (hereinafter, for the sake of simplicity, generally referred to as the “15th parallel”).
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73. According to Honduras, there already exists in the Caribbean Sea a traditionally recognized boundary between the maritime spaces of Hon-duras and Nicaragua “which has its origins in the principle of uti possidetis juris and which is firmly rooted in the practice of both Honduras and Nicaragua and confirmed by the practice of third States”. Honduras agrees that the Court should “determine the location of a single maritime boundary” and asks the Court to trace it following the “traditional maritime boundary” along the 15th parallel “until the jurisdiction of a third State is reached”. During the oral proceedings Honduras also asked the Court to adjudge that
“[t]he islands Bobel Cay, South Cay, Savanna Cay and Port Royal Cay, together with all other islands, cays, rocks, banks and reefs claimed by Nicaragua which lie north of the 15th parallel are under the sovereignty of the Republic of Honduras” (for the maritime boundary line claimed respectively by each Party, see below, p. 686, sketch-map No. 2).
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4.2. Sovereignty over the Islands in the Area in Dispute
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74. Nicaragua claims sovereignty over the islands and cays in the dis-puted area of the Caribbean Sea to the north of the 15th parallel, including Bobel Cay, Savanna Cay, Port Royal Cay and South Cay.

75. Nicaragua states that none of these islands, cays and rocks were terra nullius in 1821, when Nicaragua and Honduras gained independence from the Kingdom of Spain. However, according to Nicaragua, upon independence these features were not assigned to either of the Republics. Nicaragua adds that despite extensive research into the matter it is impossible to establish the uti possidetis juris situation of 1821 in respect of the cays in dispute. Nicaragua therefore concludes that recourse must be had to “other titles” and in particular contends that, in view of the geographical proximity of the islands to the Nicaraguan coastline, it holds original title over them under the principle of adjacency.
76. Nicaragua notes that as a matter of law effectivites cannot be substituted for original title. Therefore, in Nicaragua’s view, the meagre effectivites invoked by Honduras cannot displace Nicaraguan title over the islands. Furthermore, Nicaragua argues that most of the effectivites alleged by Honduras occurred after the critical date (a concept that the Court will expand upon further at paragraph 117 below), which Nicaragua gives as 1977, when Honduras accepted Nicaragua’s offer to hold negotiations on the maritime delimitation between the two countries in the Caribbean Sea. With regard to its own effectivites, Nicaragua argues that the exercise of its own sovereignty “over the maritime area in dispute including the cays, is attested to by the question of the turtle fisheries negotiations and agreements with Great Britain that began in the nineteenth century and were still ongoing in the 1960s”.
77. Finally Nicaragua notes that its exercise of sovereignty and jurisdiction in the maritime area in question has been recognized by third States, and that the cartographic evidence, while not providing conclusive evidence, also supports its claim to sovereignty.
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78. Honduras claims sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay, in addition to claiming title over other smaller islands and cays lying in the same area of the Caribbean Sea.
79. Honduras’s primary argument is that it has an original title over the disputed islands derived from the doctrine of uti possidetis juris. Honduras concurs with Nicaragua in the belief that none of the islands and cays in dispute were terra nullius upon independence in 1821. However, according to Honduras at that date, Cape Gracias a Dios, lying along the 15th parallel, constituted the land and maritime boundary between the provinces of Honduras and Nicaragua. Thus on the basis of uti possidetis juris the islands formerly belonging to Spain north of the 15th parallel became the islands of the newly independent Republic of Honduras.
80. Honduras contends that its original title to the islands north of the 15th parallel is confirmed by many effectivites. In this regard Honduras, in relation to the islands, refers to the application of Honduran public and administrative legislation and laws as well as of its criminal and civil laws, the regulation of fisheries activities and immigration, the regulation by Honduras of exploration and exploitation of oil and gas, the carrying out of military and naval patrols, search and rescue operations and the participation by Honduras in public works and scientific surveys.
81. In the event that the Court finds that no State can make out a claim based on uti possidetis juris, Honduras argues that through its effectivites it has made out a superior claim compared to Nicaragua. In this regard Honduras contests Nicaragua’s claim that the most of these effectivites occurred after the critical date as claimed by Nicaragua. Honduras does not accept Nicaragua’s alleged critical date of 1977, but notes that in any event many of the acts of sovereignty over the disputed islands which it describes occurred before that date. Honduras argues that the critical date cannot be earlier than 21 March 2001, the date when Nicaragua filed its Memorial asserting for the first time that Nicaragua had title to the islands.
82. Finally, Honduras adds that a number of third States have recognized Honduran sovereignty over the islands, and that the cartographic evidence, while not of itself dispositive, supports Honduras’s claim to sovereignty.
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4.3. Maritime Delimitation beyond the Territorial Sea 4.3.1. Nicaragua’s line: bisector method
83. In its legal argument, Nicaragua begins with the delimitation of maritime areas beyond the territorial sea. In the circumstances of the case, Nicaragua proposes a method of delimitation consisting of “the bisector of the angle produced by constructing lines based upon the respective coastal frontages and producing extensions of these lines”. Such a bisector is calculated from the general direction of the Nicaraguan coast and the general direction of the Honduran coast. These coastal fronts generate a bisector which runs from the mouth of the River Coco as a line of constant bearing (azimuth 52° 45′ 21″) until intersecting with the boundary of a third State in the vicinity of Rosalind Bank.
84. Nicaragua also states that “[b]ecause 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” for the maritime delimitation between Nicaragua and Honduras. In particular Nicaragua refers to the fact that “the exact location where the land boundary ends is like the points of protruding needles” resulting in
a “pronounced turn in the direction of the coast precisely on the boundary line”. Nicaragua argues that as a result of this geographical feature
“the only two points that would dominate any delimitation based on median line or equidistance calculations are the two margins of the River. This remains the same even at a distance of 200 nautical miles
if only the mainland coast is used.”
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85. Honduras asserts that Nicaragua’s proposed bisector method “is based on a flawed assessment of coastal fronts and delimitation methods”. The Atlantic coast of Nicaragua is relatively linear, runs “slightly west of south” all the way from Cape Gracias a Dios to Costa Rica and faces overall “slightly south of east”. Thus there is no justification based on the configuration of Nicaragua’s coast for the Nicaraguan bisector line running north-east. According to Honduras, Nicaragua’s angle is supposed to have been constructed by taking account of the coastal directions of the Parties. However as the two coasts are treated by Nicaragua as straight lines the angle created bears no relationship to the actual coasts.
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4.3.2. Honduras’s line: “traditional boundary” along the parallel 14°59.8′ North latitude (“the 15th parallel”)
86. Honduras asks the Court to confirm what it claims is a traditional maritime boundary running along the 15th parallel between Honduras and Nicaragua in the Caribbean Sea and to continue that existing line until the jurisdiction of a third State is reached. According to Honduras this traditional line has its historical basis in the principle of uti possidetis juris. Honduras contends that upon independence in 1821 there was a maritime jurisdiction division aligned along the 15th parallel out to at least 6 nautical miles from Cape Gracias a Dios.
87. Honduras further claims that the Parties’ conduct since independ-ence demonstrates the existence of a tacit agreement that the 15th parallel has long been treated as the line dividing their maritime spaces. Honduras states that conduct in relation to the disputed islands and the maritime boundary are closely connected. Many of the acts expressing sovereignty over the islands also constitute conduct recognizing the 15th parallel as the maritime boundary. In this regard Honduras places particular emphasis on oil concessions, fisheries licences and naval patrols which, it contends, provide ample proof of the acceptance by the Parties of the traditional boundary line offshore.
88. Honduras states that it was only in 1979, with the change in gov-ernment in Nicaragua, that the “position and conduct of Nicaragua in relation to the establishment of the 15th parallel as the maritime boundary between the two States changed radically”. Thus the critical date for the start of the controversy, in terms of the dispute between the Parties over the delimitation of their respective maritime spaces, cannot be before 1979. Honduras furthermore notes that in any event many of its examples of conduct occurred prior to that date.
89. Honduras also refers to the practice of the Parties as reflected in their diplomatic exchanges, their legislation and their cartography to demonstrate the mutually acknowledged existence of a traditional maritime boundary along the 15th parallel. In addition Honduras claims that the 15th parallel has been recognized as such a boundary by third States and international organizations.
90. While contending that the 15th parallel is a traditional line based on uti possidetis juris and confirmed by the subsequent conduct of the Parties showing their common acceptance of this line, Honduras also seeks to show that its line is in any event equitable in character. It compares it with the equidistance line of delimitation “constructed using standard methods”, which, according to Honduras runs to the south of the 15th parallel. Honduras claims that Nicaragua would gain more maritime space with the “traditional line” than it would achieve by strict application of the equidistance line. Honduras further argues that the Honduran line does not cut-off the projection of the coastal front of Nicaragua and respects the principle of non-encroachment.
91. Were its contentions as to the 15th parallel not to be accepted by the Court, Honduras asks alternatively that the Court trace an adjusted equidistance line, until the jurisdiction of a third State is reached. Honduras maintains that the construction of a provisional equidistance line is possible and that there is therefore no reason to depart from “the practice almost universally adopted in the modern jurisprudence, both of this Court and of other tribunals, that is to begin with a provisional equidis- tance line”.
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92. Nicaragua contends that it has consistently held that the maritime spaces between the two States in the Caribbean Sea have not been delim-ited.
93. Nicaragua asserts that there is “no uti possidetis juris of 1821 that attributes or delimits maritime areas” between the two States and that
there are no Honduran acts of sovereignty or effectivites to support the contention that a traditional line exists along the 15th parallel. In particular, Nicaragua maintains that
“the concept of uti possidetis that was used to determine the bounda-ries of the administrative divisions of the colonial power that were considered to be frozen in place at the moment of independence had nothing to do with maritime matters”.
94. Nicaragua further states that there “is no line dividing the maritime areas of Nicaragua and Honduras based on a tacit agreement or any form of acquiescence or recognition whatever resulting from long-established and consistent practice”.
95. With regard to the maritime spaces Nicaragua focuses on three ele-ments representing alleged effectivites by Honduras — oil exploration concessions, fisheries activities and naval patrols. First, Nicaragua argues that the limits of oil concessions are not relevant to fixing a boundary between two States. Moreover,
“none of the Honduran concessions states that its southern limit coincides with the maritime boundary with Nicaragua. Similarly, none of the Nicaraguan concessions defining a northern limit specifies that the limit coincides with the maritime boundary with Honduras.”
Second, according to Nicaragua neither the witness statements nor fishing licences produced by Honduras nor the FAO fisheries reports can be considered as a confirmation of the existence of a “traditional boundary” or as evidence of Nicaragua’s consent to such a boundary. Third, with regard to the naval patrols, Nicaragua notes that as a matter of law, naval or air patrols on the high seas cannot be equated to an effectivite. Nicaragua notes furthermore that many of these supposed effectivites took place after the critical date, which it gives as 1977.
96. As to the diplomatic exchanges between the Parties, Nicaragua maintains that “the Honduran claim that the 15th Parallel is the boundary of maritime areas with Nicaragua was not made formally until 1982” and was immediately rejected by Nicaragua. Nicaragua argues that Honduras has not presented any evidence that in the period prior to 1977 the Parties acquiesced to the existence of a traditional maritime boundary or that there were Honduran claims to the areas in question. On the contrary, there have been countless occasions in the context of diplomatic exchanges when Nicaragua has reaffirmed that there is no maritime boundary in the Caribbean Sea that is based on tradition or on any tacit acceptance by Nicaragua.
97. For the cartographic evidence, Nicaragua asserts that none of the maps published in Nicaragua and reproduced by Honduras indicate that a maritime boundary runs along the 15th parallel. With regard to the claim that Nicaragua failed to protest against certain official maps produced by Honduras, Nicaragua comments that the absence of protest in regard to these maps is irrelevant due to the fact that the maps have no evidentiary value.
98. Nicaragua contends that, given the significant change in the direction of the coast, the boundary line which follows a parallel of latitude “is essentially inequitable” and “transgresses the primary equitable principle prohibiting the cutting-off of a state, in this case Nicaragua, from the continental shelf or exclusive economic zone lying in front of its coasts”. Moreover, there is “a glaring disproportion between the maritime spaces that Honduras attributes to herself and those she considers to be Nicaraguan, bounded by the parallel of 15° N”. Nicaragua concludes that the overall result is “grossly inequitable in terms of the law of maritime delimitation”.
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4.4. Starting-point of the Maritime Boundary
99. Nicaragua recalls that the terminus of the land boundary between Nicaragua and Honduras was established by the 1906 Arbitral Award at the mouth of the principal arm of the River Coco (see paragraph 38 above). In 1962 the Mixed Boundary Commission determined that the starting-point of the land boundary at the mouth of the River Coco was situated at 14° 59.8′ North latitude and 83° 08.9′ West longitude (see paragraph 47 above). Nicaragua further states that since 1962 the mouth of the River Coco has moved more than 1 mile north and east due to the accretion of sediments and the trend of marine streams. As a result, the point plotted by the Commission is today located approximately 1 mile landwards from the actual mouth of the River Coco. According to Nica-ragua the instability and fluctuations of the river mouth will continue in the “predictable future” and will lead to changes in the co-ordinates of the terminus of the land boundary. It thus proposes that the starting- point of the maritime boundary be set “at a prudent distance”, namely 3 nautical miles out at sea from the actual mouth of the River Coco on the bisector line.
100. Nicaragua initially suggested that the Parties would have to nego-tiate “a line representing the boundary between the point of departure of the boundary at the mouth of the River Coco and the point of departure from which the Court will have determined the [maritime] boundary line”. While leaving that proposal open, Nicaragua, in its final submissions, asked the Court to confirm that: “The starting-point of the delimitation is the thalweg of the main mouth of the River Coco such as it may
be at any given moment as determined by the Award of the King of Spain of 1906.”
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101. Honduras agrees that the terminal point of the land boundary between Honduras and Nicaragua fixed by the Mixed Commission in 1962, due to “the gradual movement eastwards of the actual mouth of the River Coco”, “now lies well inside what would now be described as the ‘mouth’ in geographical terms”. The instability of the mouth of the River Coco, “identified as the endpoint of the boundary” by the 1906 Award, according to Honduras, makes it undesirable to ask the Court “to determine either the location of the mouth of the river, or even the starting-point of the line immediately east of that point”. While initially suggesting that the Court should be requested to “begin the line only at the outer limit of territorial waters”, Honduras then, “seeking to minimise the point of difference with Nicaragua”, accepted a starting- point of the boundary “at 3 miles from the terminal point adopted in 1962, rather than 12 miles from the coast, as proposed in the Counter- Memorial”. However Honduras argues that the seaward fixed point should be measured from the point established by the 1962 Mixed Commission and located on the 15th parallel. The seaward fixed point should accordingly be established precisely 3 nautical miles due east from the 1962 point. Honduras also states that the Parties should negotiate an agreement covering the distance from the 1962 terminus point up to the 3-mile point seaward of the mouth of the River Coco.
4.5. Delimitation of the Territorial Sea
102. Nicaragua states that the delimitation of the territorial sea between States with adjacent coasts must be effected on the basis of the principles set out in Article 15 of UNCLOS. In the view of Nicaragua, in the present case however it is technically impossible to draw an equidis- tance line because it would have to be entirely drawn on the basis of the two outermost points of the mouth of the river, which are extremely unstable and continuously change position. Thus, according to Nicaragua, the bisector line should also be used for the delimitation of the territorial sea. Moreover, the bisector line in the territorial sea does not vary significantly from the “mean” equidistance line. Lastly, the segment of the line between the present terminus of the land boundary and the offshore point fixed 3 miles from the mouth of the River Coco, “allows for a harmonious, flexible and adjustable connection between the ‘single line of delimitation’ and [the endpoint of the land boundary]”.
103. With regard to the boundary of the territorial sea, Honduras agrees with Nicaragua that there are “special circumstances” which, under Article 15 of UNCLOS “require a delimitation by a line other than a strict median line”. However, according to Honduras, while the configuration of the continental landmass may be one such “special circumstance”, of far greater significance “is the established practice of the Parties in treating the 15th parallel as their boundary from the mouth of the River Coco (14° 59.8′)”. Honduras also identifies as a factor of “the greatest significance … the gradual movement eastwards of the actual mouth of the River Coco”. Honduras therefore suggests that from the fixed seaward starting-point (3 miles due east from the point fixed by the Mixed Commission in 1962) the maritime boundary in the territorial sea (just as for the areas of the exclusive economic zone and continental shelf) should follow in an eastward direction the 15th parallel.
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5. Admissibility of the New Claim relating to Sovereignty over the Islands in the Area in Dispute
104. The Court recalls that in its Application, Nicaragua requested the Court to determine
“the course of the single maritime boundary between the areas of territorial sea, continental shelf and exclusive economic zone apper-taining respectively to Nicaragua and Honduras, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary”.
The Government of Nicaragua further reserved its “right to supplement or to amend” the Application.
105. In its Memorial, Nicaragua, while not putting forward a claim of sovereignty as a formal submission,
“reserve[d] [its] sovereign rights appurtenant to all 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 Cay, Arrecife Alargado, Bobel Cay, Port Royal Cay, Porpoise Cay, Savanna Cay, Savanna Reefs, Cayo Media Luna, Burn Cay, Logwood Cay, Cock Rock, Arrecifes de la Media Luna, and Cayo Serranilla”.
106. During the first round of the oral proceedings the Agent of Nica-ragua declared that
“so that there is no possible misunderstanding on this point — that
is, whether the issue of sovereignty over these features [i.e. the islands in the disputed area] is in question — then as of this moment Nicaragua wishes to anticipate that in its final submissions at the end of these oral pleadings it will specifically request a decision on the question of sovereignty over these features”.
107. In its final submissions at the end of the oral proceedings, Nica-ragua requested the Court, without prejudice to the line of the single maritime boundary “as described in the pleadings”, “to decide the question of sovereignty over the islands and cays within the area in dispute”.
108. The Court notes that
“[t]here is no doubt that it is for the Applicant, in its Application, to present to the Court the dispute with which it wishes to seise the Court and to set out the claims which it is submitting to it” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 447, para. 29).
Article 40, paragraph 1, of the Statute of the Court requires moreover that the “subject of the dispute” be indicated in the Application; and Article 38, paragraph 2, of the Rules of Court requires “the precise nature of the claim” to be specified in the Application. In a number of instances in the past the Court has had occasion to refer to these provisions. It has characterized them as “essential from the point of view of legal security and the good administration of justice” and, on this basis, the Court held inadmissible certain new claims, formulated during the course of proceedings, which, if they had been entertained, would have transformed the subject of the dispute originally brought before it under the terms of the Application (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 69; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 447, para. 29; see also Prince von Pless Administration, Order of 4 February 1933, P.C.I.J., Series A/B, No. 52, p. 14, and Societe Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173).
109. The Court observes that, from a formal point of view, the claim relating to sovereignty over the islands in the maritime area in dispute, as presented in the final submissions of Nicaragua, is a new claim in relation to the claims presented in the Application and in the written pleadings.
110. However, the mere fact that a claim is new is not in itself decisive for the issue of admissibility. In order to determine whether a new claim introduced during the course of the proceedings is admissible the Court will need to consider whether,
“although formally a new claim, the claim in question can be considered as included in the original claim in substance” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 265-266, para. 65).
For this purpose, to find that the new claim, as a matter of substance, has been included in the original claim, it is not sufficient that there should be links between them of a general nature. Moreover,
“[a]n additional claim must have been implicit in the application (Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 36) or must arise ‘directly out of the question which is the subject- matter of that Application’ (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, I.C.J. Reports 1974, p. 203, para. 72)” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 266, para. 67).
111. The Court will now consider whether Nicaragua’s new claim relating to sovereignty over the islands in the area in dispute is admissible in light of the above criteria.
112. The maritime area in the Caribbean Sea to be delimited comprises a number of islands which may generate territorial sea, exclusive economic zone and continental shelf and a number of rocks which may generate territorial sea. Both Parties have agreed that none of the land features in the maritime area in dispute can be regarded as terra nullius, but each has asserted its own sovereignty over them. According to Nicaragua, by using a bisector as a method of delimitation, sovereignty over these features could be attributed to either Party depending on the position of the feature involved with respect to the bisector line.
113. On a number of occasions, the Court has emphasized that
“the land dominates the sea” (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Neth-erlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 36, para. 86; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 97, para. 185).
Accordingly, it is
“the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State. In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law, islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land terri-tory.” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 97, para. 185.)
114. To draw a single maritime boundary line in an area of the Car-ibbean Sea where a number of islands and rocks are located the Court would have to consider what influence these maritime features might have on the course of that line. To plot that line the Court would first have to determine which State has sovereignty over the islands and rocks in the disputed area. The Court is bound to do so whether or not a formal claim has been made in this respect. Thus the claim relating to sovereignty is implicit in and arises directly out of the question which is the subject-matter of Nicaragua’s Application, namely the delimitation of the disputed areas of the territorial sea, continental shelf and exclusive economic zone.
115. In the light of the foregoing, the Court concludes that the Nica- raguan claim relating to sovereignty over the islands in the maritime area in dispute is admissible as it is inherent in the original claim relating to the maritime delimitation between Nicaragua and Honduras in the Caribbean Sea.
116. In addition, the Court notes that the Respondent has contested neither the jurisdiction of the Court to entertain the Nicaraguan new claim regarding the islands, nor its admissibility. Moreover, Honduras, for its part, observed that the new Nicaraguan claim made “the nature of the task facing the Court” clearer so that the Court “is asked to decide both on title to the islands and on the maritime delimitation”. Honduras further added that as the Court was faced with a dispute over land and maritime spaces, it “must resolve the question of sovereignty over the land before it turns to the maritime boundary” (emphasis in the original). In its final submissions Honduras asked the Court to adjudge and declare that:
“The islands Bobel Cay, South Cay, Savanna Cay and Port Royal Cay, together with all other islands, cays, rocks, banks and reefs claimed by Nicaragua which lie north of the 15th parallel are under the sovereignty of the Republic of Honduras.”
It is for the Court therefore to rule on the claims of the two Parties with respect to the islands in dispute.
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6. The Critical Date
117. In the context of a maritime delimitation dispute or of a dispute related to sovereignty over land, the significance of a critical date lies in distinguishing between those acts performed a titre de souverain which are in principle relevant for the purpose of assessing and validating effectivites, and those acts occurring after such critical date, which are in general meaningless for that purpose, having been carried out by a State which, already having claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing those claims. Thus a critical date will be the dividing line after which the Parties’ acts become irrelevant for the purposes of assessing the value of effectivites. As the Court explained in the Indonesia/Malaysia case,
“it cannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 682, para. 135).
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118. Honduras contends that there are two disputes, albeit related: one as to whether Nicaragua or Honduras has title to the disputed islands; and the other as to whether the 15th parallel represents the current maritime frontier between the Parties. Nicaragua perceives it as a single dispute.
119. Honduras observes that in respect of the dispute concerning sov-ereignty over the maritime features in the disputed area there “may be more than one critical date”. Thus, “[t]o the extent that the issue of title turns on the application of uti possidetis”, the critical date would be 1821 — the date of independence of Honduras and Nicaragua from Spain. For the purposes of post-colonial effectivites, Honduras argues that the critical date “is obviously much later” and cannot be “earlier than the date of the filing of the Memorial — 21 March 2001 — since this was the first time that Nicaragua asserted that it had title to the islands”.
120. With regard to the dispute over the maritime boundary, Honduras maintains that 1979, when the Sandinista Government came to power, constitutes the critical date, as up to that date “Nicaragua never showed the slightest interest in the cays and islands north of the 15th parallel”. According to Honduras, once in power in 1979 the new Government launched “a campaign of prolonged harassment against Honduran fishing vessels north of the 15th parallel”.
121. For Nicaragua, the critical date is 1977, when the Parties initiated negotiations on maritime delimitation, following an exchange of letters by the two Governments. Nicaragua asserts that the dispute over the maritime boundary, by implication, encompasses the dispute over the islands within the relevant area and therefore the critical date for both disputes coincides.
122. Honduras dismisses Nicaragua’s alleged critical date of 1977 for the purposes of the dispute over the islands, since the diplomatic corre-
spondence exchanged by the two countries makes no mention of those maritime features. Honduras further argues that the 1977 exchange of let-ters, and Honduras’s acceptance of the invitation “to initiate conversations leading to a definitive marine and sub-marine delimitation between Nicaragua and Honduras in the Atlantic and Caribbean Sea zones” did not mark the “crystallization of any dispute as no conflicting claims were raised at that time”.
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123. The Court considers that in cases where there exist two interrelated disputes, as in the present case, there is not necessarily a single critical date and that date may be different in the two disputes. For these reasons, the Court finds it necessary to distinguish two different critical dates which are to be applied to two different circumstances. One critical date concerns the attribution of sovereignty over the islands to one of the two contending States. The other critical date is related to the issue of delimitation of the disputed maritime area.
124. Rule by the Spanish Crown ended in 1821. An issue before the Court is any applicability of the uti possidetis juris principle to title to the islands and also to the establishment of a maritime boundary. This issue will be addressed, by reference to the specific circumstances of the present case, in sections 7.2 and 8.1.1. In the absence of any title based on the uti possidetis juris principle, the Court will seek to establish an alternative title to the islands arising out of effectivites in the post-colonial era. It will also seek to ascertain whether there existed a tacit agreement as to the maritime boundary during the same period. For these purposes, it will be necessary to determine critical dates by reference to the moment at which the two disputes crystallized.
125. It would be unfounded to set 1906 as the critical date on the basis that it was that year that the King of Spain delivered his Arbitral Award. It must be remembered that the Award dealt only with the land boundary between Nicaragua and Honduras. In contrast, the Court is called upon in the present case to delimit the maritime boundary between those two countries and to determine the sovereignty over the islands in dispute.
126. The Court reiterates that maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as “the land dominates the sea” (see paragraph 113 above). Following this approach, sovereignty over the islands needs to be determined prior to and independently from maritime delimitation.
127. As regards title to the islands in question, at the time of filing its Application, Nicaragua did not make to the Court any claim of title to the islands north of the 15th parallel. It was only in its Memorial of 21 March 2001 that Nicaragua for the first time made reference to the islands, without providing any basis for a legal claim, stating only that, “[i]n the absence of the adoption of a bisector delimitation by the Court, Nicaragua reserves the sovereign rights appurtenant to all the islets and rocks claimed by Nicaragua in the disputed area”. Yet in the submissions contained in the Nicaraguan Memorial, there is no claim to the islands in dispute. The same is true in the case of the submissions in the Nicaraguan Reply. It is only in its final submissions, at the end of the oral proceedings, that Nicaragua asks the Court “to decide the question of sovereignty over the islands and cays within the area in dispute”.
128. The question of the admissibility of this late submission is dealt with above at paragraphs 104 to 116.
129. With regard to the dispute over the islands, the Court considers 2001 as the critical date, since it was only in its Memorial filed in 2001 that Nicaragua expressly reserved “the sovereign rights appurtenant to all the islets and rocks claimed by Nicaragua in the disputed area”.
130. With regard to the dispute concerning the maritime delimitation, the Court finds that the exchange of letters of 1977 did not mark the point at which the dispute crystallized, according to the well-established definition of a dispute set down by the Permanent Court of International Justice, namely that “[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (Mav- rommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). No claims or counter-claims were articulated by the two Parties at the time and the suggested process of negotiations came to nought.
131. In determining the critical date for the purposes of the dispute over the delimitation line, the Court notes that on 17 March 1982, a “Honduran vessel . . . was fishing … in waters under Honduran jurisdiction, when it was captured by a Nicaraguan patrol boat after cannon fire, and taken … to a Nicaraguan port”, according to an official letter from Honduras. On 21 March 1982, two Nicaraguan coastguard vessels captured four Honduran fishing vessels in the area of Bobel and Media Luna Cays. On 23 March 1982, Honduras sent a formal protest, stating that the Nicaraguan patrols had “penetrated as far as Bobel and Media Luna Cays, 16 miles North of parallel 15”, which “has been traditionally recognised by both countries to be the dividing line in the Atlantic”. On 14 April 1982, Nicaragua denied the existence of such a traditional line. Honduras for its part emphasized that while indeed the frontier had not been “legally delimited”, at the same time “it [could not] be denied that there exists, or at least there used to exist, a traditionally accepted line, which is that which corresponds to the parallel which crosses Cape Gracias a Dios”. It added that the existence of this traditionally accepted line was the only explanation for long undisturbed relations on the border and it was only in recent times that border incidents had begun to occur. In the view of the Court, it is from the time of these two
incidents that a dispute as to the maritime delimitation could be said to exist.
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7. Sovereignty over the Islands
132. The Court will now address the question of sovereignty over maritime features in the disputed area of the Caribbean Sea.
7.1. The Maritime Features in the Area in Dispute
133. It is commonly recognized that when the Central American States became independent in 1821, none of the islands adjacent to these States was terra nullius; the new States asserted sovereign titles over all the ter-ritories that had been under Spanish dominion. Their title was based on succession to all former Spanish colonial possessions. As explained in the decision rendered on 24 March 1922 by the Swiss Federal Council, which acted as arbitrator in the Frontier Dispute between Colombia and Ven-ezuela case
“while there might exist many regions which had never been occupied by the Spaniards and many unexplored . . ., these regions were reputed to belong in law to whichever of the Republics succeeded to the Spanish Province to which these territories were attached by virtue of the old Royal Ordinances of the Spanish mother country. These territories, although not occupied in fact, were by common consent deemed as occupied in law from the first hour by the newly created Republic . . .” (United Nations, Reports of International Arbitral Awards (RIAA), Vol. I, p. 228.) [Translation by the Registry.] 134. But if there was to be no territory without a master, within the vast spatial expanses of the Spanish Crown not every single piece of land had a definitive identification or had been attached to a specific administrative colonial authority. In the words of an Arbitral Award rendered on 23 January 1933 by the Special Boundary Tribunal constituted by the Treaty of Arbitration between Guatemala and Honduras, this was due to “the lack of trustworthy information during colonial times” because “much of this territory was unexplored”. In consequence,
“not only had boundaries of jurisdiction not been fixed with precision by the Crown, but there were great areas in which there had been no effort to assert any semblance of administrative authority” (RIAA, Vol. II, p. 1325).
135. Given the dual nature of the present case — a maritime delimita-tion and a determination of sovereignty over islands situated in the mari-time area in dispute — and taking into account the principle that the “land dominates the sea” (see paragraph 113 above), the legal nature of the land features in the disputed area must be assessed at the outset.
136. There are four relevant cays involved, Bobel Cay, Savanna Cay, Port Royal Cay and South Cay. All of these cays are located outside the territorial sea of the mainland of both Nicaragua and Honduras. They lie to the south of the bisector line advanced by the Applicant as the delimitation line, and to the north of the 15th parallel claimed by the Respondent as the delimitation line. In addition to these four main cays, there are a number of smaller islets, cays and reefs in the same area, of which the physical status (such as whether they are completely submerged below sea level, either permanently or at high tide), and consequently their legal status (for the purposes of the application of Articles 6, 13 or 121 of UNCLOS) are not clear.
137. The Court notes that the Parties do not dispute the fact that Bobel Cay, Savanna Cay, Port Royal Cay and South Cay remain above water at high tide. They thus fall within the definition and regime of islands under Article 121 of UNCLOS (to which Nicaragua and Honduras are both parties). Therefore these four features will hereinafter be referred to as islands.
The Court further notes that the Parties do not claim for these islands any maritime areas beyond the territorial sea (the question of the breadth of territorial sea around these islands will be dealt with below, see paragraph 302).
138. With the exception of these four islands, there seems to be an insufficiency in the information which the Court would require in order to identify a number of the other maritime features in the disputed area. In this regard, little assistance was provided in the written and oral procedures to define with the necessary precision the other “features” in respect of which the Parties are asking the Court to decide the question of territorial sovereignty.
139. In its final submissions, although Nicaragua requests the Court to decide the question of sovereignty over the islands and cays within the area in dispute, it does not there identify these features by name. Instead, it resorts to the use of a description in general terms, referring to “the islands and cays within the area in dispute”. The Applicant does not list the islands and cays nor does it specify the legal characterization of these features. Although at moments in the past Nicaragua has laid claim to maritime areas up to the 17th parallel, in the context of the pleadings in the present case, the “area in dispute” should be understood to refer to the maritime area lying between the 15th parallel and the bisector line which Nicaragua claims as the maritime boundary (see paragraphs 19 and 83 above).
140. Honduras is more specific in its final submissions but only in that
it explicitly names the four features which it has called islands from the very beginning and over which it claims sovereignty: Bobel Cay, Savanna Cay, Port Royal Cay and South Cay. But then it uses a diffuse and indeterminate description: “together with all other islands, cays, rocks, banks and reefs claimed by Nicaragua which lie north of the 15th parallel”. The problem with such a request is that, as stated above, Nicaragua does not specify in its final submissions “the islands and cays within the area in dispute” and, additionally, does not claim any “rocks, banks and reefs”.
141. In this connection, the Court notes that features which are not permanently above water, and which lie outside of a State’s territorial waters, should be distinguished from islands. As to the question of appropriation, in the case concerning Maritime Delimitation and Terri-torial Questions between Qatar and Bahrain (Qatar v. Bahrain), the Court observed that it was not
“aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 102, para. 205).
However, it added that:
“The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands. It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition; the difference in effects which the law of the sea attributes to islands and low- tide elevations is considerable. It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory.” (Ibid., para. 206.)
The Court also recalled “the rule that a low-tide elevation which is situated beyond the limits of the territorial sea does not have a territorial sea of its own” (ibid., para. 207).
142. Additionally, in the case of those features that do not qualify as islands according to UNCLOS because they are not permanently above water at high tide, there was little further to be found in the pleadings addressing this matter.
143. During the proceedings, two other cays were mentioned: Logwood Cay (also called Palo de Campeche) and Media Luna Cay. In response to a question put by Judge ad hoc Gaja to the Parties in the course of the oral proceedings as to whether these cays would qualify as islands within the meaning of Article 121, paragraph 1, of UNCLOS, the Parties have stated that Media Luna Cay is now submerged and thus that it is no longer an island. Uncertainty prevails in the case of Logwood Cay’s current condition: according to Honduras it remains above water (though only slightly) at high tide; according to Nicaragua, it is completely submerged at high tide.
144. Given all these circumstances, the Court is not in a position to make a determinative finding on the maritime features in the area in dispute other than the four islands referred to in paragraph 137. The Court thus regards it as appropriate to pronounce only upon the question of sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay.
145. A claim was also made during the oral proceedings by each Party to an island in an entirely different location, namely, the island in the mouth of the River Coco. For the last century the unstable nature of the river mouth has meant that larger islands are liable to join their nearer bank and the future of smaller islands is uncertain. Because of the changing conditions of the area, the Court makes no finding as to sovereign title over islands in the mouth of the River Coco.
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7.2. The Uti Possidetis Juris Principle and Sovereignty over the Islands in Dispute
146. The Court observes that the principle of uti possidetis juris has been relied on by Honduras as the basis of sovereignty over the islands in dispute. This is contested by Nicaragua which asserts that sovereignty over the islands cannot be attributed to one or the other Party on the basis of this principle.
147. Honduras argues that the uti possidetis juris principle embedded in the Gamez-Bonilla Treaty and confirmed by the 1906 Award of the King of Spain and by the 1960 Judgment of the Court is applicable as between Honduras and Nicaragua, not only to their mainland territory, but also to the maritime area off the coast of the two countries which is now the subject of dispute for delimitation, together with the islands in the disputed area. Honduras adds that the line established as the line of maritime delimitation on the basis of the uti possidetis juris principle is the line that begins along the 15th parallel.
148. Honduras argues that because of the Royal Decree of 17 December 1760 which established that Spanish territorial waters extended for 6 nautical miles, Nicaragua and Honduras succeeded in 1821 not only to their mainland territory but also to islands and a maritime area extending 6 miles [RH, para. 3.16]. With respect to sovereignty over the islands in dispute by virtue of the principle of uti possidetis juris, Honduras relies in
the first place on the Royal Warrant of 23 August 1745 which established two military jurisdictions within the Captaincy-General of Guatemala, one running from the Yucatan Peninsula to Cape Gracias a Dios and the other from Cape Gracias a Dios down to but not including the Cha- gres River. The northern jurisdiction appertained to Honduras and the southern to Nicaragua. Honduras further refers to the Royal Decree of 20 November 1803, according to which “the Islands of San Andres and the part of the Mosquito Coast from Cape Gracias a Dios inclusive to the Chagres River, shall be separated from the Captaincy-General of Guatemala and become dependent on the Vice Royalty of Santa Fe”. Honduras contends that this Decree shows that the islands and waters north of Cape Gracias a Dios corresponded to the military and maritime jurisdiction of the Captaincy-General of Guatemala while the islands and waters south of the Cape corresponded to the Vice-Royalty of Santa Fe. Finally, Honduras maintains that before independence, the Government of Honduras exercised jurisdiction north of Cape Gracias a Dios, while the General Command of Nicaragua exercised jurisdiction south of the Cape.
149. Honduras claims that the 1850 Treaty between Spain and Nica-ragua and the 1866 Treaty between Spain and Honduras respectively rec-ognized the sovereignty of Nicaragua and Honduras over their mainland territories and adjacent islands that lie along their coasts. Honduras submits that the islands in dispute were closer to Honduras’s coast than to any other part of the former Spanish empire. Honduras also notes that the existence of these islands was certainly known at the time of the independence of the Central American States, as maps dating to that period show the islands in dispute, such as, for example, an 1801 chart comprising the coasts of Yucatan, Mosquitos and Honduras.
the time of independence this principle of proximity operated not to the benefit of Honduras or Nicaragua, but rather to the benefit of the Cap-taincy-General of Guatemala which exercised direct jurisdiction over the settlements on the Mosquito Coast. In any event, Nicaragua claims that the islands are more proximate to Nicaragua’s Edinburgh Cay than to any Honduran territory.
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The Court has recognized that “the principle of uti possidetis has kept its place among the most important legal principles” regarding territorial title and boundary delimitation at the moment of decolonization (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 567, para. 26). In that case, the Chamber of the Court found that it
“cannot disregard the principle of uti possidetis juris, the application of which gives rise to this respect of intangibility of frontiers… It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.” (Ibid., p. 565, para. 20.)
In that same Judgment, the Chamber of the Court examined different aspects of the uti possidetis juris principle. One such aspect
“is found in the pre-eminence accorded to legal title over effective possession as a basis of sovereignty. Its purpose, at the time of the achievement of independence by the former Spanish colonies of America, was to scotch any designs which non-American colonizing powers might have on regions which had been assigned by the former metropolitan State to one division or another, but which were still uninhabited or unexplored.” (Ibid., p. 566, para. 23.)
According to the Judgment of the Chamber of the Court:
“The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independ-ence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term.” (Ibid.)
It is beyond doubt that the uti possidetis juris principle is applicable to the question of territorial delimitation between Nicaragua and Honduras, both former Spanish colonial provinces. During the nine-
teenth century, negotiations aimed at determining the territorial boundary between Nicaragua and Honduras culminated in the conclusion of the Gamez-Bonilla Treaty of 7 October 1894, in which both States agreed in Article II, paragraph 3, that “each Republic [was] owner of the territory which at the date of independence constituted, respectively, the provinces of Honduras and Nicaragua”. The terms of the Award of the King of Spain of 1906, based specifically on the principle of uti possidetis juris as established in Article II, paragraph 3, of the Gamez-Bonilla Treaty, defined the territorial boundary between the two countries with regard to the disputed portions of land, i.e. from Portillo de Teotecacinte to the Atlantic Coast. The validity and binding force of the 1906 Award have been confirmed by this Court in its 1960 Judgment and both Parties to the present dispute accept the Award as legally binding.
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The Court now turns from the question of territorial title settled in 1906 to the question currently before it of sovereignty over the islands.
The Court begins by observing that uti possidetis juris may, in principle, apply to offshore possessions and maritime spaces (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 558, para. 333: p. 589, para. 386).
It is well established that “a key aspect of the principle [of uti possidetis juris] is the denial of the possibility of terra nullius” (ibid., p. 387, para. 42). However, that dictum cannot bring within the territory of successor States islands not shown to be subject to Spanish colonial rule, nor ipso facto render as “attributed”, islands which have no connection with the mainland coast concerned. Even if both Parties in this case agree that there is no question of the islands concerned being res nullius, necessary legal questions remain to be answered.
158. The Court observes that the mere invocation of the principle of uti possidetis juris does not of itself provide a clear answer as to sovereignty over the disputed islands. If the islands are not terra nullius, as both Parties acknowledge and as is generally recognized, it must be assumed that they had been under the rule of the Spanish Crown. However, it does not necessarily follow that the successor to the disputed islands could only be Honduras, being the only State formally to have claimed such status. The Court recalls that uti possidetis juris presupposes the existence of a delimitation of territory between the colonial provinces concerned having been effected by the central colonial authorities. Thus in order to apply the principle of uti possidetis juris to the islands in dispute it must be shown that the
Spanish Crown had allocated them to one or the other of its colonial provinces.
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159. The Court accordingly now turns to the issue of whether there is convincing evidence which would allow it to determine whether and to which of the colonial provinces of the former Spanish America the islands in question had been attributed, bearing in mind the fact that these islands had at that time no particular strategic, economic or military significance. If indeed any such attribution were to be established, depending on whose administrative authority the islands would have fallen under during colonial rule, the disputed islands would subsequently have come under the sovereignty of either Honduras or Nicaragua at the time they became independent States in 1821.
160. In the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), the Chamber of the Court, in its 1992 Judgment, found it necessary to consider whether it was “possible to establish the appurtenance in 1821 of each disputed island to one or the other of the various administrative units of the Spanish colonial structure in Central America”. The conclusions of the Chamber are applicable to the present case:
“In the case of the islands, there are no land titles of the kind which the Chamber has taken into account in order to reconstruct the limits of the uti possidetis juris on the mainland; and the legislative and administrative texts are confused and conflicting. The attribution of individual islands to the territorial administrative divisions of the Spanish colonial system, for the purposes of their allocation to the one or the other newly-independent State, may well have been a matter of some doubt and difficulty, judging by the evidence and information submitted. It should be recalled that when the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or administrative law of the pre-independence sovereign, in this case Spanish colonial law; and it is perfectly possible that that law itself gave no clear and definitive answer to the appurtenance of marginal areas, or sparsely populated areas of minimal economic significance.” (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, pp. 558-559, para. 333.)
161. The Parties have not produced documentary or other evidence from the pre-independence era which explicitly refers to the islands. The Court further observes that proximity as such is not necessarily determinative of legal title. The information provided by the Parties on the colonial administration of Central America by Spain does not allow for cer-
tainty as to whether one entity (the Captaincy-General of Guatemala), or two subordinate entities (the Government of Honduras and the General Command of Nicaragua), exercised administration over the insular terri-tories of Honduras and Nicaragua at that time. Until 1803 Nicaragua and Honduras were part of the Captaincy-General of Guatemala. On balance, the evidence presented in this case would seem to suggest that the Captaincy-General of Guatemala probably exercised jurisdiction over the areas north and south of Cape Gracias a Dios until 1803 when the Vice-Royalty of Santa Fe gained control over the part of the Mosquito Coast running south from Cape Gracias a Dios by virtue of the Royal Decree of that year (see also I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vol. I, pp. 19-22).
162. Unlike the land territory where the administrative boundary between different provinces was more or less clearly demarcated, it is apparent that there was no clear-cut demarcation with regard to islands in general. This seems all the more so with regard to the islands in question, since they must have been scarcely inhabited, if at all, and possessed no natural resources to speak of for exploitation, except for fishing in the surrounding maritime area.
163. The Court observes that the Captaincy-General of Guatemala may well have had control over land and insular territories adjacent to coasts in order to provide security, prevent smuggling and undertake other measures to ensure the protection of the interests of the Spanish Crown. However there is no evidence to suggest that the islands in question played any role in the fulfilment of any of these strategic aims. All of those islands lie at some distance from the mouth of the River Coco. Savanna Cay is about 28 miles away, South Cay is some 41 miles, Bobel Cay is 27 miles and Port Royal Cay is 32 miles. Notwithstanding the historical and continuing importance of the uti possidetis juris principle, so closely associated with Latin American decolonization, it cannot in this case be said that the application of this principle to these small islands, located considerably offshore and not obviously adjacent to the mainland coast of Nicaragua or Honduras, would settle the issue of sovereignty over them.
164. With regard to the adjacency argument, the Court notes that the independence treaties concluded by Nicaragua and Honduras with Spain (see paragraphs 34 and 35 above) refer to adjacency with respect to main-land coasts rather than to offshore islands. Nicaragua’s argument that the islands in dispute are closer to Edinburgh Cay, which belongs to Nicaragua, cannot therefore be accepted. While the Court does not rely on adjacency in reaching its findings, it observes that, in any event, the islands in dispute appear to be in fact closer to the coast of Honduras than to the coast of Nicaragua.
165. Having concluded that the question of sovereignty over the islands in dispute cannot be resolved on the above basis, the Court will now ascertain whether there were relevant effectivites during the colonial period. This test of “colonial effectivites” has been defined as
“the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 586, para. 63; Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 120, para. 47).
In the present case, information about such conduct by the colonial administrative authorities is lacking. This may be due to the fact that:
“The territory of each Party had belonged to the Crown of Spain. The ownership of the Spanish monarch had been absolute. In fact and law, the Spanish monarch had been in possession of all the territory of each. Prior to independence, each colonial entity being simply a unit of administration in all respects subject to the Spanish King, there was no possession in fact or law, in a political sense, independent of his possession. The only possession of either colonial entity before independence was such as could be ascribed to it by virtue of the administrative authority it enjoyed. The concept of ‘uti possidetis of 1821’ thus necessarily refers to an administrative control which rested on the will of the Spanish Crown. For the purpose of drawing the line of ‘uti possidetis of 1821’, we must look to the existence of that administrative control . . .
[P]articular difficulties are encountered in drawing the line of ‘uti possidetis of 1821′, by reason of the lack of trustworthy information during colonial times with respect to a large part of the territory in dispute. Much of this territory was unexplored. Other parts which had occasionally been visited were but vaguely known. In consequence, not only had boundaries of jurisdiction not been fixed with precision by the Crown, but there were great areas in which there had been no effort to assert any semblance of administrative authority.” (Arbitral Award rendered on 23 January 1933 by the Special Boundary Tribunal constituted by the Treaty of Arbitration between Guatemala and Honduras, RIAA, Vol. II, pp. 1324-1325.)
166. The Court considers that, given the location of the disputed islands and the lack of any particular economic or strategic significance of these islands at the time, there were no colonial effectivites in relation to them. Thus the Court can neither found nor confirm on this basis a title to territory over the islands in question.
167. In light of the above considerations the Court concludes that the principle of uti possidetis affords inadequate assistance in determining
sovereignty over these islands because nothing clearly indicates whether the islands were attributed to the colonial provinces of Nicaragua or of Honduras prior to or upon independence. Neither can such attribution be discerned in the King of Spain’s Arbitral Award of 1906. Equally, the Court has been presented with no evidence as to colonial effectivites in respect of these islands. Thus it has not been established that either Honduras or Nicaragua had title to these islands by virtue of uti possidetis.
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7.3. Post-colonial Effectivites and Sovereignty over the Disputed Islands
168. The Court will now examine the evidence submitted on post- colonial effectivites in determining sovereignty over the islands in dispute.
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169. Honduras states that in the event that the Court were to reject its claim to original title to the islands derived from uti possidetis juris and confirmed by post-colonial effectivites, then the matter would have to be decided “by examining which of the two States has made out a superior claim based upon the actual exercise or display of authorities over the islands, coupled with the necessary sovereign intent”. Honduras contends that in this case it is evident that through its effectivites it has made out a superior claim compared to Nicaragua, which has offered no evidence of effectivites.
170. Honduras has produced a number of arguments and evidence aimed at demonstrating the existence of such effectivites — including acts of legislative and administrative control, the application of Honduran civil and criminal law to the disputed islands, the regulation of immigration, fishing activities carried out from the islands, naval patrols, the oil concession practice of Honduras and public works.
171. For its part, Nicaragua states that the effectivites invoked by Honduras cannot displace Nicaragua’s original title over the islands based on adjacency. Making reference to the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Nicaragua maintains that it is only “[i]n the event that the effectivite does not co-exist with any legal title [that] it must invariably be taken into consideration” (I.C.J. Reports 1986, p. 587, para. 63). With regard to its own effectivites, Nicaragua argues that the exercise of its own sovereignty “over the maritime area in dispute including the cays, is attested to by the question of the turtle fisheries negotiations and agreements with Great Britain that began in the nineteenth century and were still ongoing in the 1960s”. Nicaragua further claims that in the 1970s “only Nicaragua was policing fishing activities in the area around the cays south of the Main Cape Channel and further to the east and north-east”.
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172. A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over a given territory. To sustain a claim of sovereignty on that basis, a number of conditions must be proven conclusively. As described by the Permanent Court of International Justice
“a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority” (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, pp. 45-46).
173. An additional element established by the Permanent Court of International Justice in the Legal Status of Eastern Greenland case is “the extent to which sovereignty is also claimed by some other Power” (ibid., p. 46). The exercise of sovereign rights must also have a certain dimension proportionate to the nature of the case. In its Judgment in the Eastern Greenland case, the Court stated that:
“It is impossible to read the record of the decisions in cases as to territorial sovereignty without observing that in many cases the tri-bunal has been satisfied with very little in the way of the actual exer-cise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.” (Ibid.)
174. Sovereignty over minor maritime features, such as the islands in dispute between Honduras and Nicaragua, may therefore be established on the basis of a relatively modest display of State powers in terms of quality and quantity. In the Indonesia/Malaysia case, the Court indicated that
“in the case of very small islands which are uninhabited or not per-manently inhabited — like Ligitan and Sipadan, which have been of little economic importance (at least until recently) — effectivites will indeed generally be scarce” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 682, para. 134).
The Court further specified
“it can only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such. Regulations or administrative acts of a general nature can therefore be taken as effectivites with regard to Ligitan and Sipadan only if it is clear from their terms or their effects that they pertained to these two islands.” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002), pp. 682-683, para. 136.)
175. In keeping with this approach in the Indonesia/Malaysia case, the Court will examine whether in the present case the activities relied on by the contending Parties show a relevant display of sovereign authority despite being “modest in number” (ibid., p. 685, para. 148). It will also be important to determine in this case whether these activities “cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands” (ibid.).
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176. The Court will now consider the different categories of effectiv- ites presented by the Parties.
177. Legislative and administrative control. Honduras claims it has exercised legislative and administrative control over the islands and pro-vides a number of arguments in support of this proposition. Nicaragua does not seek to prove its own exercise of legislative and administrative control over the islands but instead argues that Honduras’s evidence is insufficient.
178. Honduras’s claim is based on the text of its Constitutions and of its Agrarian Law of 1936. The three Constitutions (1957, 1965, 1982) list islands which belong to Honduras, referring by name to a number of islands located in the Atlantic, including among others the cays of Falso, Gracias a Dios, Palo de Campeche “and all others located in the Atlantic, which historically, juridically and geographically (only the 1982 Constitution uses the term geographically) belong to it”. The 1982 Constitution adds, by name, the cays of Media Luna and also Rosalind and Serranilla.
179. Under the title “Right of the State”, the Honduran Agrarian Law of 1936 lists a number of cays that “belong to Honduras”, “including Palo de Campeche” by name, and “others situated in the Atlantic Ocean”. However, none of the Constitutions nor the Agrarian Law make explicit reference to the islands and cays in dispute. Honduras nonetheless states that the reference to Palo de Campeche and the other islands in the Atlantic should be taken to include the adjacent islands in dispute.
180. Nicaragua counters the Honduran legislative evidence on the grounds that it does not make any specific mention either of the area in dispute or of any intention to regulate activity on the islands. Nicaragua states that it therefore had “had no reason to protest” as the Honduran laws
“have no relevance to the matter of maritime delimitation, not only because of their dates (those after 1977) but because of their content, which regulates matters within areas of Honduran sovereignty and jurisdiction with no specific mention of the islands”.
181. The Court, noting that there is no reference to the four islands in dispute in the various Honduran Constitutions and in the Agrarian Law, further notes that there is no evidence that Honduras applied these legal instruments to the islands in any specific manner. The Court therefore finds that the Honduran claim that it had legislative and administrative control over the islands is not convincing.
182. Application and enforcement of criminal and civil law. Honduras also claims that its civil law has been applied and enforced by it in the disputed area, and provides various examples. It asserts that accidents in the area, usually involving divers, have long been reported to Honduras, rather than to Nicaraguan authorities. It claims that “the Honduran courts hear those cases because the accidents are treated as having occurred in the territory of Honduras”. Honduras provides excerpts from four labour complaints, of which three were filed before the Labour Court of Puerto Lempira and one was filed before a court of Roatan (Bay Islands).
183. Honduras further claims that its “criminal laws are applied and enforced before its courts in relation to acts occurring on the islands” and that a “number of cases of theft and physical assault occurring on Savanna and Bobel Cays have been dealt with by the Honduran authorities and have reached the courts of Honduras”. It provides an extract from a decision of the Lower Court of Puerto Lempira, dated 17 April 1997, related to a confiscation of a fibreglass boat which was found abandoned in Half Moon Cay. It provides a criminal complaint lodged before a court of Puerto Lempira stating that six aqualung sets had been stolen in South Cay from the ship “Mercante” and naming the two potential perpetrators who are to be summoned for interrogation. Honduras also places legal significance on a 1993 drug enforcement operation in the area by Honduras authorities and the United States Drug Enforcement Administration (DEA). This operation, known as the Satellite Operation Plan, involved the “conduct [of] reconnaissance operations to identify and locate, via the taking of aerial photographs, possible targets, areas and installations used in or connected to drug trafficking on a national scale, with the aim of neutralising criminal operations involving illicit drug trafficking”. The Plan also provided for “suitably equipped aircraft” to “fly
over the national air space”. A list of “islets and cays” is given in the Satellite Operation Plan which includes Bobel Cay, South Cay, Half Moon Cay and Savanna Cay.
184. Nicaragua challenges the contentions of Honduras but makes no claim with regard to its own application or enforcement of criminal and civil law. Nicaragua’s objection is that all the examples adduced by Hon-duras stem from the 1990s, well after the critical date of 1977 proposed by Nicaragua. It also argues that the cases illustrated by Honduras may have been filed in its courts because they concerned Honduran nationals, not because the incidents took place on Honduran territory.
185. The Court is of the opinion that the evidence provided by Honduras of the application and enforcement of its criminal and civil laws does have legal significance in the present case. The fact that a number of these acts occurred in the 1990s is no obstacle to their relevance as the Court has found the critical date in relation to the islands to be 2001. The criminal complaints have relevance because the criminal acts occurred on the islands in dispute in this case (South Cay and Savanna Cay). The 1993 drug enforcement operation, while not necessarily an example of the application and enforcement of Honduran criminal law, can well be con-sidered as an authorization by Honduras to the United States Drug Enforcement Administration (DEA) granting it the right to fly over the islands mentioned in the document, which are within the disputed area. The permit extended by Honduras to the DEA to overfly the “national air space”, together with the specific mention of the four islands and cays, may be understood as a sovereign act by a State, amounting to a relevant effectivite in the area.
186. Regulation of immigration. Honduras argues that it maintains immigration records relating to foreign nationals living in Honduras and that such records “routinely include information on foreigners living on the islands now claimed by Nicaragua”. By way of example, there is a Note dated 31 March 1999 addressed by the Regional Agent of Migration of Puerto Lempira to the General Director of Population and Migration Policy in Tegucigalpa by which a report is provided. In it there is a description of the number of huts in the inspected location, the nationality of persons (including in the case of foreigners details of their passport number, date of birth and visa expiry date) and the expiry date of their fishing licences. The information covers Bobel Cay, Savanna Cay, Port Royal Cay, South Cay and Gorda Cay.
187. The Court notes that there appears to have been substantial activity with regard to immigration and work-permit related regulation by Honduras of persons on the islands in 1999 and 2000. There is no evidence of any such regulation before 1999. Correspondence addressed by the Director of Population and Migration Policy to the Honduran Minister for the Interior regarding immigration movements on the disputed islands is dated November and December 1999. Honduras also provides evidence aimed at showing the exercise of regulatory powers on matters of immigration. In 1999, Honduran authorities visited the four islands and recorded the details of the foreigners living in South Cay, Port Royal Cay and Savanna Cay (Bobel Cay was uninhabited at the time, though it had previously been inhabited). Honduras provides a statement by a Honduran immigration officer who visited the islands three or four times from 1997 to 1999. He also accompanied the naval forces during their patrol of the area around the islands on two occasions. According to the immigration officer, the Town Hall of Puerto Lempira issues provisional work permits to Jamaican and Nicaraguan nationals and on occasion nationals of third States living on the islands have apparently received temporary permits until they obtain legal residence. Honduras also provides a document extending the visas of three Jamaican nationals “established in” Savanna Cay and South Cay.
188. Nicaragua again objects to the evidence of immigration regulatory activity by Honduras, claiming that it only dates back to 1999, i.e. after the critical date.
189. The Court finds that legal significance is to be attached to the evi-dence provided by Honduras on the regulation of immigration as proof of effectivites, notwithstanding that it began only in the late 1990s. The issuance of work permits and visas to Jamaican and Nicaraguan nationals exhibit a regulatory power on the part of Honduras. The visits to the islands by a Honduran immigration officer entails the exercise of juris- dictional authority, even if its purpose was to monitor rather than to regulate immigration on the islands. The time span for these acts of sovereignty is rather short, but then it is only Honduras which has undertaken measures in the area that can be regarded as acts performed a titre de souverain. There is no contention by Nicaragua of regulation by itself of immigration on the disputed islands either before or after the 1990s.
190. Regulation of fisheries activities. Honduras claims that the bita- coras (fishing licences) granted to fishermen are evidence of acts under governmental authority. It is said that “[m]any of the fishermen who work these areas and do so pursuant to Honduran-granted licences make
use of the islands. Some of them live on the islands and others just visit. . .”. Honduras further claims that “[t]o support its conduct on fisheries, Honduras put before the Court 28 witness statements. Out of those 28, 24 refer to activities on the cays in sustaining fisheries activities authorized by Honduras”.
191. Honduras provides evidence that there are buildings constructed on Savanna Cay which have been authorized and licensed by the authorities in Puerto Lempira. There is a testimony of a Jamaican national, “a fisherman by profession, currently living in Savanna Cay”, who states that: “We have constructed all the buildings existing in the cay. These are registered in the municipality of Puerto Lempira. All the houses have been enumerated by the municipality, which commenced to enumerate them approximately two years ago.” Another Jamaican national, who states that “for most part of the year [he is] living in Savanna Cay”, also attests to Jamaicans “[having] constructed all the housing existing in this cay. These houses have been legally constructed with the consent of the Honduran authorities.”
192. Honduras claims that “fishing equipment is stored on South Cay on the basis of a fishing permit obtained from the local authorities”. A Mr. Mario Ricardo Dominguez places on record that due to his fishing activities,
“he makes use of the installations located in South Cay as from [1992]; the installations in question include a wooden house where he stores fishing equipment, such as fishing nets, diving equipment, a freezer and an electricity plant … in order to conduct his fishing equipment he applies for a fishing permit each year from the Fishing Inspector of Puerto Lempira and satisfies the appropriate tax ther-eon”.
193. Nicaragua contends that Honduras “does not present any evidence that the regulation of fishing activities by Honduras proves a title to the islets in dispute” and that Honduras more broadly fails to distinguish between activities of relevance to maritime delimitation and to the establishment of title over the islands.
194. The Court has stated that, with regard to activities by private per-sons, these
“cannot be seen as effectivites if they do not take place on the basis of official regulations or under governmental authority” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 683, para. 140).
In that regard, Honduras has presented witness statements to the effect that Honduras licenses fishing activities around the islands and cays, and authorizes the construction of buildings on Savanna Cay. Whether the regulation of fishing activities by Honduras around the islands in dispute constituted an actual exercise or display of authority in respect of the dis-puted islands as such is a further question that must be determined.
195. The Court observes that all the evidence put forward by Honduras concerning fishing activities shows that these activities took place under Honduran authorization in the waters around the islands, but not that such fishing took place from the islands themselves. Instead, Honduras provides evidence that it has licensed activities on the islands which are related to fishing activities, such as the construction of buildings, or the storage of fishing boats. When looked at as a whole, the Court believes that the fishing licences, although undesignated as to areas, were known by the Honduran authorities to have been used for fishing taking place around the islands; Honduras authorized the construction of housing on the islands for purposes related to fishing activities. The Court is thus of the view that the Honduran authorities issued fishing permits with the belief that they had a legal entitlement to the maritime areas around the islands, derived from Honduran title over those islands. The evidence of Honduran-regulated fishing boats and construction on the islands is also legally relevant for the Court under the category of administrative and legislative control (see paragraphs 177-181 above).
196. The Court considers that the permits issued by the Honduran Government allowing the construction of houses in Savanna Cay and the permit for the storage of fishing equipment in the same cay provided by the municipality of Puerto Lempira may also be regarded as a display, albeit modest, of the exercise of authority, and as evidence of effectivites with respect to the disputed islands.
197. Nicaragua for its part contends that it has exercised jurisdiction over the islands in question in connection with its turtle fishing dispute with the United Kingdom which started in the nineteenth century and extended into the beginning of the twentieth century. Nicaragua also argues that the negotiations in the 1950s with the United Kingdom for the renewal of an earlier bilateral treaty of 1916 which remained “the basis for turtle fishing of the Cayman islanders until 1960” provide further evidence of Nicaraguan title over the islands in dispute. In this connection Nicaragua provides a 1958 map produced by the United Kingdom hydrographer Commander Kennedy, which it states “includes the islets, cays and reefs claimed by Nicaragua in the area in dispute with Honduras”.
198. The Court first notes that the map does not prove that Commander Kennedy viewed these islands as clearly and unquestionably appertaining to Nicaragua. The Court observes that although the map prepared by Commander Kennedy did indeed include the islands now in
dispute between Nicaragua and Honduras, he noted that the islands “might … be claimed to be on the continental shelf of Honduras, depending on how the boundary across the shelf be finally agreed”. Further, the map work of Commander Kennedy was not undertaken on the instructions of the United Kingdom Government. Neither does the Court find persuasive the argument that the negotiations between Nicaragua and the United Kingdom in the 1950s over renewed turtle fishing rights off the Nicaraguan coast attests to Nicaraguan sovereignty over the islands in dispute. The Court accordingly cannot grant legal significance to the turtle fishing dispute between Nicaragua and the United Kingdom for the purposes of effectivites.
199. Naval patrols. Basing itself on a number of depositions, Honduras contends that it has carried out naval and other patrols since 1976 to maintain security and to enforce Honduran laws around the islands, par-ticularly fisheries laws and immigration laws. A Honduran immigration officer and a port supervisor at Puerto Lempira, who worked with the Honduran navy in undertaking patrols to the islands, provide their tes-timony. There is also “documentary evidence, in the form of patrol log-books and other materials, showing Honduran patrols around the cays, the reefs and the banks in the areas to the north of the 15th parallel”. Honduras also states that two patrol boats designated for this purpose have carried out regular operations, visiting the islands as well as Rosalind and Thunder Knoll Banks.
200. Nicaragua contests the Honduran claim by emphasizing that the military and naval patrols took place after the claimed critical date of 1977, Nicaragua also states that it undertook its own military and naval patrols around the islands.
201. The Court has already indicated that the critical date for the pur-poses of the issue of title to the islands is not 1977 but 2001. The evidence put forward by both Parties on naval patrolling is sparse and does not clearly entail a direct relationship between either Nicaragua or Honduras and the islands in dispute. Thus the Court does not find the evidence pro-vided by either Party on naval patrols persuasive as to the existence of effectivites with respect to the islands. It cannot be deduced from this evi-dence that the authorities of Nicaragua or Honduras considered the islands in dispute to be under their respective sovereignty (see Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 683, para. 139). The Court will later consider the legal significance of the evidence submitted by the Parties on naval patrols in the context of the maritime dispute between them.
202. Oil concessions. In the written pleadings Honduras presented evi-dence of oil concessions as proof of title over the islands in the disputed area. However during the oral proceedings, this argument was not devel-oped further. In its oral argument, Honduras changed its focus by con-tending that “[a] number of the Honduran concessions [had given] rise to sovereign activity on the islands”. Thus, according to Honduras, the islands had “supported oil exploration” and had “been used as a base for oil exploration activity since the 1960s”. In the oral proceedings, Honduras concentrated on the relevance of the Parties’ oil concessions in connection with the claimed existence of a tacit agreement to respect the “traditional” boundary along the 15th parallel.
203. Nicaragua states that the practice of Nicaragua and Honduras regarding the issuing of oil concessions shows that it is not consistent as far as the title to the islets is concerned. In Nicaragua’s view, the practice of Nicaragua and Honduras shows that there was no agreement on the existence of a line of allocation of sovereignty, and that Nicaragua con-sidered the islets in dispute in the present case formed part of its territory.
204. The Court finds that the evidence relating to the offshore oil exploration activities of the Parties has no bearing on the islands in dispute. Therefore in its consideration of the question of effectivites supporting title over the islands, the Court will concentrate on the oil concession related acts on the islands under the category of public works.
205. Public works. Honduras offers as further evidence of effectivites the construction under its authorization of an antenna on Bobel Cay in 1975 to aid Union Oil. An additional piece of evidence of effectivites sub-mitted by Honduras is the triangulation markers placed on Savanna Cay, South Cay and Bobel Cay in 1980 and 1981, pursuant to an agreement with the United States reached in 1976. Honduras states that there was no protest by Nicaragua to the 1976 Agreement or to the placing of the markers, nor did Nicaragua request their removal since they were placed more than 20 years ago. Nicaragua does not contest that these activities could have the character of effectivites but rather observes that the mark-ers were placed after what it conceived as the critical date in 1977.
206. In the Qatar v. Bahrain case, the Court accorded legal significance to certain public works when it found that:
“Certain types of activities invoked by Bahrain such as drilling of artisan wells would, taken by themselves, be considered controversial as acts performed a titre de souverain. The construction of navi-gational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of [the island], the activities carried out by Bahrain on that island
must be considered sufficient to support Bahrain’s claim that it has sovereignty over it.” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 99-100, para. 197.)
207. The Court observes that the placing on Bobel Cay in 1975 of a 10 metre long antenna by Geophysical Services Inc. for the Union Oil Company was part of a local geodetic network to assist in drilling activities in the context of oil concessions granted. Honduras claims that the construction of the antenna was an integral part of the “oil exploration activity authorized by Honduras”. Reports on these activities were peri-odically submitted by the oil company to the Honduran authorities, in which the amount of the corresponding taxes paid was also indicated. Nicaragua claims that the placement of the antenna on Bobel Cay was a private act for which no specific governmental authorization was granted.
The Court is of the view that the antenna was erected in the context of authorized oil exploration activities. Furthermore the payment of taxes in respect of such activities in general can be considered additional evidence that the placement of the antenna (which, as noted, was part of those general activities) was done with governmental authorization.
The Court thus considers that the public works referred to by Honduras constitute effectivites which support Honduran sovereignty over the islands in dispute.
208. Having considered the arguments and evidence put forward by the Parties, the Court finds that the effectivites invoked by Honduras evi-denced an “intention and will to act as sovereign” and constitute a modest but real display of authority over the four islands (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 46; see also Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 71).
Although it has not been established that the four islands are of eco-nomic or strategic importance and in spite of the scarcity of acts of State authority, Honduras has shown a sufficient overall pattern of conduct to demonstrate its intention to act as sovereign in respect of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay. The Court further notes that those Honduran activities qualifying as effectivites which can be assumed to have come to the knowledge of Nicaragua did not elicit any protest on the part of the latter.
With regard to Nicaragua, the Court has found no proof of intention or will to act as sovereign, and no proof of any actual exercise or display of authority over the islands. Thus Nicaragua has not satisfied the criteria formulated by the Permanent Court of International
Justice in the Legal Status of Eastern Greenland case (see paragraph 172 above).
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7.4. Evidentiary Value of Maps in Confirming Sovereignty over the Disputed Islands
209. In the present case, a large number of maps were presented by the Parties to illustrate their respective arguments, but both Nicaragua and Honduras acknowledged that such collection of cartographic material did not constitute of itself a territorial title or evidence of sovereignty over the islands, or that the maps would have a substantive probative value.
210. Among them, a 1982 official map of Nicaragua exhibits a large portion of the Caribbean Sea adjacent to the coasts of Nicaragua and Honduras and includes a number of maritime features (although not the four disputed islands). There is no attribution of sovereignty of the maritime features. By the same token, Honduras provides official maps that cover parts of the Atlantic Ocean in the vicinity of Honduras and Nicaragua, but with no assignation of sovereignty to either country.
211. A 1933 map of the Republic of Honduras made by the Pan- American Institute of Geography and History conveys the impression that at least Bobel Cay, Logwood Cay, Media Luna Reef and South Cay are to be considered as belonging to Honduras. However, the map includes a general disclaimer concerning the areas in dispute.
212. The official map of the Republic of Honduras published in 1994 includes, as insular possessions of Honduras in the Caribbean Sea, a series of cays, “located in the rise geographically and historically known as ‘Nicaraguan Rise'” in areas which, according to Nicaragua, are “under the complete sovereignty and jurisdiction of Nicaragua”. For this publication, Nicaragua expressed “its total disagreement and protests”.
213. The Court, having examined the cartographic material submitted by Nicaragua and Honduras, will now examine the extent to which it can be said to support their respective claims of sovereignty over the islands north of the 15th parallel. In undertaking this task, the Court will bear in mind that maps are
“to be considered, although such descriptive material is of slight value when it relates to territory of which little or nothing was known and in which it does not appear that any administrative control was actually exercised” (Arbitral Award rendered on 23 January 1933 by the Special Boundary Tribunal constituted by the Treaty
of Arbitration between Guatemala and Honduras, RIAA, Vol. II, p. 1325).
214. In the Court’s view the earlier maps do not support either of the Parties in their claims. In the present case, none of the maps submitted by the Parties which include some of the islands in dispute clearly specify which State is the one exercising sovereignty over those islands. In the Island of Palmas case, the Arbitral Award stated that
“only with the greatest caution can account be taken of maps in deciding a question of sovereignty . . . Any maps which do not pre-cisely indicate the political distribution of territories . . . clearly marked as such, must be rejected forthwith . . .
The first condition required of maps that are to serve as evidence on points of law is their geographical accuracy. It must here be pointed out that not only maps of ancient date, but also modern, even official or semi-official maps seem wanting in accuracy.” (Island of Palmas (Netherlands/United States of America), 4 April 1928, RIAA, Vol. II, pp. 852-853.)
215. The Court reaffirms the position it has previously taken regarding the extremely limited scope of maps as a source of sovereign title
“of themselves, and by virtue solely of their existence, [maps] cannot constitute a territorial title, that is, a document endowed by interna-tional law with intrinsic legal force for the purpose of establishing territorial rights” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 582, para. 54).
216. The Parties have conflicting views as to the maps and the Court has pondered their probative value with great care. In the 1986 Judgment of the Chamber of the Court in the Burkina Faso/Mali case, it was stated inter alia that: “Other considerations which determine the weight of maps as evidence relate to the neutrality of their sources towards the dispute in question and the parties to that dispute.” (Ibid., p. 583, para. 56.)
217. In this case, the submission of cartographic material by the Parties essentially serves the purpose of buttressing their respective claims and of confirming their arguments. The Court finds that it can derive little of legal significance from the official maps submitted and the maps of geographical institutions cited; these maps will be treated with a certain reserve. Such qualification is contained in a previous pronouncement by the Chamber of the Court when it said that:
“Since relatively distant times, judicial decisions have treated maps with a considerable degree of caution . . . maps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps. In consequence, except when the maps are in the cat-egory of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title.” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 583, para. 56.)
218. None of the maps submitted by the Parties was part of a legal instrument in force nor more specifically part of a boundary treaty con-cluded between Nicaragua and Honduras.
219. The Court concludes that the cartographic material that was pre-sented by the Parties in the written and oral proceedings cannot of itself support their respective claims to sovereignty over islands to the north of the 15th parallel.
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7.5. Recognition by Third States and Bilateral Treaties; the 1998 Free Trade Agreement
220. Honduras claims that a number of States have recognized Hon- duran sovereignty over the islands located north of the 15th parallel and jurisdiction over the maritime areas in that zone. For example, it states that this is demonstrated by Argentina’s request in 1975 for authorization for its aircraft to overfly the islands in question; by Jamaica’s request in 1977 to have access to Honduran waters to rescue twelve Jamaican nationals who were shipwrecked in Savanna Cay; by the installation of triangulation markers pursuant to the 1976 Honduran/United States Arrangement on Savanna Cay, South Cay and Bobel Cay in 1980 and 1981 and by drug enforcement operations carried out jointly by Honduras and the United States in 1993. Honduras also cites a 1983 Report of the United States Board on Geographic Names which “identifies inter alia the following as being located in Honduras: South Cay, Bobel Cay, Media Luna Cay (which is Savanna Cay), and the Arrecifes (reefs) de la Media Luna”. Honduras further states that the 1995 “Sailing Directions” for the Caribbean Sea issued by the United States Defense Mapping Agency mention among the features relating to the Honduran coastline “Arrecifes de la Media Luna (Half Moon Reef), Logwood Cay, Cayo Media Luna, Bobel Cay, Hall Rock, Savanna Reefs, South Cay, Alargate Reef (Arrecife Alargado), Main Cape Shoal, and False Cape”.
221. Nicaragua disputes these Honduran contentions, asserting that in
the case of the Argentine aircraft, the flight route was not located over the cays in dispute and indeed was outside of any area of territorial sea around the islands in dispute. As to the application made by Jamaica, Nicaragua maintains “it is not clear whether the Jamaican request is actually concerned with one of the islets in dispute in the present proceedings”. Nicaragua also questions the importance of the 1976 Arrangement between the United States and Honduras, because it “has no relevance for the issue of sovereignty over the islets, as it includes no reference to any of them”, adding that the markers were placed after its claimed critical date. As for the joint drug enforcement operation, Nicaragua states that it “only took place in 1993 and no evidence is offered of acts in the islets in dispute”. Nicaragua further argues that the description of the “Sailing Directions” of the maritime area off the mainland coast of Central America in no way concerns the recognition of the Hon- duran position in respect of the islets in dispute.
222. According to Honduras, further recognition is provided by the conclusion of the
“Treaties of 1986 (between Colombia and Honduras) and 1993 (between Colombia and Jamaica). Under these, both Colombia and Jamaica recognize the Honduran sovereignty and jurisdiction over the waters and islands as far as the bank of Serranilla north of the 15th parallel, i.e., west of the Joint Administration Area established by Colombia and Jamaica around that bank.”
In relation to the 1986 Treaty between Colombia and Honduras on mari-time delimitation, Nicaragua contends that it claimed in 1999 before the Central American Court of Justice that, by ratifying that Treaty, Honduras had breached the Central American community rules and principles (see paragraphs 69-70 above).
As for the 1993 Treaty between Colombia and Jamaica on maritime delimitation, Nicaragua asserts that it was concluded after the dispute between Nicaragua and Honduras arose and that it has no relevance to the present case because the maritime boundary proposed by Nicaragua does not encroach upon any rights to maritime zones Jamaica may have.
223. As to recognition by third States of Nicaragua’s sovereignty over the islands in dispute, Nicaragua claims that during negotiations with Jamaica on the delimitation of a maritime boundary in 1996 and 1997 a “Jamaican proposal for the delimitation of the maritime boundary recognized Media Luna Cay as part of the territory of Nicaragua”.
Honduras however states that Jamaica has provided Honduras with an aide-memoire dated 9 April 2003 stating that, having reviewed the documents introduced by Nicaragua in its Reply,
“[t]he Government of Jamaica has examined its records of the above- mentioned documents, and can confirm that these documents do not in any way indicate that Jamaica has ever expressed support for Nicaraguan maritime claims against Honduras.
The Government of Jamaica has not in any way expressed support for the claims of either party in this dispute.
The view of the Government of Jamaica has always been that this is a dispute between two sovereign States, which is being adjudicated by the International Court of Justice, and it has therefore adopted a position of complete neutrality in the dispute, while maintaining continued friendly relations with both parties.”
224. In the Court’s view there is no evidence to support any of the contentions made by the Parties with respect to recognition by third States that sovereignty over the disputed islands is vested in Honduras or in Nicaragua. Some of the evidence offered by the Parties shows episodic incidents that are neither consistent nor consecutive. It is obvious that they do not signify an explicit acknowledgment of sovereignty, nor were they meant to imply any such acknowledgment.
225. The Court observes that bilateral treaties of Colombia, one with Honduras and one with Jamaica, have been invoked by Honduras as proof of recognition of sovereignty over the disputed islands (see paragraph 222 above). The Court notes that in relation to these treaties Nicaragua never acquiesced in any understanding that Honduras had sovereignty over the disputed islands. The Court does not find these bilateral treaties relevant as regards recognition by a third party of title over the disputed islands.
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226. The Court recalls that during the oral proceedings it was apprised of the negotiating history of a Central America-Dominican Republic Free Trade Agreement which was signed on 16 April 1998 in Santo Domingo by Nicaragua, Honduras, Costa Rica, Guatemala, El Salvador and the Dominican Republic, and which entered into force on different dates for each State (for Honduras on 19 December 2001; and for Nicaragua on 3 September 2002). According to Honduras, the original text of the Agreement, which was signed by the President of Nicaragua, included an Annex to Article 2.01 giving a definition of the territory of Honduras, which referred inter alia to Palo de Campeche and Media Luna Cays. This was the text ratified by Honduras. Honduras claims that the term “Media Luna” was “frequently used to refer to the entire group of
islands and cays” in the area in dispute. Nicaragua points out that during the ratification process, its National Assembly approved a revised text of the Free Trade Agreement which had been agreed by the signatory States, and which did not contain the Annex to Article 2.01.
The Court has obtained the text of the above-mentioned Annex. It observes that the four islands in dispute are not mentioned by name in the Annex. Moreover, the Court notes that it has not been presented with any convincing evidence that the term “Media Luna” has the meaning advanced by Honduras. In these circumstances the Court finds that it need not further examine arguments relating to this Treaty nor its status for the purposes of these proceedings.
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7.6. Decision as to Sovereignty over the Islands
227. The Court, having examined all of the evidence related to the claims of the Parties as to sovereignty over the islands of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay, including the issue of the evidentiary value of maps and the question of recognition by third States, concludes that Honduras has sovereignty over these islands on the basis of post-colonial effectivites.
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8. Delimitation of Maritime Areas
228. The question of sovereignty over the four islands in the area in dispute having been resolved, the Court turns now to the delimitation of maritime areas between Nicaragua and Honduras in the Caribbean Sea. The geography of the region, so critical to the delimitation, is described in detail at paragraphs 20 to 32.
8.1. Traditional Maritime Boundary Line Claimed by Honduras 8.1.1. The principle of uti possidetis juris
229. As mentioned earlier in this judgment (see paragraph 147 above), Honduras maintains that the uti possidetis juris principle referred to in the Gamez-Bonilla Treaty and the 1906 Award of the King of Spain is applicable to the maritime area off the coasts of Honduras and Nicaragua, and that the line of 15th parallel constitutes the line of maritime delimitation resulting from that application. It asserts that Nicaragua and Honduras succeeded in 1821, inter alia, to a maritime area extending 6 miles (see paragraphs 86 and 148 above) and that uti possidetis juris “gives rise to a presumption of Honduran title to the continental shelf and EEZ north of the 15th parallel”.
230. Honduras argues that prior to the independence of Nicaragua and Honduras in 1821, Cape Gracias a Dios separated the jurisdictional areas of the different colonial authorities which exercised authority over the maritime areas off the coasts of present day Nicaragua and Honduras. Honduras asserts that the Royal Order of 23 August 1745 initially divided the military jurisdiction of the maritime area between the Government of Honduras and the General Command of Nicaragua, with Cape Gracias a Dios marking the separation between the two military jurisdictions. Moreover, Honduras contends that the 15th parallel marked the traditional maritime boundary between Nicaragua and Honduras because the propensity of the Spanish Empire to use parallels and meridians to identify jurisdictional divisions makes it inconceivable that the Royal Decree of 1803 would have created a maritime division along a line other than the 15th parallel.
231. In response to Honduras, Nicaragua claims that jurisdiction over the territorial sea fell to Spanish authorities in Madrid, not to local authorities, including Captaincy-Generals. Nicaragua argues that the Spanish Crown’s claim to a 6-mile territorial sea “tells [us] nothing with regard to the limit of this territorial sea between the Provinces of Honduras and Nicaragua” (emphasis in the original). Finally, Nicaragua argues that it would be inappropriate for the Court to rely upon uti possidetis to establish title to the exclusive economic zone and to the continental shelf which are distinctly modern legal concepts.
232. The Court observes that the uti possidetis juris principle might in certain circumstances, such as in connection with historic bays and terri-torial seas, play a role in a maritime delimitation. However, in the present case, were the Court to accept Honduras’s claim that Cape Gracias a Dios marked the separation of the respective maritime jurisdiction of the colo-nial provinces of Honduras and Nicaragua, no persuasive case has been made by Honduras as to why the maritime boundary should then extend from the Cape along the 15th parallel. It merely asserts that the Spanish Crown tended to use parallels and meridians to draw jurisdictional divi-sions, without presenting any evidence that the colonial Power did so in this particular case.
233. The Court thus cannot uphold Honduras’s assertion that the uti possidetis juris principle provided for a maritime division along the 15th parallel “to at least six nautical miles from Cape Gracias a Dios” nor that the territorial sovereignty over the islands to the north of the 15th parallel on the basis of the uti possidetis juris principle “provides the traditional line which separates these Honduran islands from the Nicaraguan islands to the south” with “a rich historical basis
that contributes to its legal foundation”.
234. The Court further observes that Nicaragua and Honduras as new independent States were entitled by virtue of the uti possidetis juris prin-ciple to such mainland and insular territories and territorial seas which constituted their provinces at independence. The Court, however, has already found that it is not possible to determine sovereignty over the islands in question on the basis of the uti possidetis juris principle (see paragraph 158 above). Nor has it been shown that the Spanish Crown divided its maritime jurisdiction between the colonial provinces of Nica-ragua and Honduras even within the limits of the territorial sea. Although it may be accepted that all States gained their independence with an entitle-ment to a territorial sea, that legal fact does not determine where the maritime boundary between adjacent seas of neighbouring States will run. In the circumstances of the present case, the uti possidetis juris principle cannot be said to have provided a basis for a maritime division along the 15th parallel.
235. The Court notes that the 1906 Arbitral Award, which indeed was based on the uti possidetis juris principle, did not deal with the maritime delimitation between Nicaragua and Honduras and that it does not confirm a maritime boundary between them along the 15th parallel. First, the Award fixed “the extreme boundary points on the coast of the Atlantic” and from that point indicated the land boundary line westwards. Second, there is no indication in the Award that the 15th parallel was perceived as the boundary line.
236. The Court thus finds that the contention of Honduras that the uti possidetis juris principle provides a basis for an alleged “traditional”
maritime boundary along the 15th parallel cannot be sustained.
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8.1.2. Tacit agreement
237. In addition to its claim based on uti possidetis juris Honduras points to a variety of elements, having come into existence both before and after the Sandinista revolution in 1979, that, according to it, demonstrate that there was a “de facto boundary based on the tacit agreement of the Parties” at the 15th parallel (14° 59’48” N). Honduras further argues that this tacit understanding constituted an “agreement” under Articles 15, 74, and 83 of UNCLOS legally delimiting a single maritime boundary.
238. Honduras further asserts that this “traditional” arrangement has its roots in the King of Spain’s rejection in his 1906 Award of Nicaragua’s land and maritime claims north of the 15th parallel. Honduras concedes that there is no “formal and written bilateral treaty” governing the delimitation, but argues that ever since the Award was rendered, the
Parties’ oil concession practice in respect of the 15th parallel has coincided and has even been co-ordinated along that parallel and that this evinces a tacit agreement. Honduras relies on the Court’s recent statement in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) that oil concessions “may … be taken into account” if they are “based on express or tacit agreement between the parties” (Judgment, I.C.J. Reports 2002, p. 448, para. 304). In this regard, Honduras points to a series of oil concessions it granted as far south as the 15th parallel which elicited no protest from Nicaragua, as well as to a series of concessions granted by Nicaragua that extended as far north as the 15th parallel. Honduras maintains that even those Nicaraguan concessions which did not explicitly identify their northern limit, nonetheless “recognized and gave effect” to that limit because the configuration and size (in hectares) of the concession area corresponded to the northern limit of the 15th parallel.
239. Honduras argues specifically that Coco Marina, a joint venture oil well straddling the 15th parallel, provides “conclusive” evidence of agreement over the boundary that was “expressly recognized” as such by Nicaragua. Honduras explains that this was a joint venture between Union Oil Company of Honduras and Union Oil Company of Central America (based in Nicaragua) that had been approved by both the Nica- raguan and Honduran Governments: the costs were to be shared equally by the two companies.
240. Honduras further contends that fishing activities in the disputed area suggest that there was a tacit agreement between the Parties on the 15th parallel as the maritime boundary. Honduras points in this regard to fishing activities it licensed in areas as far south as the 15th parallel as well as to a fishing licence initially granted in 1986 by Nicaragua covering areas north of the 15th parallel but which was revoked in 1987 after protest by Honduras. Honduras maintains that it has treated the 15th parallel as the maritime boundary for purposes of regulating and enforcing its fisheries policies and that Nicaragua has done the same. In particular, it refers to a situation in 2000 when a Honduran vessel allegedly caught fishing illegally south of the 15th parallel was apprehended by a Nicara- guan patrol, escorted to a point on the 15th parallel whereupon it was released.
241. Honduras maintains that ever since the establishment of the Hon-duran navy in 1976, Honduran naval patrols have carried out a number of functions north of the 15th parallel, including the enforcement of fisheries and immigration laws, in addition to maintaining Honduras’s security. Honduras argues that by contrast, Nicaragua has not produced evidence to demonstrate that its naval patrols have
sought to regulate or enforce Nicaraguan laws north of the 15th parallel.
242. Honduras also contends that the practice of third Parties confirm “the existence of a tacitly agreed boundary” along the 15th parallel. Hon-duras presented evidence of third State recognition of its claims, stressing that many such acts of recognition support both its claim to sovereignty over the islands and its maritime claim. For example, it refers to the request by Jamaica in 1977 to access Honduran waters to rescue 12 Jamaican nationals who were shipwrecked in Savanna Cay and the formal request by Argentina in 1975 for one of its aircraft to overfly Honduras by a route of 15° 17′ N 82° E. Honduras further mentions the Gazetteer of Geographic Features prepared by the United States National Imagery and Mapping Agency in October 2000, which identifies the northernmost insular feature attributed to Nicaragua at 14° 59′ N. Honduras argues that the practice of international organizations, such as the Food and Agriculture Organization (FAO), the United Nations Development Programme (UNDP) and the Inter-American Development Bank shows a comparable recognition of the 15th parallel. It also points to the fact that various third States (specifically, Jamaica and the United States) and international organizations, such as the FAO, have considered fish caught in the disputed area as Honduran catches.
243. Honduras also produces sworn statements by a number of fish-ermen attesting to their belief that the 15th parallel represented and con-tinues to represent the maritime boundary.
244. The Court notes, as to that latter category of evidence, that witness statements produced in the form of affidavits should be treated with caution. In assessing such affidavits the Court must take into account a number of factors. These would include whether they were made by State officials or by private persons not interested in the outcome of the pro-ceedings and whether a particular affidavit attests to the existence of facts or represents only an opinion as regards certain events. The Court notes that in some cases evidence which is contemporaneous with the period concerned may be of special value. Affidavits sworn later by a State offi-cial for purposes of litigation as to earlier facts will carry less weight than affidavits sworn at the time when the relevant facts occurred. In other circumstances, where there would have been no reason for private persons to offer testimony earlier, affidavits prepared even for the purposes of litigation will be scrutinized by the Court both to see whether what has been testified to has been influenced by those taking the deposition and for the utility of what is said. Thus, the Court will not find it inappropriate as such to receive affidavits produced for the purposes of a litigation if they attest to personal knowledge of facts by a particular individual. The Court will also take into account a witness’s capacity to attest to certain facts, for example, a statement of a competent governmental official with regard to the boundary lines may have greater weight than sworn statements of a private person.
245. In the current case sworn statements of fishermen produced by Honduras attested to a variety of issues; for example, that Honduran vessels fished north of the 15th parallel and Nicaraguan vessels south of that parallel; that Nicaraguan patrol boats crossed the 15th parallel and captured Honduran fishing boats; others testify as to a general knowledge that the offshore border has always been aligned along the 15th parallel; that licences and permits were issued by Nicaragua south of the 15th parallel and by Honduras to the north of that parallel; that Nica- raguan patrol activity north of the 15th parallel began in the 1980s or even more recently.
Although all the affidavits were made for the purposes of the case, the Court does not put into question their credibility. However, having examined their content the Court finds that none of them can be consid-ered as proof of the existence of a “traditional” maritime boundary along the 15th parallel recognized by Nicaragua and Honduras.
Occasional references in the affidavits to the boundary running along the 15th parallel is of the nature of a personal opinion rather than the knowledge of a fact. In this regard the Court recalls previous dicta of rel-evance to this question:
“The Court has not treated as evidence any part of the testimony given which was not a statement of fact, but a mere expression of opinion as to the probability or otherwise of the existence of such facts, not directly known to the witness. Testimony of this kind, which may be highly subjective, cannot take the place of evidence. An opinion expressed by a witness is a mere personal and subjective evaluation of a possibility, which has yet to be shown to correspond to a fact; it may, in conjunction with other material, assist the Court in determining a question of fact, but is not proof in itself. Nor is testimony of matters not within the direct knowledge of the witness, but known to him only from hearsay, of much weight…” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 42, para. 68.)
246. Honduras also argues that there is a regional practice of using lines of latitude and longitude as maritime boundaries and, specifically, that the 1928, 1986 and 1993 bilateral treaties concluded separately with Colombia, while res inter alios acta between Nicaragua and Honduras, nonetheless confirm the 15th parallel as the maritime boundary between
Honduras and Nicaragua. Honduras suggests that the 1928 Barcenas- Esguerra Treaty between Nicaragua and Colombia set the maritime boundary between them along with 82nd meridian up to the 15th parallel. Honduras also points to the 1986 Treaty on maritime delimitation it concluded with Colombia, which, although setting the boundary along 14° 59′ 08″ N rather than 14° 59.08′ N (owing to “an error in translation”), constitutes “recognition by Colombia that the maritime area to the north of the 15th parallel forms part of Honduras . . .”. Honduras asserts that the 1993 Treaty between Colombia and Jamaica, delimiting a joint economic regime area abutting a different part of the line established by the 1986 Treaty between Colombia and Honduras, is further evidence that the line claimed to be established by the 1986 Treaty is receiving wider and more general international recognition.
247. Nicaragua denies that it ever accepted or recognized the 15th par-allel as the maritime boundary with Honduras. It argues that the existence of what Honduras calls a “traditional” maritime boundary is belied by the fact that Nicaragua occupied Honduran territory north of the 15th parallel until this Court in 1960 affirmed the validity and binding character of the King of Spain’s 1906 Award. Nicaragua maintains that the oil concession practice similarly fails to show a settled boundary since Nicaragua actually reserved its position as to the boundary by specifying in the contracts that the northern limit would be “the border line with the Republic of Honduras [which has not been determined]”. With regard to the alleged inference of a northern boundary at the 15th parallel from the specification in these agreements of an area in hectares that corresponded with a northern limit at the 15th parallel, Nicaragua responds that some concessions (for example, Union Oil) also included language specifying that they covered the “conventional area” and that the concessions would be revised and modified “following the date when the borderline is determined”.
248. Nicaragua further maintains that the fact that the Coco Marina project required a joint venture arrangement between Union Oil Company of Honduras and Union Oil Company of Central America (Nicaragua), and could not be carried out by one or the other of the companies alone, indicates that there was no agreement over the boundary. If an agreement had been in effect, there would have been no need for multinational co-operation since the project could have been handled wholly by the company operating in the country with rights in the Coco Marina area. According to Nicaragua, this was at best an agreement between two Union Oil subsidiaries (to be administered, in fact, from Nicaragua), rather than between the Governments of Nicaragua and Honduras, and thus carries little if any evidentiary weight.
249. As to the third party practice proffered by Honduras to show general recognition of a boundary at the 15th parallel, Nicaragua argues that this is self-serving and of doubtful relevance or credibility. The FAO report cited by Honduras contains a disclaimer to the effect that the report is not meant to express any opinion about maritime delimitation or boundaries. Nicaragua further contends that its negotiations with Jamaica concerning the delimitation of a maritime boundary north of the 15th parallel undermine the argument that Jamaica recognized this parallel as Nicaragua’s northern maritime limit. Nicaragua also asserts that it was involved in an armed conflict with, inter alia, Honduras and the United States after the 1979 Sandinista revolution and that the attitude of the United States in this matter should thus be discounted.
250. Finally Nicaragua contends that Honduras only began taking an interest in areas north of the 15th parallel in 1982, when Honduran forces initiated a series of attacks on “Nicaraguan positions in the area in dispute”. It also refers to a series of diplomatic correspondence in which Nicaragua protested the incursion by Honduras into Nicaraguan waters.
251. As regards the treaties cited by Honduras as evidence of an inter-nationally recognized traditional line, Nicaragua draws attention to the fact that it is challenging the validity and interpretation of its 1928 Treaty with Colombia in a separate case pending before this Court. Nicaragua argues that, if anything, this Treaty concerned the attribution of sovereignty over various small islands (in particular the Archipelago of San Andres and Providencia) near the 82nd meridian and that in neither letter nor spirit did the Treaty delimit a maritime boundary. The Treaty moreover could not have set a maritime boundary along the 15th parallel more than 80 miles from their shores in 1928, when maritime boundaries so far out at sea were not accepted under international law. Nicaragua also challenges the legal relevance in this regard of the 1986 Treaty between Colombia and Honduras on maritime delimitation. Nicaragua maintains that it has protested against this Treaty repeatedly since it was concluded and taken steps to challenge its legality (see paragraphs 69-70 above). With regard to the 1993 Treaty between Colombia and Jamaica on maritime delimitation, Nicaragua states that it “is concerned with insular territories and maritime areas which are part of the case between Nicaragua and Colombia before this Court”. According to Nicaragua, this treaty “has no relevance for the present proceedings” as the maritime boundary with Honduras proposed by Nicaragua does not affect any right “to maritime zones Jamaica may have to the north of the maritime boundary Jamaica agreed with Colombia in 1993”.
252. Nicaragua also argues that Honduras understood that no legal delimitation had been effected between the two countries. Nicaragua points in particular to an incident in 1982 arising from the capture by the Nicaraguan coastguard of four Honduran vessels fishing approximately
16 miles north of the 15th parallel in the vicinity of Bobel Cay and Media Luna Cay. This incident resulted in a diplomatic exchange in which a Note dated 23 March 1982 from the Honduran Foreign Ministry identified the 15th parallel as a delimitation line “traditionally recognised by both countries” and thus protested against what it saw as a “flagrant violation of [Honduran] sovereignty”. The reply by the Foreign Minister of Nicaragua, dated 14 April 1982, rejected the 15th parallel as the boundary line and asserted that “[a]t no time has Nicaragua recognised it as such since that would imply an attempt against the territorial integrity and national sovereignty of Nicaragua”. The Honduran Foreign Minister responded to this by way of a Note of 3 May 1982 in which he reasserted that there was a “traditionally accepted line”, but
“agree[d] . . . that the maritime border between Honduras and Nica-ragua [had] not been legally delimited” (“Coincido . . . que la frontera maritima entre Honduras y Nicaragua no ha sido juridica- mente delimitada”) [original Spanish; translation into English provided by the Parties]).
He further proposed “[t]he temporary establishment of a line or zone . . . which, without prejudice to the rights that the two States might claim in the future, could serve as momentary indicator of their respective areas of jurisdiction”. Nicaragua thus concludes that, whatever else the 15th parallel may have represented historically and in State practice, it was not regarded by either of the Parties as having actual legal value. According to Nicaragua, from the Somoza Government which ended in 1979 until the current Government of Mr. Ortega, the official position of all successive Nicaraguan administrations has been that no line of delimitation in the Caribbean Sea has existed between Nicaragua and Honduras.
253. The Court has already indicated that there was no boundary established by reference to uti possidetis juris (see paragraph 236 above). The Court must now determine whether there was a tacit agreement suf-ficient to establish a boundary. Evidence of a tacit legal agreement must be compelling. The establishment of a permanent maritime boundary is a matter of grave importance and agreement is not easily to be presumed. A de facto line might in certain circumstances correspond to the existence of an agreed legal boundary or might be more in the nature of a provisional line or of a line for a specific, limited purpose, such as sharing a scarce resource. Even if there had been a provisional line found convenient for a period of time, this is to be distinguished from an international boundary.
254. As regards the evidence of oil concessions proffered by Honduras, the Court considers that Nicaragua, by leaving open the northern limit to its concessions or by abstaining from mentioning the boundary with Honduras in that connection, reserved its position concerning its maritime boundary with Honduras. As the Court has pointed out with respect to oil concession limits:
“These limits may have been simply the manifestation of the cau-tion exercised by the Parties in granting their concessions. This caution was all the more natural in the present case because negotiations were to commence soon afterwards between Indonesia and Malaysia with a view to delimiting the continental shelf.” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 664, para. 79.)
Moreover, the Court observes that the Nicaraguan concessions provi-sionally extending up to the 15th parallel were all given after Honduras had granted its concessions extending southwards to the 15th parallel.
255. The Court recalls that Nicaragua has maintained its persistent objections to the 1986 Treaty between Colombia and Honduras and the 1993 Treaty between Colombia and Jamaica. In the 1986 Treaty the par-allel 14° 59′ 08″ (see paragraph 246 above) to the east of the 82nd merid-ian serves as the boundary line between Honduras and Colombia. As already mentioned, according to Honduras the 1993 Treaty proceeds from a recognition of the validity of the 1986 Treaty between Colombia and Honduras, thereby recognizing Honduran jurisdiction over the waters and islands to the north of the 15th parallel (see paragraphs 222 and 246 above).
256. The Court has noted that at periods in time, as the evidence shows, the 15th parallel appears to have had some relevance in the conduct of the Parties. This evidence relates to the period after 1961 when Nicaragua left areas to the north of Cape Gracias a Dios following the rendering of the Court’s Judgment on the validity of the 1906 Arbitral Award and until 1977 when Nicaragua proposed negotiations with Honduras with the purpose of delimiting maritime areas in the Caribbean Sea. The Court observes that during this period several oil concessions were granted by the Parties which indicated that their northern and southern limits lay respectively at 14° 59.8′. Furthermore, regulation of fishing in the area at times seemed to suggest an understanding that the 15th parallel divided the respective fishing areas of the two States; and in addition the 15th parallel was also perceived by some fishermen as a line dividing maritime areas under the jurisdiction of Nicaragua and Honduras. However, these events, spanning a short period of time, are not sufficient for the Court to conclude that there was a legally established international maritime boundary between the two States.
257. The Court observes that the Note of the Honduran Minister for Foreign Affairs dated 3 May 1982 (see paragraph 56 above) is somewhat uncertain regarding the existence of an acknowledged boundary along
the 15th parallel. Although Honduras had agreed in an exchange of Notes in 1977 to initiate “the preliminary stages of the conversation” about “the definitive marine and sub-marine delimitation in the Caribbean Sea zone”, the dispute may be said to have “crystallized” through the various incidents leading to the above-mentioned Note of 3 May 1982. In that Note, the Foreign Minister of Honduras concurred with the Nica- raguan Foreign Ministry that “the maritime border between Honduras and Nicaragua has not been legally delimited” and proposed that the Parties at least come to a “temporary” arrangement about the boundary so as to avoid further boundary incidents. The acknowledgment that there was then no legal delimitation “was not a proposal or a concession made during negotiations, but a statement of facts transmitted to the Foreign [Ministry, which] did not express any reservation in respect thereof” and should thus be taken “as evidence of the [Honduran] official view at that time” (Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, p. 71).
258. Having reviewed all of this practice including the diplomatic exchanges referred to in paragraphs 252 and 257, the Court concludes that there was no tacit agreement in effect between the Parties in 1982 — nor a fortiori at any subsequent date — of a nature to establish a legally binding maritime boundary.
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8.2. Determination of the Maritime Boundary
259. The Court, having found that there is no traditional boundary line along the 15th parallel, proceeds now to the maritime delimitation between Nicaragua and Honduras.
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260. In its final submissions, Nicaragua requests the Court to adjudge and declare that:
“The bisector of the lines representing the coastal fronts of the two Parties as described in the pleadings, drawn from a fixed point approximately 3 miles from the river mouth in the position 15°02’00” N and 83°05’26” W, constitutes the single maritime boundary for the purposes of the delimitation of the disputed areas of the territorial sea, exclusive economic zone and continental shelf in the region of the Nicaraguan Rise” ;
and that:
“The starting-point of the delimitation is the thalweg of the main mouth of the River Coco such as it may be at any given moment as determined by the Award of the King of Spain of 1906.”
The second and third final submissions of Honduras request the Court to adjudge and declare that:
“2. The starting-point of the maritime boundary to be delimited by the Court shall be a point located at 14° 59.8′ N latitude, 83° 05.8′ W longitude. The boundary from the point determined by the Mixed Commission in 1962 at 14° 59.8′ N latitude, 83° 08.9’W longitude to the starting-point of the maritime boundary to be delimited by the Court shall be agreed between the Parties to this case on the basis of the Award of the King of Spain of 23 December 1906, which is binding upon the Parties, and taking into account the changing geographical characteristics of the mouth of the River Coco (also known as the River Segovia or Wanks).
3. East of the point at 14° 59.8′ N latitude, 83° 05.8′ W longitude, the single maritime boundary which divides the respective territorial seas, exclusive economic zones and continental shelves of Honduras and Nicaragua follows 14° 59.8′ N latitude, as the existing maritime boundary, or an adjusted equidistance line, until the jurisdiction of a third State is reached.”
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8.2.1. Applicable law
261. Both Parties in their final submissions asked the Court to draw a “single maritime boundary” delimiting their respective territorial seas, exclusive economic zones, and continental shelves in the disputed area. Although Nicaragua was not party to UNCLOS at the time it filed the Application in this case, the Parties are in agreement that UNCLOS is now in force between them and that its relevant articles are applicable between them in this dispute (UNCLOS entered into force on 16 November 1994; Nicaragua ratified it on 3 May 2000 and Honduras on 5 October 1993).
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8.2.2. Areas to be delimited and methodology
262. The “single maritime boundary” in this case will be the result of the delimitation of the various areas of jurisdiction spanning the maritime zone from the Nicaragua-Honduras mainland out to at least the 82nd meridian, where third-State interests may become relevant. In the western reaches of the area to be delimited the Parties’ mainland coasts are adjacent; thus, for some distance the boundary will delimit exclusively their territorial seas (UNCLOS, Art. 2, para. 1). Both Parties also accept that the four islands in dispute north of the 15th parallel (Bobel
Cay, Savanna Cay, Port Royal Cay and South Cay), which have been attributed to Honduras (see paragraph 227 above), as well as Nicaragua’s Edinburgh Cay south of the 15th parallel, are entitled to generate their own territorial seas for the coastal State. The Court recalls that as regards the islands in dispute no claim has been made by either Party for maritime areas other than the territorial sea.
263. As to the breadth of the territorial sea around the four disputed islands, Nicaragua, in response to a question put by Judge Keith, stated that if Bobel Cay, Savanna Cay, Port Royal Cay and South Cay “were to be attributed to Honduras and were thus to be located within Nicara- guan territory”, then the position of Nicaragua would be that those islands “should be enclaved within a territorial sea of 3 miles”. Honduras, for its part, contended that, as the breadth of the territorial sea of both Parties is 12 nautical miles, there is “no justification … for employing a different standard with regard to the islands”.
264. The Court notes that, while the Parties disagree as to the appro-priate breadth of these islands’ territorial seas, according to Article 3 of UNCLOS, a State’s territorial sea cannot extend beyond 12 nautical miles. These islands are all indisputably located within 24 miles of each other but more than 24 miles from the mainland that lies to the west. Thus the single maritime boundary might also include segments delimiting overlapping areas of the islands’ opposite-facing territorial seas as well as segments delimiting the continental shelf and exclusive economic zones around them.
265. As regards the general task and methodology of drawing a single maritime boundary to delimit these various maritime zones, the Court observed in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) that:
“the concept of a single maritime boundary does not stem from mul-tilateral treaty law but from State practice, and that it finds its expla-nation in the wish of States to establish one uninterrupted boundary line delimiting the various — partially coincident — zones of maritime jurisdiction appertaining to them. In the case of coincident jurisdictional zones, the determination of a single boundary for the different objects of delimitation
‘can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treat-ment to one of these . . . objects to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them’,
as was stated by the Chamber of the Court in the Gulf of Maine case (Judgment, I.C.J. Reports 1984, p. 327, para. 194). In that case, the Chamber was asked to draw a single line which
would delimit both the continental shelf and the superjacent water column.
Delimitation of territorial seas does not present comparable prob-lems, since the rights of the coastal State in the area concerned are not functional but territorial, and entail sovereignty over the sea-bed and the superjacent waters and air column. Therefore, when carrying out that part of its task, the Court has to apply first and foremost the principles and rules of international customary law which refer to the delimitation of the territorial sea, while taking into account that its ultimate task is to draw a single maritime boundary that serves other purposes as well.” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 93, paras. 173-174.)
266. The Court considers these observations pertinent for the present case as well.
267. For the delimitation of the territorial seas, Article 15 of UNCLOS, which is binding as a treaty between the Parties, provides:
“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 territorial sea beyond the median line every point of which is equidistant from the nearest point 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 historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”
As already indicated, the Court has determined that there is no existing “historic” or traditional line along the 15th parallel.
268. As this Court has observed with respect to implementing the pro-visions of Article 15 of UNCLOS:
“The most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circum-stances.” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 94, para. 176.)
269. The methods governing territorial sea delimitations have needed to be, and are, more clearly articulated in international law than those used for the other, more functional maritime areas. Article 15 of UNCLOS, like Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone before it, refers specifically and expressly to the equidistance/special circumstances approach for delimiting the territorial sea. The Court noted in the cases concerning North Sea Continental Shelf, that
“the distorting effects of lateral equidistance lines under certain con-ditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out” (Judgment, I.C.J. Reports 1969, p. 37, para. 59).
270. For the exclusive economic zone and the continental shelf, Articles 74, paragraph 1, and 83, paragraph 1, of UNCLOS provide that they are to be delimited by “agreement on the basis of international law” to “achieve an equitable solution”.
271. As to the plotting of a single maritime boundary the Court has on various occasions made it clear that, when a line covering several zones of coincident jurisdictions is to be determined, the so-called equitable principles/relevant circumstances method may usefully be applied, as in these maritime zones this method is also suited to achieving an equitable result:
“This method, which is very similar to the equidistance/special cir-cumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result’.” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288.)
272. The jurisprudence of the Court sets out the reasons why the equi- distance method is widely used in the practice of maritime delimitation: it has a certain intrinsic value because of its scientific character and the relative ease with which it can be applied. However, the equidistance method does not automatically have priority over other methods of delimitation and, in particular circumstances, there may be factors which make the application of the equidistance method inappropriate.
273. Nicaragua contends that the current case is not one in which the equidistance/special circumstances approach would be appropriate for the delimitation to be effected. Nicaragua asserts that the instability of the mouth of the River Coco at the Nicaragua-Honduras land boundary terminus, combined with the small and uncertain nature of the offshore islands and cays north and south of the 15th parallel, would make fixing base points and using them to construct a provisional equidistance line unduly problematic. Nicaragua urges the Court instead to account for the coastal geography by constructing the entire single maritime boundary from “the bisector of two lines representing the entire coastal front of both states”, which would run as a line of constant bearing 52° 45′ 21″.
274. Honduras’s principal argument with respect to the delimitation is that there was a tacit agreement on the 15th parallel as the single maritime boundary. Honduras has acknowledged that “geometrical methods of delimitation, such as perpendiculars and bisectors, are methods that may produce equitable delimitations in some circumstances”. As regards equidistance, Honduras agrees that the mouth of the River Coco “shifts considerably, even from year to year”, making it “necessary to adopt a technique so that the maritime boundary need not change as the mouth of the river changes”. Honduras asserts, moreover, that the 15th parallel accurately reflects the eastward facing coastal fronts of the two countries such that it represents “both an adjustment and simplification of the equidistance line”.
275. Thus neither Party has as its main argument a call for a provisional equidistance line as the most suitable method of delimitation.
276. Honduras initially referred to its version of a provisional equidis- tance line constructed by using the islands as base points in its Rejoinder. At the end of its oral argument, Honduras presented a provisional equi- distance line (azimuth 78° 48′) constructed from one pair of base points fixed at the low-water line of the apparent easternmost endpoint of the mainland Honduran and Nicaraguan coasts at Cape Gracias a Dios, as identified from a recent satellite photograph. Honduras did not use the islands north and south of the 15th parallel as base points for constructing this line but did adjust the line both to allow a full 12-mile territorial sea for these islands where possible and to follow a median line where their opposite-facing territorial seas overlap (mostly to the south of the 15th parallel) (see also paragraph 285 below).
277. The Court observes at the outset that both Parties have raised a number of geographical and legal considerations with regard to the method to be followed by the Court for the maritime delimitation. Cape Gracias a Dios, where the Nicaragua-Honduras land boundary ends, is a sharply convex territorial projection abutting a concave coastline on either side to the north and south-west. Taking into account Article 15 of UNCLOS and given the geographical configuration described above, the pair of base points to be identified on either bank of the River Coco at the tip of the Cape would assume a considerable dominance in constructing an equidistance line, especially as it travels out from the coast. Given the close proximity of these base points to each other, any variation or error in situating them would become disproportionately magnified in the resulting equidistance line. The Parties agree, moreover, that the sediment carried to and deposited at sea by the River Coco have caused its delta, as well as the coastline to the north and south of the Cape, to exhibit a very active morpho-dynamism. Thus continued accretion at the Cape might render any equidistance line so constructed today arbitrary and unreasonable in the near future.
278. These geographical and geological difficulties are further exacer-bated by the absence of viable base points claimed or accepted by the Parties themselves at Cape Gracias a Dios. In accordance with Article 16 of UNCLOS, Honduras has deposited with the Secretary-General of the United Nations a list of geographical co-ordinates for its baselines for measuring the breadth of its territorial sea (see Honduran Executive Decree No. PCM 007-2000 of 21 March 2000 (published in the Law of the Sea Bulletin, No. 43; also available at http://www.un.org/Depts/los/ doalos_publications/LOSBulletins/bulletinpdf/bulletinE43.pdf)). The Hon-duran Executive Decree identifies one of the points used for its territorial sea baselines, “Point 17”, as having co-ordinates 14° 59.8’N and 83° 08.9’W. These are the exact co-ordinates the Mixed Commission identified in 1962 as being the thalweg of the River Coco at the mouth of its main branch. This point, even if it can be said to appertain to Honduras, is no longer in the mouth of the River Coco and cannot be properly used as a base point (see UNCLOS, Art. 5.) Nicaragua has not yet deposited the geographical co-ordinates of its base points and baselines.
279. This difficulty in identifying reliable base points is compounded by the differences, addressed more fully, infra, that apparently still remain between the Parties as to the interpretation and application of the King of Spain’s 1906 Arbitral Award in respect of sovereignty over the islets formed near the mouth of the River Coco and the establishment of “[t]he extreme common boundary point on the coast of the Atlantic” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, p. 202). The Court notes that in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), the “main reason” for the Chamber’s objections to using equidistance in the first segment of the delimitation was that the Special Agreement’s choice of Point A as the beginning of the line deprived the Court of an equidis- tance point, “derived from two basepoints of which one is in the unchallenged possession of the United States and the other in that of Canada” (Judgment, I.C.J. Reports 1984, p. 332, para. 211).
280. Given the set of circumstances in the current case it is impossible for the Court to identify base points and construct a provisional equidis- tance line for the single maritime boundary delimiting maritime areas off the Parties’ mainland coasts. Even if the particular features already indi-cated make it impossible to draw an equidistance line as the single mari-time frontier, the Court must nonetheless see if it would be possible to start the frontier line across the territorial seas as an equidistance line, as envisaged in Article 15 of UNCLOS. It may be argued that the problems associated with distortion, if the protrusions either side of Cape Gra- cias a Dios were used as base points, are less severe close to the coast (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, pp. 17-18).
However, the Court notes first that the Parties are in disagreement as to title over the unstable islands having formed in the mouth of the River Coco, islands which the Parties suggested during the oral proceedings could be used as base points. It is recalled that because of the changing conditions of the area the Court has made no finding as to sovereignty over these islands (see paragraph 145 above). Moreover, whatever base points would be used for the drawing of an equidistance line, the configuration and unstable nature of the relevant coasts, including the disputed islands formed in the mouth of the River Coco, would make these base points (whether at Cape Gracias a Dios or elsewhere) uncertain within a short period of time.
Article 15 of UNCLOS itself envisages an exception to the drawing of a median line, namely “where it is necessary by reason of historic title or special circumstances. . .”. Nothing in the wording of Article 15 suggests that geomorphological problems are per se precluded from being “special circumstances” within the meaning of the exception, nor that such “special circumstances” may only be used as a corrective element to a line already drawn. Indeed, the latter suggestion is plainly inconsistent with the wording of the exception described in Article 15. It is recalled that Article 15 of UNCLOS, which was adopted without any discussion as to the method of delimitation of the territorial sea, is virtually identical (save for minor editorial changes) to the text of Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone.
The genesis of the text of Article 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone shows that it was indeed envisaged that a special configuration of the coast might require a different method of delimitation (see Yearbook of the International Law Commission (YILC), 1952, Vol. II, p. 38, commentary, para. 4). Furthermore, the consideration of this matter in 1956 does not indicate otherwise. The terms of the exception to the general rule remained the same (YILC, 1956, Vol. I, p. 284; Vol. II, pp. 271, 272, and p. 300 where the Commentary to the draft Articles dealing with the continental shelf noted that “as in the case of the boundaries of the territorial sea, provision must be made for departures necessitated by any exceptional configuration of the coast. . .”). Additionally, the jurisprudence of the Court does not reveal an interpretation that is at variance with the ordinary meaning of the terms of Article 15 of UNCLOS. This matter has not previously been directly in issue. The Court notes however that on occasion the median line in delimiting the territorial sea has not been used, either for very par-
ticular reasons (see Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 85, para. 121, where the Court worked backwards from a line of convergence of the concessions granted by each Party and reflected this in a line drawn from a defined point offshore to the endpoint of the land frontier) or because of the adverse effect of coastal configurations (see Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, International Law Reports, Vol. 77, p. 682, para. 104. [English translation of French original]).
281. For all of the above reasons, the Court finds itself within the exception provided for in Article 15 of UNCLOS, namely facing special circumstances in which it cannot apply the equidistance principle. At the same time equidistance remains the general rule.
282. The Court observes that in this case the Parties have each envis-aged methods for delimiting the territorial sea other than the drawing of an equidistance line.
* *
8.2.3. Construction of a bisector line
283. Having reached the conclusion that the construction of an equi- distance line from the mainland is not feasible, the Court must consider the applicability of the alternative methods put forward by the Parties.
284. Nicaragua’s primary argument is that a “bisector of two lines representing the entire coastal front of both States” should be used to effect the delimitation from the mainland, while sovereignty over the maritime features in the area in dispute “could be attributed to either Party depending on the position of the feature involved with respect to the bisector line”.
285. Honduras “does not deny that geometrical methods of delimita-tion, such as perpendiculars and bisectors, are methods that may produce equitable delimitations in some circumstances”, but it disagrees with Nicaragua’s construction of the angle to be bisected. Honduras, as already explained, advocates a line along the 15th parallel, no adjustment of which would be necessary in relation to the islands. In the Rejoinder, Honduras, in order to demonstrate the equitable character of its proposed boundary along the 15th parallel, refers to a provisional equidistance line constructed by using islands to the north and south of the 15th parallel as base points. In addition, during the oral proceedings, Honduras referred to a provisional equidistance line drawn from a single pair of purported mainland base points without using any of the islands as base points. The islands would be dealt with separately by overlaying on this equidistance line the 12-mile ter-ritorial seas of the islands north and south of the 15th parallel. Honduras also argues with respect to this alternative that where the islands’ territorial seas overlap an equidistance line should be drawn between them.
286. The Court notes that in Honduras’s final submissions it requested the Court to declare that the single maritime boundary between Honduras and Nicaragua “follows 14° 59.8′ N latitude, as the existing maritime boundary, or an adjusted equidistance line, until the jurisdiction of a third State is reached”. During the oral proceedings, Honduras explained that, “if the Court rejects its submission — that the 15th parallel is the existing maritime boundary between Honduras and Nicaragua — then an adjusted equidistance line provides the basis for an alternative boundary”. The Court recalls that both of Honduras’s proposals (the main one based on tacit agreement as to the 15th parallel representing the maritime frontier and the other on the use of an adjusted equidistance line) have not been accepted by the Court.
287. Thus the Court will consider whether in principle some form of bisector of the angle created by lines representing the relevant mainland coasts could be a basis for the delimitation. The Court will then consider the impact of the territorial seas of the islands. The use of a bisector — the line formed by bisecting the angle created by the linear approximations of coastlines — has proved to be a viable substitute method in certain circumstances where equidistance is not possible or appropriate. The justification for the application of the bisector method in maritime delimi-tation lies in the configuration of and relationship between the relevant coastal fronts and the maritime areas to be delimited. In instances where, as in the present case, any base points that could be determined by the Court are inherently unstable, the bisector method may be seen as an approximation of the equidistance method. Like equidistance, the bisector method is a geometrical approach that can be used to give legal effect to the
“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 maritime projections of the coasts of the States . . . converge and overlap” (Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 327, para. 195).
288. This was the situation in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), where equidistance could not be used for the second segment of the delimitation because the segment was to begin at a point not on any possible equidistance line. The Court there used a bisector to approximate the northerly change in direction of the Tunisian coast beginning in the Gulf of Gabes (I.C.J. Reports 1982, p. 94, para. 133 C (3)). The Chamber of the Court in the Gulf of Maine
case also used a bisector of the Gulf-facing mainland because it deemed the small islands in the Gulf unsuitable for use as base points and because the first segment of the delimitation was to begin at “Point A”, which was also off any equidistance line. The Arbitral Tribunal in the 1985 Delimi-tation of the Maritime Boundary between Guinea and Guinea-Bissau case drew a perpendicular (the bisector of a 180° angle) to a line drawn from Almadies Point (Senegal) to Cape Shilling (Sierra Leone) to approximate the general direction of the coast of “the whole of West Africa”. The Tri-bunal considered this approach, rather than equidistance, necessary in order to effect an equitable delimitation that had to be “integrated into the present or future delimitations of the region as a whole” (International Law Reports, Vol. 77, pp. 683-684, para. 108).
289. If it is to “be faithful to the actual geographical situation” (Con-tinental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 45, para. 57), the method of delimitation should seek a solution by reference first to the States’ “relevant coasts” (see Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, I.C.J. Reports 2001, p. 94 para. 178; see also the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), I.C.J. Reports 2002, p. 442, para. 90)). Identifying the relevant coastal geography calls for the exercise of judgment in assessing the actual coastal geography. The equidistance method approximates the relationship between two Parties’ relevant coasts by taking account of the relationships between designated pairs of base points. The bisector method comparably seeks to approximate the relevant coastal relationships, but does so on the basis of the macro-geography of a coastline as represented by a line drawn between two points on the coast. Thus, where the bisector method is to be applied, care must be taken to avoid “completely refashioning nature” (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 49, para. 91).
290. In light of the foregoing, the Court notes that Nicaragua advanced a variety of reasons to justify the bisector method (see paragraphs 83-84 and 102 above). According to Nicaragua, the equitable character of the bisector method is confirmed by the independent criteria of an equitable result: (a) the method produces an effective reflection of the coastal rela-tionships; (b) the bisector produces a result which constitutes an expression of the principle of equal division of the areas in dispute; (c) the bisector method has the virtue of compliance with the principle of non- encroachment; (d) it also prevents, as far as possible, any cut-off of the seaward projection of the coast of either of the States concerned; and (e) the bisector method ensures “the exercise of the right to development of the Parties”.
291. To demonstrate the equitable character of its own proposed bisector line Nicaragua also refers to a number of relevant circumstances and argues that the bisector method produces an equitable result in terms of the incidence of natural resources; satisfies the criterion of equitable access to the natural resources; respects the unitary character of the Nicaraguan Rise as a single geological and geomorphological feature by dividing it in approximately equal halves; in terms of security considera-tions produces an alignment which effectively ensures “that each State controls the maritime territories situated opposite to its coasts and in their vicinity” and ensures equitable access to the main navigable channel in the adjacent coastal areas.
292. The Court is not persuaded in the present case as to the pertinence of these factors and does not find them legally determinative for the purposes of the delimitation to be effected. Rather, the key elements are the geographical configuration of the coast, and the geomorphologi- cal features of the area where the endpoint of the land boundary is located.
293. The Parties have presented the Court with their differing versions of the relevant mainland coast for the purposes of the delimitation to be effected. Nicaragua argues that the relevant coast of each Party is its entire Caribbean coast: thus in the case of Honduras this would be a line running from Cape Gracias a Dios north and west to its land border with Guatemala, while in the case of Nicaragua it would run from the Cape south to its land border with Costa Rica. Nicaragua has also acknowledged that other coastal fronts might be considered, variously suggesting relevant coastal fronts for Honduras extending to Cape Cameron or Cape Falso, and for Nicaragua to Punta de Perlas or Punta Gorda, respectively. Honduras sees the relevant coastal front as running from Cape Falso in the north, south-easterly to Cape Gracias a Dios, and then south-westerly to Laguna Wano in a configuration that focuses exclusively on the nearly symmetrical projection of Cape Gracias a Dios.
294. The Court considers for present purposes that it will be most con-venient to use the point fixed in 1962 by the Mixed Commission at Cape Gracias a Dios as the point where the Parties’ coastal fronts meet. The Court adds that the co-ordinates of the endpoints of the chosen coastal fronts need not at this juncture be specified with exactitude for present purposes; one of the practical advantages of the bisector method is that a minor deviation in the exact position of endpoints, which are at a reasonable distance from the shared point, will have only a relatively minor influence on the course of the entire coastal front line. If necessary in the circumstances, the Court could adjust the line so as to achieve an equitable result (see UNCLOS, Arts. 74, para. 1, and 83, para. 1).
295. The Court will now consider the various possibilities for the other coastal fronts that could be used to define these linear approximations of
the relevant geography. Nicaragua’s primary proposal for the coastal fronts, as running from Cape Gracias a Dios to the Guatemalan border for Honduras and to the Costa Rican border for Nicaragua, would cut off a significant portion of Honduran territory falling north of this line and thus would give significant weight to Honduran territory that is far removed from the area to be delimited. This would seem to present an exaggeratedly acute angle to bisect.
296. In selecting the relevant coastal fronts, the Court has considered the Cape Falso-Punta Gorda coast (generating a bisector with an azimuth of 70° 54′), which certainly faces the disputed area, but it is quite a short facade (some 100 kilometres) from which to reflect a coastal front more than 100 nautical miles out to sea, especially taking into account how quickly to the northwest the Honduran coast turns away from the area to be delimited after Cape Falso, as it continues past Punta Patuca and up to Cape Cameron. Indeed, Cape Falso is identified by Honduras as the most relevant “turn” in the mainland coastline.
297. A coastal front extending from Cape Cameron to Rio Grande (generating a bisector with an azimuth of 64° 02′) would, like the original Nicaraguan proposal, also overcompensate in this regard since the line would run entirely over the Honduran mainland and thus would deprive the significant Honduran land mass lying between the sea and the line of any effect on the delimitation.
298. The front that extends from Punta Patuca to Wouhnta, would avoid the problem of cutting off Honduran territory and at the same time provide a coastal facade of sufficient length to account properly for the coastal configuration in the disputed area. Thus, a Honduran coastal front running to Punta Patuca and a Nicaraguan coastal front running to Wouhnta are in the Court’s view the relevant coasts for purposes of drawing the bisector. This resulting bisector line has an azimuth of 70° 14′ 41.25″ (for the construction of the bisector line, see below, p. 750, sketch-map No. 3).
* *
8.2.4. Delimitation around the islands
299. The Court, having settled on the appropriate method and pro-cedures for the delimitation from the mainland, can now turn to the sepa-rate task of delimiting the waters around and between islands north and south of the 15th parallel. Thus the Court leaves behind it the delimitation line based on the relevant mainland coast and turns to maritime delimitation between opposite-facing islands. As the Court has noted above, the Parties agree that the four islands in dispute north of the 15th parallel, as well as Edinburgh Cay south of the 15th parallel, generate territorial seas. It thus may be necessary for the Court to take account of equidistance and the principles of territorial sea delimitation for this portion of the area in dispute as well. The Court must consider the different solutions proposed by the Parties for delimiting this area in the light of the findings above (i) that the four islands in dispute belong to Honduras and (ii) that there was no traditional line running along the 15th parallel based on uti possidetis juris nor any tacit agreement according to which the 15th parallel constituted the maritime boundary.
300. Honduras argues that these islands should be recognized as having a full 12-mile territorial sea, except where this would overlap with the territorial sea of the other Party. Nicaragua does not dispute that these islands could generate a territorial sea of up to 12 nautical miles but argues that, were they to be “attributed to Honduras and were thus to be located within Nicaraguan territory”, their “size” and “instability” would act as “equitable criteria” justifying their being enclaved within only a 3-mile territorial sea because, as stated in response to a question put by Judge Simma in the course of the oral proceedings regarding the reasons for the indication of a reduced territorial sea, a “full 12-mile territorial sea . . . would result in giving a disproportionate amount of the maritime areas in dispute to Honduras”.
301. The Court observes that the consequence of this latter proposal is that there would be no overlapping territorial seas to delimit in this area. Thus it must determine the breadth of the territorial sea to be attributed to these islands so as to have a clear appreciation of its delimitation task in this area.
302. The Court notes that by virtue of Article 3 of UNCLOS Honduras has the right to establish the breadth of its territorial sea up to a limit of 12 nautical miles be that for its mainland or for islands under its sovereignty. In the current proceedings Honduras claims for the four islands in question a territorial sea of 12 nautical miles. The Court thus finds that, subject to any overlap between the territorial sea around Hon- duran islands and the territorial sea around Nicaraguan islands in the vicinity, Bobel Cay, Savanna Cay, Port Royal Cay and South Cay shall be accorded a territorial sea of 12 nautical miles.
303. As a 12-mile breadth of territorial sea has been accorded to these islands, it becomes apparent that the territorial seas attributed to the islands of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua) would lead to an overlap in the territorial sea of Nicaragua and Honduras in this area, both to the south and to the north of the 15th parallel. Here again, the Court would repeat its observation as to method that:
“The most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circum-stances.” (Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J.
Reports 2001, p. 94, para. 176.)
304. Drawing a provisional equidistance line for this territorial sea delimitation between the opposite-facing islands does not present the problems that would an equidistance line from the mainland. The Parties have provided the Court with co-ordinates for the four islands in dispute north of the 15th parallel and for Edinburgh Cay to the south. Delimitation of this relatively small area can be satisfactorily accomplished by drawing a provisional equidistance line, using co-ordinates for the above islands as the base points for their territorial seas, in the overlapping areas between the territorial seas of Bobel Cay, Port Royal Cay and South Cay (Honduras), and the territorial sea of Edinburgh Cay (Nicaragua), respectively. The territorial sea of Savanna Cay (Honduras) does not overlap with the territorial sea of Edinburgh Cay. The Court does not consider there to be any legally relevant “special circumstances” in this area that would warrant adjusting this provisional line.
305. The maritime boundary between Nicaragua and Honduras in the vicinity of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay (Hon-duras) and Edinburgh Cay (Nicaragua) will thus follow the line as described below.
From the intersection of the bisector line with the 12-mile arc of the territorial sea of Bobel Cay at point A (with co-ordinates 15° 05′ 25″ N and 82° 52′ 54″ W) the boundary line follows the 12-mile arc of the territorial sea of Bobel Cay in a southerly direction until its intersection with the 12-mile arc of the territorial sea of Edinburgh Cay at point B (with co-ordinates 14°57′ 13″ N and 82°50’03” W). From point B the boundary line continues along the median line, which is formed by the points of equidistance between Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua), through points C (with co-ordinates 14° 56′ 45″ N and 82° 33′ 56″ W) and D (with co-ordinates 14° 56′ 35″ N and 82° 33′ 20″ W), until it meets the point of intersection of the 12-mile arcs of the territorial seas of South Cay (Honduras) and Edinburgh Cay (Nicaragua) at point E (with co-ordinates 14° 53′ 15″ N and 82° 29′ 24″ W). From point E the boundary line follows the 12-mile arc of the territorial sea of South Cay in a northerly direction until it intersects the bisector line at point F (with co-ordinates 15° 16′ 08″ N and 82°21’56” W) (see below, pp. 753-754, sketch-maps Nos. 4 and 5).

306. Having decided upon a delimitation method and its application for the mainland and for the islands, the Court must now consider two remaining matters with respect to the course of the single maritime boundary: the starting-point and the endpoint.
307. The Parties in their written pleadings agreed that the appropriate starting-point for the boundary line between them should be located some distance from the mainland coast, but disagreed on exactly where. To account for the continuing eastward accretion of Cape Gracias a Dios as a result of alluvial deposits by the River Coco, both Parties in their written pleadings expressed a preference for situating the starting-point 3 nautical miles seaward from the “mouth” of the River Coco. Both Parties agreed that for the first 3 miles a negotiated solution should be found. But two differences remained between them: (i) from where on the River Coco these 3 miles should be measured; and (ii) in what direction.
308. As regards the first of these differences, Honduras proposes a starting-point situated 3 nautical miles due east of the point identified as the mouth of the River Coco (14° 59.8′ N, 83° 08.9′ W) by the Mixed Commission in 1962. The 1906 Award set the “mouth of the main branch of the Coco River” as the “extreme common boundary point on the coast of the Atlantic” between Nicaragua and Honduras. Nicaragua, for its part, contended throughout its written pleadings that the site of the “mouth” of the river should be adjusted to better reflect what it claims is the current reality and proposes a seaward starting-point fixed at a distance of 3 miles from that site along the line of its proposed bisector.
309. In oral argument and in its final submissions Nicaragua, while leaving its suggestion made in the written pleadings open, advocates a starting-point located at the current mouth of the River Coco “such as it may be at any given moment as determined by the Award of the King of Spain of 1906” without measuring any distance out to sea (see paragraph 99 above). Nicaragua thus does not now specify the current geographical co-ordinates of the mouth. According to Nicaragua, this starting-point, wherever it may be located on any given day, would then be connected by a straight-line single maritime boundary to the start of its proposed bisector line (at “a fixed point approximately 3 miles from the river mouth in the position 15°02’00” N, 83°05’26” W”).
Honduras continues to maintain that a distance measuring 3 miles from the point fixed by the Mixed Commission in 1962 should be used and that the Parties should seek a diplomatic solution for this undelim- ited area.
310. The Parties are now in dispute as to which of the small islands having formed in the mouth of the River Coco belong to which country and where the actual mouth is currently situated. A starting-point at the terminus of the land boundary (as determined “at any given moment” or by reference to the point fixed in 1962 by the Mixed Commission) might cut across these contested small islands, with the attendant risk that the island might later attach itself to the mainland of one of the Parties. The Parties are in the best position to monitor the situation as the shape of Cape Gracias a Dios evolves and to arrange a solution in accordance with the 1906 Arbitral Award, which remains res judicata for the land boundary.
311. The Court observes that it is apparent that Nicaragua’s proposal in its final submission (see paragraph 309) is problematic in certain respects and its initial suggestion to start the line some distance out to sea appears a more judicious solution. That a delimitation may begin at some distance out at sea has found support in judicial practice in cases where there is an uncertain land boundary terminus (see, for example, Delimitation of the maritime boundary between Guinea and Guinea-Bissau, Award of 14 February 1985). The Court considers it appropriate to uphold Honduras’s submission in this regard. The Court thus sets the starting-point 3 miles out to sea (15° 00′ 52″ N and 83° 05′ 58″ W) from the point already identified by the Mixed Commission in 1962 along the azimuth of the bisector as described below (see below, p. 757, sketch-map No. 6). The Parties are to agree on a line which links the end of the land boundary as fixed by the 1906 Award and the point of departure of the maritime delimitation in accordance with this Judgment.
312. As for the endpoint, neither Nicaragua nor Honduras in each of their submissions specifies a precise seaward end to the boundary between them. 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 first to be determined (see Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 19). Accordingly, it is usual in a judicial delimitation for the precise endpoint to be left undefined in order to refrain from prejudicing the rights of third States. (See for example Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 91, para. 130; Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 27, and Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 26-28, paras. 21-23; and Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, paras. 238, 245 and 307.)
313. Nicaragua draws its bisector “up to the area of seabed occupied by Rosalinda Bank, in which area the claims of third states come into play”. Honduras in its final submissions asks the Court to draw the boundary “until the jurisdiction of a third State is reached”. Honduras in
83’io- 5′
15° HONDURAS 15’03’00-N
Starting-Point Maritime Boundary 15°
55′- , C0°°
NICARAGUA
14″54’D0″N A Cabo Gracias a Dios 1962
Mixed Commission Point
Sketch-map No. 6. Starting-point of the maritime boundary
This sketch-map, on which coastal areas are shown In simplified form, has been prepared for illustrative purposes only
Mercator Projection (15°N) WGS84 – 55′

83°io- 5-
its pleadings suggests that Colombia has interests under various treaties that would be affected by a delimitation continuing beyond the 82nd meridian and, indeed, all of the maps produced by Honduras seem to take the 82nd meridian as the implied endpoint to the delimitation.
314. 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.
315. In order better to understand these choices, it is necessary to ana-lyse the potential third-State interests. Honduras contends that the 1928 Barcenas-Esguerra Treaty between Nicaragua and Colombia delimits a maritime boundary between Nicaragua and Colombia running along the 82nd meridian from approximately the 11th parallel to the 15th parallel, where it would presumably intersect with the traditional maritime boundary line along the 15th parallel (14° 59.8′ N) claimed by Honduras and thus mark the endpoint of the traditional boundary. This interpretation of the 1928 Treaty and its very validity are being challenged by Nicaragua in a separate case pending before this Court (Territorial and Maritime Dispute (Nicaragua v. Colombia)) and the Court will avoid prejudicing those proceedings by its decision here. However, even if Honduras’s interpretation of the 1928 Treaty is correct, Honduras maintains only that, at most, the line set by this Treaty continues along the 82nd meridian up to the 15th parallel. The delimitation line described above will lie well north of the 15th parallel when it reaches the 82nd meridian. Thus, contrary to Honduras’s argument, the line drawn above would not cross the 1928 Treaty line and therefore could not affect Colombia’s rights.
316. The Court recalls that Honduras also cites the potential third- State claim of Colombia pursuant to the 1986 Treaty between Colombia and Honduras on maritime delimitation. This Treaty purports to establish a maritime boundary commencing at the 82nd meridian and running due east along 14° 59′ 08″ N past the 80th meridian after which it eventually veers north. Thus, it might be argued, any extension of the delimitation line in this case past the 82nd meridian could be interpreted as indicating that Honduras negotiated a treaty involving maritime areas that did not actually appertain to it and could thereby prejudice Colombia’s rights under that treaty. The Court places no reliance on the 1986 Treaty to establish an appropriate endpoint for the maritime delimitation between Nicaragua and Honduras. The Court nevertheless observes that any delimitation between Honduras and Nicaragua extending east beyond the 82nd meridian and north of the 15th parallel (as the bisector adopted 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 15th parallel.
317. Another possible source of third-State interests, is the joint juris-dictional regime established by Jamaica and Colombia in an area south of Rosalind Bank near the 80th meridian pursuant to their 1993 bilateral Treaty on maritime delimitation. The Court will not draw a delimitation line that would intersect with this line because of the possible prejudice to the rights of both Parties to that Treaty.
318. The Court has thus considered certain interests of third States which result from some bilateral treaties between countries in the region and which may be of possible relevance to the limits to the maritime boundary drawn between Nicaragua and Honduras. The Court adds that its consideration of these interests is without prejudice to any other legitimate third party interests which may also exist in the area.
319. The Court may accordingly, without specifying a precise end- point, delimit the maritime boundary and state that it extends beyond the 82nd meridian without affecting third-State rights. It should also be noted in this regard that in no case may the line be interpreted as extending more than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured; any claim of continental shelf rights beyond 200 miles must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf established thereunder.
third States may be affected (see below, pp. 761-762, sketch-maps Nos. 7 and 8).
*
9. Operative Clause
321. For these reasons,
The Court,
(1) Unanimously,
Finds that the Republic of Honduras has sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay;
(2) By fifteen votes to two,
Decides that the starting-point of the single maritime boundary that divides the territorial sea, continental shelf and exclusive economic zones of the Republic of Nicaragua and the Republic of Honduras shall be located at a point with the co-ordinates 15° 00′ 52″ N and 83° 05′ 58″ W;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ran- jeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov; Judge ad hoc Gaja; AGAINST: Judge Parra-Aranguren, Judge ad hoc Torres Bernardez;
(3) By fourteen votes to three,
Decides that starting from the point with the co-ordinates 15° 00′ 52″ N and 83° 05′ 58″ W the line of the single maritime boundary shall follow the azimuth 70° 14′ 41.25″ until its intersection with the 12-nautical-mile arc of the territorial sea of Bobel Cay at point A (with co-ordinates 15° 05’25” N and 82° 52′ 54″ W). From point A the boundary line shall follow the 12-nautical-mile arc of the territorial sea of Bobel Cay in a southerly direction until its intersection with the 12-nautical-mile arc of the territorial sea of Edinburgh Cay at point B (with co-ordinates 14° 57′ 13″ N and 82° 50′ 03″ W). From point B the boundary line shall continue along the median line which is formed by the points of equidis- tance between Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua), through point C (with co-ordinates 14°56’45” N and 82°33’56” W) and D (with co-ordinates 14°56’35” N and 82° 33′ 20″ W), until it meets the point of intersection of the 12-nau- tical-mile arcs of the territorial seas of South Cay (Honduras) and Edinburgh Cay (Nicaragua) at point E (with co-ordinates 14° 53′ 15″ N and 82° 29′ 24″ W). From point E the boundary line shall follow the 12-nau- tical-mile arc of the territorial sea of South Cay in a northerly direction until it meets the line of the azimuth at point F (with co-ordinates 15° 16’08” N and 82°21’56” W). From point F, it shall continue along the line having the azimuth of 70° 14′ 41.25″ until it reaches the area where the rights of third States may be affected;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov; Judge ad hoc Gaja; AGAINST: Judges Ranjeva, Parra-Aranguren, Judge ad hoc Torres Bernardez;
(4) By sixteen votes to one,
Finds that 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 sea located between the endpoint of the land boundary as established 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.
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov; Judges ad hoc Torres Bernardez, Gaja;
AGAINST : Judge Parra-Aranguren.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this eighth day of October, two thousand and seven, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Nicaragua and the Government of the Republic of Honduras, respectively.
(Signed) Rosalyn HIGGINS, President.
(Signed) Philippe COUVREUR, Registrar.
Judge RANJEVA appends a separate opinion to the Judgment of the Court; Judge KOROMA appends a separate opinion to the Judgment of the Court; Judge PARRA-ARANGUREN appends a declaration to the Judgment of the Court; Judge ad hoc TORRES BERNARDEZ appends a dissenting opinion to the Judgment of the Court; Judge ad hoc GAJA appends a declaration to the Judgment of the Court.
(Initialled) R.H. (Initialled) Ph.C.

SEPARATE OPINION OF JUDGE RANJEVA

[Translation] Special circumstances and delimitation of the territorial sea — Rule-making or corrective function — Geomorphology and course of the provisional equidistance line — Notion of necessity and alternative course of the provisional line — Bisector and equidistance line — History of Article 15 of the 1982 United Nations Convention on the Law of the Sea — Development of jurisprudence — A largely settled debate — Reversal of jurisprudence — “Particular circumstances”.
1. I regret that I am unable to subscribe to the decision of the majority of the Court with respect to the third paragraph of the operative clause of the Judgment concerning the azimuth of the boundary segment starting from the point with the co-ordinates 15° 00′ 52″N and 83° 05′ 58″W, which follows the azimuth 70° 14′ 25″ until its intersection at point A (with co-ordinates 15° 05′ 25″N and 82° 52′ 54″W) with the 12-nautical- mile arc of the territorial sea of Bobel Cay. For this first section of the single delimitation line the Judgment challenges the law and method of delimitation of the territorial sea. In a vote on the other sections of the boundary, I would have voted in favour.
2. My disagreement centres on the way in which the Judgment treats the special circumstances under Article 15 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in its construction of the delimitation line. Contrary to the view of the majority of the Members of the Court, for delimitation of the territorial sea between States with adjacent or opposite coastlines, special circumstances possess not a rule- making but a corrective and adjusting function in respect of the provisional equidistance line. In paragraph 272 of the present Judgment, the Court justifies its abandonment of the provisional equidistance line in the following terms:
“However, the equidistance method does not automatically have priority over other methods of delimitation and, in particular cir-cumstances, there may be factors which make the application of the equidistance method inappropriate.”
In support of its decision it invokes arguments of fact — the geomorpho- logy resulting in the instability of the coastlines of both Parties, particularly at the mouth of the River Coco and around Cape Gracias a Dios — and arguments of law based on the interpretation of the last sentence of Article 15 of UNCLOS:
“The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”
The divisive issue concerns the point of law alone, as geomorphological features can, in certain instances, constitute special circumstances within the meaning of Article 15.
3. The role of special circumstances in delimitation of the territorial sea is one of the classic issues of maritime delimitation law. A historical review of the various stages of that debate is perhaps useful in the present case, which has challenged the creative action of jurisprudence in settling maritime delimitation law, inter alia, that of the territorial sea.
4. The literal interpretation of Article 15 of UNCLOS advocates the equidistance or median line for territorial sea delimitations when the coasts of the States are adjacent or opposite. Exceptions can be made to that rule of principle if special circumstances exist and if it is necessary to delimit the territorial sea in another manner. The use of the adjective “necessary”, which implies a notion of inescapable constraint, prescribes a very strict and restrictive interpretation of the conditions which may, exceptionally, justify abandoning the general rule. Paragraphs 268 and 269 of the present Judgment follow the path laid down by Article 15 of the Montego Bay Convention, but the difficulty in subscribing to the majority view derives from its conclusion that it is impossible to construct a provisional equidistance line, and from the normative equipollence attributed by the majority to the equidistance line and the provisional equidis- tance line in the second subparagraph of paragraph 280.
5. In paragraph 282, the Judgment notes that the Parties have each envisaged delimitation methods that did not systematically advocate the use of the median line; in other words, the conduct of the Parties has been interpreted as an exception to the general rule. On closer analysis, a distinction must be drawn between the content of the rule, whether or not accepted by the two Parties, and the interpretation of that rule, given the factual situation resulting from the geomorphology. In the present case, the Parties acknowledge both the unstable nature of the coastline in the area to be delimited and the difficulties of the exercise itself. Are these considerations such as to justify in law the “necessary” nature of a different method of territorial sea delimitation? The technical arguments must not be overlooked, but must, in any event, fall within the scope of the applicable law.
6. The general scheme of the geometric method adopted in the Judgment in paragraph 281 takes as its foundations the “special circumstances in which it [the Court] cannot apply the equidistance principle”; those circumstances are set forth in paragraph 280 in the following terms:
“because of the changing conditions of the area the Court has made no finding as to sovereignty over these islands (see paragraph 145 [of the Judgment]). Moreover, whatever base points would be used for
the drawing of an equidistance line, the configuration and unstable nature of the relevant coasts, including the disputed islands formed in the mouth of the River Coco, would make these base points (whether at Cape Gracias a Dios or elsewhere) uncertain within a short period of time.”
Regardless of the correctness of that technical assertion, it raises a point of law: is the condition of necessity required by the 1982 Convention fulfilled?
7. In absolute terms, the notion of necessity involves an absence of solution such that no alternative can be envisaged. The difficulties encoun-tered are not of themselves sufficient to justify the necessity of abandoning the general rule. The impossibility must be appraised from a legal standpoint. In the present case, the Judgment focuses upon the unstable geomorphological nature of the coastlines. But the restrictive approach adopted in the Judgment is regrettable, since it takes account of the geo- morphological element alone. Unlike the Court, the 1982 Convention did not overlook the potential for extremely unstable coastlines, a possibility which had not been envisaged by the Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958. Thus, the objection raised by the Judgment is irrelevant as to the principles. A very different matter is that of the applicability of Article 7, paragraph 2, of UNCLOS, which states the following:
“Where because of the presence of a delta and other natural con-ditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.”
The question is thus whether that provision of the Convention concerning the progressive development of the law relative to customary law is relevant. The status of the two litigant States with respect to the Convention renders the question devoid of purpose: the unstable nature of the coastlines does not, in itself, constitute a situation of impossibility giving rise to a legal vacuum such as to exclude the application of the general rule of the equidistance line. The reasoning would have been credible if this provision of UNCLOS on unstable coasts had been taken into account.
8. Given the consequences drawn by the Judgment from the importance it attributes to the geomorphological aspect, application of the provisional median line would result in an impasse and the Judgment justifies its solution by attributing a rule-making function to the special circumstances referred to in Article 15 of UNCLOS. In so doing, the Judgment reopens the debate that sank the diplomatic negotiations on maritime delimitation, whereas a rule-making provision concerning territorial sea delimitation has existed since 1958 in Article 12 of the Convention on the Territorial Sea, and the jurisprudence of the Court, particularly since the Jan Mayen case, has settled that debate. The current Judgment represents a reversal of jurisprudence sanctioned by an obiter dictum:
“[h]owever, the equidistance method does not automatically have priority over other methods of delimitation and, in particular cir-cumstances, there may be factors which make the application of the equidistance method inappropriate”.
9. The geometric figure that the line of delimitation represents is sur-prising. The text of Article 15 of UNCLOS refers to “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 difference in terminology between equidistance and median lines relates not to the delimitation method but to the different geographic situations to which that method is applied: equidistance line in reference to adjacent coasts and median line for those opposite one another (cf. A. L. Shalowitz, Shore and Sea Boundaries, Washington, D.C., United States Department of Commerce, 1962-1964, Vol. I, pp. 232-235)). The Judgment, however, uses the bisector line to effect the delimitation of the territorial sea. Beyond a straightforward question of terminology, we are confronted with an operation of a completely different nature. The bisector is a line segment which divides the angle of a sector, that is to say a plane or area sector, by isometry and thus equally. The bisector is used in apportionment or division of the area concerned, in the present case the polygon formed by the adjacent maritime frontages. A reminder of this technical definition is necessary inasmuch as the Court was requested to carry out a maritime delimitation and not an apportionment or division. That consideration explains the omission of the bisector method in 1953, during the working session of the International Law Commission and the group of experts on the technical implications of delimitation methods. In its 1956 report, when listing the possible methods, the International Law Commission also made no mention of the bisector approach.
10. With the lack of textual support in the applicable Convention for the bisector technique, the issue next at hand concerns the relegation of the provisional equidistance line. The Judgment abandons it in view of the difficulties described in paragraphs 277 to 280. It concludes that
“because of the changing conditions of the area the Court has made no finding as to sovereignty over these islands (see paragraph 145 [of the Judgment]). Moreover, whatever base points would be used for the drawing of an equidistance line, the configuration and unstable nature of the relevant coasts, including the disputed islands formed in the mouth of the River Coco, would make these base points
(whether at Cape Gracias a Dios or elsewhere) uncertain within a short period of time.”
On the legal level, there is no obstacle preventing the identification of base points from which the pairs of points equidistant from the boundary point would be fixed. In practice, drawing the equidistance line provides a reminder of the relationship between nature and law in maritime delimitation, the pons asinorum of international law: the law inevitably transcends the natural features to which it attributes particular effects. The law, like the jurisprudence, aims to prevent outcomes in which “pro-nounced” configurations are ignored (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Neth-erlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96), and also an overly basic interpretation of nature. Gidel mentioned as a possible justification for abandoning the equidistance line “cases in which it would involve real drawbacks [and]. . . lead to serious inequity between the two coastal States” (G. Gidel, Le droit international de la mer, 3 vols., 19321934, p. 771). The plotting of the provisional line must add to the element of stability and permanence which characterizes a boundary delimitation exercise. The Court has not denied itself its discretionary powers to determine an abstract point from which the required linear geometrical figure is constructed (see paragraph 280 of the Judgment). Figure 7 (b) appended to the work by L. Lucchini and M. Voelckel (Droit de la mer, tome 2, Vol. 1, 1996) could have been of help in drawing such a provisional line. In the present instance, the choice of endpoints for the two States’ coastal fronts and of the point established by the Mixed Commission of 1962 has been clearly identified on sketch-map No. 3 on page 750 of the present Judgment. An equidistance line can then be constructed from pairs of points equidistant from the point determined by the Mixed Commission in 1962. Those pairs of points will be selected in such a way as to take account of the salient features of the coastal fronts of each State.
11. The genesis of Article 15 was mentioned in justification of the rule- making function, even by default, of special circumstances. The median line rule lies at the heart of the operative provisions of Article 15, the wording of which was practically settled, at the Third United Nations Conference on the Law of the Sea, in the 7 May 1975 draft of the single negotiating text. In such a situation, on that particular point of the con- substantial links between equidistance line and special circumstances, the Third Conference did not challenge the fundamental basis of the general scheme of Article 12 of the Geneva Convention on the Territorial Sea and the Contiguous Zone. In support of its interpretation, the Judgment takes refuge behind the commentaries in the Yearbook of the International Law Commission, 1952, Vol. II, p. 38. But the Judgment neglects to take account of the opinion of the Special Rapporteur in 1956:
“The Yugoslav Government had proposed the deletion of . . . the phrase ‘unless another boundary line is justified by special circum-stances’. He did not believe that the Commission was prepared to delete the latter phrase, because it attached considerable weight to it and its deletion would make the article too rigid.” (United Nations, Summary Record of the 366th Meeting, doc. A/CN.4/SR.366.)
It was on the basis of that proposed interpretation that a vote was held the same day on a text combining draft Articles 12 and 14 drawn up by the Special Rapporteur. The Special Rapporteur’s view was that the role of special circumstances was to correct the effects of strict application of a median or equidistance line. At the 61st meeting of the First Committee of the United Nations Conference on the Law of the Sea (Geneva, 24 February-27 April 1958), “[t]he phrase ‘special circumstances’ in the second sentence was adopted by 38 votes to 7, with 22 abstentions” (A/CONF.13/L.28/Rev.1, Plenary Meetings, Vol. II, p. 119). That pre-scription does not mean that the median line is obligatory, for that would destroy the consubstantial relationship between the median line and special circumstances, and thus the median line has only a provisional status in the delimitation of the territorial sea.
12. The jurisprudence relied upon by the Judgment to justify the aban-donment of the provisional equidistance line is not decisive either. Among arbitral proceedings, the Guinea/Guinea-Bissau case is well known, in that the Arbitration Tribunal sought an equitable delimitation taking account of a broader geographic area to avoid prejudicing subsequent delimitations concerning third States (see case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, International Law Reports, decision of 14 February 1985, para. 109). In that case, the capricious character of the configuration of the coastal geography was decisive for the Tribunal because of the effect of the coastal configuration on the equidistance line. The Tribunal ruled out the equidis- tance line after assessing whether the delimitation would be of an equitable nature using the provisional equidistance line. In fact, the adoption of the equidistance approach would have had the
“drawback of resulting in the middle country [Guinea in that instance] being enclaved by the other two and thus prevented from extending its maritime territory as far seaward as international law permits” (ibid., para. 104).
The short concave coastline was thus left aside in favour of a convex con-figuration covering the maritime front of West Africa as a whole. The overall orientation of the coasts constitutes a special circumstance, account of which had to be taken in adjusting or even ruling out the equi- distance line. The Judgment effects an amalgamation by taking into consideration only the final outcome and making the provisional line an intermediate stage.
13. The plotting of a single maritime boundary does not, from the standpoint of the jurisprudence, call into question the principles governing special circumstances. The debates at the Third United Nations Con-
ference on the Law of the Sea highlighted, on the one hand, the general adherence to a unitary conception of the basis of the law of maritime delimitation and, on the other, with respect to special circumstances, the fact that the rule is “consubstantial” with equidistance, in that the two notions complement and support each other. The evolution of the Court’s jurisprudence over the period from 1969 to 1985 reflected the often ten-tative efforts to that end, before the advent of a solution of principle in 1993. The Court recalls in paragraph 271 of the present Judgment its own findings in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea inter-vening) :
“The Court has on various occasions made it clear what the appli-cable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdictions is to be determined. They are expressed in the so-called equitable principles/relevant circumstances method. This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result’.” (Judgment, I.C.J. Reports 2002, p. 441, para. 288.)
14. In 1969, the Court established the principle that the pursuit of an equitable outcome was the objective of all maritime delimitations:
“it is necessary to seek not one method of delimitation but one goal” (North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 50, para. 92).
The median line was at the time at the centre of a controversy which, in retrospect, gives rise to some amusement. The Libya/Malta Judgment constitutes a significant stage in the development of the law with its dec-laration that
“[t]he Court is unable to accept that, even as a preliminary and pro-visional step towards the drawing of a delimitation line, the equidis- tance method is the one which must be used” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 37, para. 43).
The use of the emphasized verb “must” reflects, initially, the Court’s rejection of compulsory and systematic application of the equidistance line on a preliminary and provisional basis; but, subsequently, such a line, previously condemned, could be taken into consideration. After all, the 1985 Judgment applied the equidistance line to the case, proceeding by stages.
15. In 1993, the entry into force of the Montego Bay Convention was regarded as probable in the near future, as that instrument was interpreted as an expression of positive law and the Court accepted it and regarded it as such. Thus the Judgment in the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) case put the finishing touches to that development when it adopted the method of delimitation by stages, but without the reservations still expressed in the 1985 decision. When the Court straightforwardly applied the delimitation by stages method, it was mindful of coherence and predictability, two concerns already expressed in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case Judgment. Article 6 of the Geneva Convention on the Continental Shelf, in the Court’s view, provided for an approach
“taking provisionally the median line … and then enquiring whether ‘special circumstances’ require ‘another boundary line'” (Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, pp. 59-60, para. 49).
Later in the same Judgment, the Court places its judicial policy approach within a unitary framework by stating that “[j]udicial decisions on the basis of the customary law governing continental shelf delimitation between opposite coasts have likewise regarded the median line as a provisional line” (ibid., p. 60, para. 50). Unity of method, if not of regime, was thenceforth regarded as the rule, whether for territorial seas, the continental shelf, exclusive economic zones or fishing zones. The pursuit of an equitable result did not rule out a simple and readily understandable solution. The traditional and apparently parallel pairs, that is to say, on the one hand, equidistance/special circumstances and, on the other, relevant circumstances/equitable principles, have since 1993 formed part of the same dynamic process: both seek to obtain an equitable result in maritime delimitation. There are two consequences, the first establishing that the specific terminology relating to areas does not affect the coherence of the rules and the second that the plotting, on a preliminary and provisional basis, of an equidistance line is indispensable. The Judgments in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) and the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) cases, in 2001 and 2002 respectively, consolidated the devel-opment represented by the step-by-step approach based on the provisional median line.
16. In paragraph 272, the present Judgment refers to “particular cir-cumstances”. The Court thus invents a third category of circumstances alongside the special circumstances and the relevant circumstances of the Convention on the Law of the Sea. That new category is thus of an un-specified nature and corresponds to what the Franco-British arbitral award called “a wholly different criterion of delimitation” (case concern-
ing the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, decision of 30 June 1997, United Nations, RIAA, Vol. XVIII, p. 116, para. 249). The major problem is that the majority of the Members of the Court base themselves upon those “particular circumstances” to depart from the application of the provisional median line rule and justify the use of a different rule, that of the bisector. Those circumstances, as distinct from the circumstances known as “special or relevant”, are no longer assigned the merely corrective function prescribed by the law and all jurisprudence to date, but instead a rule-making function. The Court has directly endorsed the analyses concerning the geomorphology of the coasts in order to construct a bisector line. Contrary to the Court’s jurisprudence, which excludes from the field of directly applicable rules any principle other than that of preliminary and provisional equidistance, the present Judgment challenges the creative exercise progressively undertaken by the Court. It opens up the way for new uncertainties which may lead to a direct normativity of equitable principles at the expense of the rule of positive law.
17. To conclude, the present Judgment, in so far as it concerns the azi-muth in the area of the territorial sea between the point fixed by the Mixed Commission in 1962 and the intersection with the outer limit of Bobel Cay, constitutes a repudiation of the law and the Court’s jurisprudence in matters of territorial sea delimitation.
(SIGNED) RAYMOND Ranjeva.

SEPARATE OPINION OF JUDGE KOROMA

Employment of bisector consistent with jurisprudence on maritime delimitation — Geographical features of area at heart of delimitation — Choice of method depends upon particular circumstances of the area to be delimited — Equidistance method when appropriate but not obligatory — Bisector also a geometric method and its relation to coastal geography — Articles 15, 74, paragraph 1, and 83, paragraph 1, of United Nations Convention on the Law of the Sea (UNCLOS) — Reservations regarding decision to attribute territorial sea south of the 14° 59.8’N parallel — Avoiding giving disproportionate effect to insignificant maritime features and creating potential source offuture maritime conflict.
1. Although I concur with the Court’s conclusion regarding the method of delimitation applied in this case, I nevertheless consider that certain significant aspects of the Judgment call for emphasis and clarification.
2. It has been suggested that the utilization of the bisector to effect the delimitation in this case represents a departure from the jurisprudence of the Court. I do not think so. In my view, the Judgment is both consistent with and reflective of the jurisprudence on maritime delimitation, including the Court’s case law. Under this jurisprudence, the delimitation process begins, as a rule, with defining
“the geographical context of the dispute . . ., that is to say the general area in which the . . . delimitation, which is the subject of the proceedings, has to be effected” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 34, para. 17).
3. In the Gulf of Maine case, the Chamber of the Court made clear that the geographical features of the maritime area to be delimited were at the heart of the delimitation process and that the criteria to be applied were
“essentially to be determined in relation to what may be properly called the geographical features of the area” (Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 278, para. 59).
4. So also did the Arbitral Tribunal in the case concerning the delimi-tation of the continental shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic, observing that
“it is the geographical circumstances which primarily determine the appropriateness of the equidistance or any other method of delimita-
tion in any given case” (International Law Reports, Vol. 54, p. 66, para. 96)
and going on to state that
“the appropriateness 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” (ibid., para. 97).
5. The importance of geographical features in relation to the delimita-tion method and outcome has also been emphasized in the following cases: Saint Pierre and Miquelon, (International Law Reports, Vol. 95, p. 660, para. 24); Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment (I.C.J. Reports 1985, pp. 42 et seq.); Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment (I.C.J. Reports 1993, pp. 74-75); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment (I.C.J. Reports 2002, p. 339, para. 49).
6. However, this is not to suggest that geographical facts alone deter-mine the line to be drawn; rules of international law as well as equitable principles must be applied to determine the relevance and weight of the geographical features. As the Chamber of the Court declared in the Gulf of Maine case,
“delimitation . . . must be based on the application of equitable criteria and the use of practical methods capable of ensuring an equitable result” (Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 300, para. 113).
7. As the Arbitration Tribunal in the Guinea/Guinea-Bissau case also made clear, no one delimitation formula works in all cases:
“the equidistance method is just one among many and … there is no obligation to use it or give it priority, even though it is recognized as having a certain intrinsic value because of its scientific character and the relative ease with which it can be applied” (Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, International Law Reports, Vol. 77, p. 681, para. 102).
8. Thus, its intrinsic value notwithstanding, equidistance cannot be applied universally and automatically as the method of delimitation irrespective of the specific characteristics of the area to be delimited, of the suitability of the method for a particular area, and of the difficulty of its application to a specific situation.
9. Recognizing this, the Court in the North Sea Continental Shelf cases stated:
“It would … be ignoring realities if it were not noted at the same
time that the use of this method . . . can under certain circumstances produce results that appear on the face of them to be extraordinary, unnatural or unreasonable.” (Judgment, I.C.J. Reports 1969, p. 23, para. 24.)
10. As pointed out in the Judgment in the present case, a number of geographical and legal considerations were raised by the Parties regarding the method to be followed by the Court for the maritime delimitation. As a result of the geographical instability of the mouth of the River Coco, any variation or error in situating the base points would be disproportionately magnified in the resulting equidistance line. The Parties, moreover, agreed that owing to the sediment carried to and deposited at sea by the River Coco the delta and the coastline to the north and south of the cape exhibit very active morpho-dynamics. Thus, the continued accretion of the cape might render any equidistance line constructed today arbitrary and unreasonable in the near future.
11. Neither Party argued, in the main, that the equidistance/special cir-cumstances method should be used for delimiting the respective territorial seas in this case. Nicaragua instead urged the Court to account for the unstable coastal geography by constructing the entire single maritime boundary from “the bisector of two lines representing the entire coastal front of both states” (Judgment, para. 273), that bisector running along the geodetic azimuth of 52° 45′ 21″. As regards equidistance, Honduras acknowledged that the mouth of the River Coco “shifts considerably, even from year to year” (ibid., para. 274), and argued from this that it was “necessary to adopt a technique so that the maritime boundary need not change as the mouth of the river changes” (ibid.), while also contending that the 15th parallel accurately reflected the eastward-facing coastal fronts of the two countries, such that it represented “both an adjustment and simplification of the equidistance line” (ibid.). Honduras also admitted that “geometrical methods of delimitation, such as perpendiculars and bisectors, are methods that may produce equitable delimitations in some circumstances” (ibid.).
12. The Court, having carefully examined the arguments advanced by the Parties, understood their well-founded reluctance — based on geo-graphical and legal factors — to embrace equidistance and judiciously decided to employ the bisector method — based on the line formed by bisecting the angle created by the two lines approximating the coastal fronts of the disputed area — as a suitable delimitation method in this case.
13. Thus, the choice of method in this case very much depends upon the pertinent circumstances of the area, as well as the coastal configurations abutting upon the disputed area. And where the Court is called upon to determine a single maritime boundary as in the present case,
such a line, as the Chamber of the Court noted in the Gulf of Maine case,
“can only be carried out by the application of a criterion, or combi-nation of criteria, which does not give preferential treatment to one of [the zones] to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them” (Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 327, para. 194).
14. As pointed out in the Judgment, not only has the bisector method proved to be viable where equidistance is not possible or appropriate, but, like equidistance, the bisector is a geometric method that can be used to give legal effect to the
“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 maritime projections of the coasts of the States . . . converge and overlap” (ibid., para. 195).
15. The Court in Libya/Malta declared that, if the delimitation method is to “be faithful to the actual geographical situation” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 45, para. 57), it should seek an equitable solution by reference first to the State’s “relevant coasts” — which is exactly what the Court has done in the present case in ensuring that the relevant coasts are of fairly comparable length. The Court confirmed this position in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), where it was asked, inter alia, to establish a single maritime delimitation. The Court considered the geographical configuration and peculiarity of the maritime area, including the coastline in question, to be important elements in the case to be taken into account, as relevant circumstances for the delimitation, declaring as follows:
“The geographical configuration of the maritime areas that the Court is called upon to delimit is a given. It is not an element open to modification by the Court but a fact on the basis of which the Court must effect the delimitation.” (Judgment, I.C.J. Reports 2002, pp. 443-445, para. 295; emphasis added.)
16. As recognized in the Judgment, the equidistance method approxi-mates the relationship between two parties’ relevant coasts by comparing the fine relationships between acceptable pairs of base points. The bisector method likewise seeks to approximate the relevant coastal relationships, but does so on the basis of the macro-geography of a coastline as represented by a line drawn between two points on the actual coast, although care must be taken in applying the bisector method to avoid “completely refashioning nature” (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 49, para. 91).
17. As has been indicated, the method used by the Court in the present case is not at all unprecedented. The Arbitration Tribunal in its Award in the 1985 Guinea/Guinea-Bissau case drew a perpendicular (the bisector of a 180° angle) to a line drawn from Almadies Point (Senegal) to Cape Shilling (Sierra Leone) to approximate the general direction of the coast of “the whole of West Africa” (Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, International Law Reports, Vol. 77, pp. 683-684, para. 108). The Tribunal considered this approach, rather than equidistance, to be necessary in order to effect an equitable delimitation that had to be “integrated into the present or future delimitations of the region as a whole” (ibid., p. 683, para. 108).
18. Moreover, by its choice of method, the Court has taken into con-sideration and applied not only Article 15 of the United Nations Conven-tion on the Law of the Sea (UNCLOS), which allows for delimitation “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance herewith” (emphasis added), but also Articles 74, paragraph 1, and 83, paragraph 1, of UNCLOS, which provide that the exclusive economic zone and continental shelf are to be delimited by “agreement on the basis of international law … to achieve an equitable solution” — an objective which should guide every delimitation.
19. It can thus be seen that, in choosing the bisector in the present case, the Court, rather than departing from its established jurisprudence, has reaffirmed, applied and given effect to the law as well as its jurisprudence.
20. On the other hand, I have reservations regarding the decision to attribute to Honduras areas of territorial sea lying south of the 14° 59.8′ N parallel. While Article 3 of UNCLOS entitles a State party to claim a territorial sea up to a limit not exceeding 12 nautical miles, Honduras stated in its Counter-Memorial that its territorial sea would not extend south of the 14° 59.8′ N parallel and this was also reflected in its final submissions. There is, therefore, no compelling reason, legal or otherwise, not to uphold this submission, especially as this would have prevented the overlapping of the maritime areas of the Parties and eliminated a potential source of future conflict. In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), the Court considered that using Qit’at Jaradah, a very small, uninhabited, barren island situated between the main island of Bahrain and Qatar, as a base point in the construction of an equidis- tance line to be adopted as the delimitation line would give
“a disproportionate effect … to an insignificant maritime feature” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Quatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 104 and 109, para. 219).
Accordingly the Court declined to do so.
21. Upholding Honduras’s request would not only have been consistent with the applicable law but would have eliminated a potential source of future maritime conflict, which the history of the dispute might appear to portend.
(Signed) Abdul G. KOROMA.

DECLARATION OF JUDGE PARRA-ARANGUREN

1. The Note of 19 March 1912 sent by the Minister for Foreign Affairs of Nicaragua to the Foreign Minister of Honduras recalls the failure of the Mixed Commission created by the 1894 Treaty to agree on one sector of the boundary line and states:
“The disagreement having been thus defined, the entire portion of the frontier line was left undemarcated from the point on the Cor-dillera called Teotecacinte to its endpoint on the Atlantic coast and to the boundary in the sea marking the end of the jurisdiction of the two States. In respect of determining how to draw the disputed portion of the line, it was decided to carry out the provisions of Article III of the Treaty cited above.” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vol. I, p. 292; emphasis added.) [Translation by the Registry.] 2. Nicaragua’s Note of 19 March 1912 challenged for the first time the validity and binding nature of the 1906 Arbitral Award, in particular the establishment of the mouth of the Coco River where it flows out in the sea close to Cape Gracias a Dios as the extreme common boundary point between Nicaragua and Honduras on the Atlantic coast. On this occasion, Nicaragua indicated several grounds for the nullity of the decision of the King of Spain, one of them being the following:
“It is also a universal principle that awards which are inconsistent in themselves (contradictorias) are without value and inapplicable, and there is an evident inconsistency in this Award when it deals with that section of the frontier line which should separate the jurisdiction of the two countries in the territorial sea, in that, after having laid down that the direction of the frontier line is the thalweg or main watercourse of the principal arm of the Coco River, it then declares that the islets situated in that arm of the river belong to Honduras, thus leading to the impossible result of leaving Honduran territory enclaved within Nicaraguan waters, and thus also leaving without effect the line of the thalweg referred to — quite apart from the fact of deciding nothing as regards the direction of the frontier line which, according to international law, should show the territorial waters of each Republic as forming part of its respective territories.” (Ibid., p. 294, emphasis added.) [Translation by the Registry.] 3. Paragraph 39 of the Judgment refers to Nicaragua’s Note of 19 March 1912. However, the Court only recalls that it “challenged the
validity and binding character of the Arbitral Award”, not mentioning the statements quoted above, even though they demonstrate Nicaragua’s opinion that the 1906 Arbitral Award had established “the frontier line which should separate the jurisdiction of the two countries in the territorial sea”.
4. I agree with Nicaragua’s Note of 1912 acknowledging that the 1906 Arbitral Award determined the sovereignty of the disputed mainland and insular territories, as well as the continental and insular territorial waters appertaining to Honduras and Nicaragua. However, I cannot share Nicaragua’s allegation that the decision of the King of Spain was null and void because of its “omissions, contradictions and obscurities”. Nicaragua presented this contention to the Court, but it was not upheld in its Judgment of 18 November 1960, which is res judicata (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, pp. 205-217).
5. For these reasons, I voted in favour of paragraph 321 (1) and against paragraph 321 (2), paragraph 321 (3) and paragraph 321 (4) of the Judgment.
(SIGNED) GONZALO Parra-Aranguren.

DISSENTING OPINION OF JUDGE AD HOC TORRES BERNARDEZ

[Translation] Introduction — I. The territorial dispute: A. The applicable law for determining sovereignty over the disputed islands: uti possidetis juris, post-colonial effectivites and acquiescence; B. The decision in the Judgment and post-colonial effectivites; C. Honduras’s uti possidetis juris in the disputed islands; D. “Adjacency” relied on by Nicaragua; E. Acquiescence by Nicaragua; F. Conclusion — II. Delimitation of the maritime areas by a single maritime boundary:
A. The rejection of the “traditional maritime boundary” claimed by Honduras;
B. Non-application by the Judgment ofsuccession to the territorial waters from the colonial period under uti possidetis juris; C. The ex novo delimitation of maritime areas effected by the Judgment: 1. The Parties’ maritime claims and the question of defining the “area in dispute”; 2. The law applicable to maritime delimitation; 3. Areas to be delimited and the methodology adopted by the Judgment: the abandonment ofequidistance and delimitation in stages in favour of the bisector method; 4. The bisector in the Judgment and its construction (coastal fronts); 5. Application of equidistance to the delimitation around the islands; 6. The demarcation by the Mixed Commission of1962 and the starting- point of the single maritime boundary; 7. The endpoint of the single maritime boundary, bilateral treaties and third States; 8. Conclusion.
Introduction
1. I have voted in favour of the decision in the Judgment to the effect that sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay lies with the Republic of Honduras (subparagraph (1) of the operative clause), as it is my view — in the light of the oral arguments, as well as the evidence and information submitted by the Parties — that these islands, all lying north of the 15th parallel, belong to Honduras for three reasons: (a) Honduras possesses a legal title to the islands pursuant to the uti possidetis juris position in 1821, which applies as between the Parties; (b) the post-colonial effectivites exercised by Honduras a titre de souverain over the islands and in the territorial sea around them and the absence of effectivites of Nicaragua; and (c) Nicaragua’s acquiescence in Honduras’s sovereignty over the islands until the belated assertion of a claim in the Memorial filed by the Applicant in the present proceedings on 21 March 2001.
2. Thus, in my view, the legal basis for Honduras’s sovereignty over the islands is threefold. However, according to the reasoning set out in the Judgment, Honduran sovereignty over the islands is based solely on the post-colonial effectivites. As is explained in that reasoning, the majority deems that the evidence is insufficient to allow for ascertaining which
of the two Parties inherited the Spanish title to the islands by operation of the principle of uti possidetis juris, and that there is no proof of any acquiescence by Nicaragua in Honduras’s sovereignty over the islands. I disagree with the negative findings of the majority in these respects, whilst agreeing that Honduras also has sovereignty over the islands based on the post-colonial effectivites.
3. It follows that the discussion below concerning the “territorial dispute” is the statement of a separate, rather than a dissenting, opinion. The reason why the present opinion is a “dissenting opinion” lies elsewhere, namely in the “maritime delimitation”, because on this latter subject I am in utter disagreement, save on one point, with the majority’s decisions and supporting reasoning, and this explains my vote against subparagraphs (2) and (3) of the operative clause of the Judgment.
4. The point in question, and I acknowledge its importance, concerns the delimitation of the territorial sea surrounding the islands effected by the Judgment, as this delimitation is in full accord with the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, in force between the Parties. Had there been a separate vote on that section of the single maritime boundary, I would have voted in favour of it. Thus my vote against subparagraph (3) as a whole must be understood as a qualified one, since I fully endorse the route of the delimitation line around the islands.
5. Finally, I voted in favour of subparagraph (4) of the operative clause, as I am of the opinion, given the circumstances of the case, that the best solution is for the Parties to agree on the course of the delimitation line in the territorial seas between the endpoint of the land boundary established by the 1906 Arbitral Award and the starting-point of the single maritime boundary determined by the present Judgment.
I. The Territorial Dispute
A. The Applicable Law for Determining Sovereignty over the Disputed Islands: Uti Possidetis Juris, Post-colonial Effectivites and Acquiescence
6. Confronted with repeated attempts by the Applicant to have the island dispute settled through the application of the law of the sea, the Judgment rightly reaffirms that the question of sovereignty over the four islands in dispute, located north of the 15th parallel, must be resolved in accordance with international law on the acquisition of land territories. And, in that field, it is no longer possible to question the role of the principle of uti possidetis juris, as the dispute over the islands can be traced back to the decolonization which took place in 1821 in Central America, when the Republic of Nicaragua and the Republic of Honduras proclaimed their independence from Spain. Simple geographic adjacency, post-colonial effectivites and acquiescence were also relied upon by one or other of the Parties as a basis for legal title to the islands in dispute.
B. The Decision in the Judgment and Post-colonial Effectivites
7. According to the Judgment, the post-colonial effectivites demon-strated by Honduras attest to the intent and will of the Respondent to act a titre de souverain and constitute in the present case a sufficient and effective manifestation of State authority over the four islands. In contrast, the Court found no evidence of any intent or will on the part of Nicaragua to act a titre de souverain with regard to the disputed islands, nor any evidence of the effective exercise or demonstration of its authority over any one of the four islands concerned.
8. The Judgment’s finding is based on generally accepted principles articulated in the Permanent Court’s decision in the case concerning the Legal Status of Eastern Greenland, and on the present Court’s recent jurisprudence on the subject of small islands that are intermittently inhabited, uninhabited or of slight economic importance (Qit’at Jaradah; Pulau Ligitan and Pulau Sipadan).
9. I subscribe wholeheartedly to that finding, since the evidence pre-sented to the Court of post-colonial effectivites concerning the islands weighs heavily in favour of Honduras. While the various evidentiary offerings are variable in number and probative value, as a whole they provide ample proof of Honduras’s intent and will to act a titre de sou- verain and of the effective exercise and manifestation of its authority over the islands and in the adjacent waters. Confronted with the Respondent’s post-colonial effectivites, the Applicant was unable to prove the existence of a single Nicaraguan post-colonial effectivite in respect of the contested islands.
10. Moreover, in the circumstances of the present case, the fact that Honduras obtained title to the islands by a process of acquisition based on post-colonial effectivites — in other words, separately from the situation arising from the uti possidetis juris of 1821 — can hardly give rise to any conflict with the holder of a title based on uti possidetis juris, since Nicaragua is just as lacking in post-colonial effectivites in the islands as it is in title by way of uti possidetis juris.
C. Honduras’s Uti Possidetis Juris in the Disputed Islands
11. Upon independence, the Parties freely accepted the uti possidetis juris principle, which had been formulated a few years earlier following a political initiative by Simon Bolivar. It was supposed to act as an objective criterion to facilitate the peaceful settlement of the territorial issues already outstanding at the time or which could arise in the future for the new Republics. Both the Republic of Honduras and the Republic of
Nicaragua declared themselves to be successor States to the Spanish Crown with regard to the former Spanish colonial administrative unit on whose territory they were respectively established — namely the former province of Honduras for the Republic of Honduras and the former province of Nicaragua for the Republic of Nicaragua — initially as constituent Republics of the Federal Republic of Central America. The dissolution of the Federation in 1838-1840 did not lead to any territorial changes for either of the Parties to the present case.
12. The province of Honduras and the province of Nicaragua were both, prior to 1821, part of the same, broader colonial administrative unit, the Captaincy-General of Guatemala, which in turn was part of the Vice-Royalty of New Spain (Mexico). As was observed in the Arbitral Award made on 23 December 1906 by Alfonso XIII, the King of Spain, in the border dispute between Honduras and Nicaragua:
“the Spanish provinces of Honduras and Nicaragua were gradually developing by historical evolution in such a manner as to be finally formed into two distinct administrations (intendencias) under the Captaincy-General of Guatemala by virtue of the prescriptions of the Royal Regulations of Provincial Intendants of New Spain of 1786, which were applied to Guatemala and under whose regime they came as administered provinces till their emancipation from Spain in 1821” (United Nations, Reports of International Arbitral Awards (RIAA), Vol. XI, p. 112).
13. On succeeding to independence, the Republic of Honduras and the Republic of Nicaragua incorporated the uti possidetis juris principle into their respective constitutions and into their treaties. Thus, for example, Article iI, paragraph 3, of the Gamez-Bonilla Treaty of 7 October 1894 — the basis of the delimitation carried out in 1900-1904 by the Mixed Com-mission established by Article I of that Treaty and, later, of that established by the Arbitral Award made by the King of Spain on 23 December 1906 — pithily expresses the very core of the uti possidetis juris principle as follows:
“It is to be understood that each Republic is owner of the territory which at the date of independence constituted, respectively, the provinces of Honduras and Nicaragua.” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua),
Judgment, I.C.J. Reports 1960, p. 199.)
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14. During the nineteenth century and the first half of the twentieth century, uti possidetis juris was viewed by European legal scholars as a regional doctrine or principle specific to relations between the Latin American republics alone, with, in Europe, considerable resistance to universal application of the principle as a positive norm of general interna-tional law. Certain scholarly criticisms made at the time of the Award of 30 June 1865 by Isabella II, the Queen of Spain, in the Aves Island case between the Netherlands and Venezuela reflect very accurately such sen-timent (see P. Lapradelle et Politis, Recueil des arbitrages internationaux, Vol. 2, pp. 404-421).
15. At the same time, a number of arbitral awards rejected arguments which, in the final analysis, were based on the uti possidetis juris principle, in favour of alleged effectivites as far-fetched as they were limited, such as declaring sovereignty over an island from aboard a merchant ship cruising some half a mile off the island in question, without leaving any sign of sovereignty on the island (see the Arbitral Award of 28 January 1931 concerning the dispute between France and Mexico regarding sovereignty over Clipperton Island, Revue generale de droit international public, 1932, Vol. 39, pp. 129-132). Even much more recently, in the Beagle Channel case between Argentina and Chile (1977), an arbitral tribunal composed of Members of the International Court of Justice characterized uti possidetis juris as a “doctrine” and not a “principle” (United Nations, RIAA, Vol. XXI, p. 81, para. 9).
16. However, once the intangibility of boundaries inherited upon decolonization had gained general acceptance among African States, rec-ognition of the principle of uti possidetis juris became so widespread that in 1986 a Chamber of the International Court of Justice was able to state:
” Uti possidetis … is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs.” (Frontier Dispute (Burkina Faso/Republic of Mali), Judg-ment, I.C.J. Reports 1986, p. 566, para. 23.)
In 1992, another Chamber of the Court was prompted to apply the uti possidetis juris principle in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)), at the same time clarifying a number of questions of interest, in particular regarding the territorial, island and maritime scope of the principle and the inherent consequences of its application by international courts and tribunals (Judgment, I.C.J. Reports 1992, p. 351). In 1994, in the Territorial Dispute (Libyan Arab Jamahiriya/Chad) case, the two Parties were in agreement that, by virtue of the uti possidetis juris principle, Chad and Libya inherited the frontiers resulting from colonization by France and Italy respectively.
17. More recently, in 2005, the principle was applied by another Chamber of the Court in the case concerning the Frontier Dispute (Benin/ Niger) (Judgment, I.C.J. Reports 2005, p. 90). Elsewhere, in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits, Judgment, I.C.J. Reports 2001, p. 40), Bahrain also raised the uti possidetis juris principle
in respect of the island part of the dispute, but there was no need for the Court to apply it because the case did not involve State succession. Fur-thermore, over recent decades, the practical usefulness of the principle has given rise to legal writings in favour of extending its application to cases of State succession other than those resulting from decolonization (for example, situations arising from the dissolution of a federal State).
18. However, that kind of problem does not arise in the present case, which concerns a precise instance of decolonization: the succession of States which took place on 15 September 1821, when the former Spanish provinces of Honduras and Nicaragua became independent sovereign States.
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19. The Judgment confirms that uti possidetis juris is no longer one of those regional norms whose substance and existence must be demonstrated by the party relying on it. While the Court thus recognizes (juris novit curiae) uti possidetis juris as a principle of general international law, the present Judgment also confirms the difficulties still encountered in applying that principle to a particular area when the internal law referred to by the Latin genitive juris is an historical jus such as that which the Spanish Crown applied in America over more than three centuries.
20. The Judgment also confirms that the uti possidetis juris principle refers to a notion of possession understood as possession of a right or legal title established within the legal order of the predecessor State, regardless of whether the territory in question was occupied or not. Furthermore, according to the Judgment, the uti possidetis juris principle is just as relevant to seeking title to a territory as it is to determining the position of boundaries, which is in accordance with practice. In other words, it covers disputes over delimitation in the strict sense as well as those as to the holder of title to a particular land, island or maritime area (disputes over attribution).
21. The uti possidetis juris principle is thus perfectly applicable to determining sovereignty over the disputed islands in the present case, as expressed in the Judgment as follows:
“If the islands are not terra nullius, as both Parties acknowledge and as is generally recognized, it must be assumed that they had been under the rule of the Spanish Crown. However, it does not necessarily follow that the successor to the disputed islands could only be Honduras, being the only State formally to have claimed such status.” (Judgment, para. 158.)
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22. It is from this point — i.e., the issue of whether Spain had attributed the disputed islands to the province of Honduras or to that of Nicaragua — that my views part company with those of the majority. Our differences thus concern the production of evidence of such attribution and, in particular, how such evidence can be better appreciated in the light of the nature of the original title of the Spanish Crown in its American territories and the characteristics and goals of its American legislation.
23. In this respect, it is appropriate to bear in mind what was said by a Chamber of the Court in 1992:
“it has to be remembered that no question of international boundaries could ever have occurred to the minds of those servants of the Spanish Crown who established administrative boundaries; uti possidetis juris is essentially a retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes” (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 388, para. 43).
24. Where the uti possidetis juris position must be proved retroactively, it is not always possible to obtain legislative or like documents specifying the ownership or extent of the territories in question or showing the exact location of provincial boundaries. It then becomes necessary, in attempting to reconstruct the position, to take into consideration all the evidence and additional information made available through historical and logical interpretation. I would add that evidence in respect of the territorial facet of uti possidetis juris is often very useful in clarifying the delimitation aspect and vice versa.
25. However, in the present case, identifying and proving title to the disputed islands pursuant to uti possidetis juris is greatly facilitated by the fact, in particular, that the King of Spain defined as follows the territories of the provinces of Nicaragua and Honduras on the eve of independence in the reasoning supporting his Arbitral Award of 23 December 1906, made on the basis of the principle of uti possidetis juris as set out in the Gamez-Bonilla Treaty of 1894:
Province of Nicaragua
“[O]n the organization of the Government and Administration of Nicaragua in accordance with the Royal Administrative Statutes of 1786 it consisted of the five districts of Leon, Matagalpa, El Realejo, Subtiaga, and Nicoya, not comprising in this division nor in that proposed in 1788 by the Governor and Intendant Don Juan de Ayssa territories to the north and west of Cape Gracias a Dios, which are at the present day claimed by the Republic of Nicaragua, there being no record either that the jurisdiction of the diocese of Nicaragua reached to that Cape, and whereas it is worthy of note that the last
Governor and Intendant of Nicaragua, Don Miguel Gonzalez Sara- via, in describing the province which had been under his rule in his book Bosquejo Politico Estadistico de Nicaragua, published in 1824 stated that the divisionary line of said Province on the north runs from the Gulf of Fonseca on the Pacific to the River Perlas on the Northern Sea (Atlantic).
[T]he Commission of investigation has not found that the expanding influence of Nicaragua has extended to the north of Cape Gracias a Dios, and therefore not reached Cape Camaron; and that in no map, geographical description or other document of those examined by said Commission is there any mention that Nicaragua had extended to said Cape Camaron, and there is no reason therefore to select said Cape as a frontier boundary with Honduras on the Atlantic Coast, as is claimed by Nicaragua.” (Recueil international des traites du XXe siecle, Descamps et Renault, 1906, pp. 1033-1034; English translation of the Award Made by the King of Spain, as appeared in British and Foreign State Papers, Vol. 100, 1906-1907, quoted in I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906, Vol. I, p. 22.)
Province of Honduras
“[T]he demarcation fixed for the Province or District of Comaya- gua or Honduras, by virtue of the Royal Decree of the 24 July 1791 continued to be the same at the time when the Provinces of Honduras and Nicaragua achieved independence, because though by Royal Decree of the 24 January 1818 the King sanctioned the re-establishment of the chief municipality of Tegucigalpa with a certain degree of autonomy as to its administration, said chief municipality continued to form a district of the Province of Comayagua or Honduras, subject to the political chief of the province; and in that capacity took part in the election, 5 November 1820, of a Deputy to the Spanish Cortes and a substitute Deputy for the Province of Comaya- gua, and likewise took part together with the other districts of Gra- cias, Choluteca, Olancho, Yoro with Olanchito and Trujillo, Tencoa and Comayagua, in the election of the Provincial Council of Honduras, said election having taken place on the 6 November of the same year, 1820.” (Ibid., pp. 21-22.)
“[T]hough at some time it may have been believed that the juris-diction of Honduras reached to the south of Cape Gracias a Dios, the Commission of investigation finds that said expansion of territory was never clearly defined, and in any case was only ephemeral below the township and port of Cape Gracias a Dios, whilst on the other hand the influence of Nicaragua has been extended and exercised in a real and permanent manner towards the afore-mentioned Cape Gracias a Dios, and therefore it is not equitable that the common boundary on the Atlantic Coast should be Sandy Bay as claimed by Honduras.” (Ibid., p. 22.)
26. The validity and binding nature for the Parties of the Arbitral Award made by the King of Spain on 23 December 1906 were confirmed by the Judgment of the International Court of Justice of 18 November 1960. In the present case, Honduras relied upon both those decisions as evidence to support its argument that it possesses sovereign title to the disputed islands pursuant to uti possidetis juris, which can be readily understood by recalling what the Court said in its reasoning in the 1960 Judgment:
“Nicaragua contends that the arbitrator fixed what he regarded as a natural boundary line without taking into account the Laws and Royal Warrants of the Spanish State which established the Spanish administrative divisions before the date of Independence. In the judgment of the Court this complaint is without foundation inasmuch as the decision of the arbitrator is based on the historical and legal considerations (derecho historico) in accordance with paragraphs 3 and 4 of Article II [of the Gamez-Bonilla Treaty].” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, p. 215; emphasis added.)
27. Further, the substance of the evidence and information supporting those two decisions is both considerable in quantity and unassailable in quality and authoritativeness, making it an essential element, in my view, in a judicial determination of the uti possidetis juris situation of the islands disputed by the Parties. I must therefore give it due consideration in this opinion. Such a choice is a necessary one, moreover, as indicated by the jurisprudence in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening):
“in the previous Latin American boundary arbitrations it is the award that is now determinative, even though it be based upon a view of the uti possidetis juris position. The award’s view of the uti possidetis juris position prevails and cannot now be questioned juridically, even if it could be questioned historically”. (Judgment, I.C.J. Reports 1992, p. 401, para. 67.)
28. Honduras also relies on the Royal Warrants of 23 August 1745 and 30 November 1803, as well as the documentation relating to the 1906 Arbitration published in I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906, for example the information contained in the “Report of the Commission of Investigation of the Question of the Boundary between the Republics of Honduras and Nicaragua submitted to His Majesty Alfonso XIII, Arbitrator, on 22 July 1906”, which
was appended to Honduras’s Reply in the case judged by the Court in 1960 (Vol. I, Ann. XI, p. 621).
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29. Thus, to determine whether sovereignty over the disputed islands belongs to Honduras or Nicaragua, the Court must begin with the assess-ment of the uti possidetis juris position of 1821 made by the 1906 Arbitral Award. The islands concerned are not mentioned in the operative part of the Award, but the delimitation of the land boundary between the Parties established by the Award makes it possible to identify precisely which, in the relevant area, are the coasts belonging to Honduras and which to Nicaragua. The Award states 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 Pio 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 southern shore of the said principal mouth with the said Island of San Pio, and also the bay and the town of Cape Gracias a Dios and the arm or estuary called Gracias which flows to Gracias a Dios Bay, between the mainland and the said Island of San Pio.” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, p. 202.)
Further, the Court’s Judgment of 1960 stipulated that:
“The operative clause of the Award, as already indicated, directs that ‘starting from the mouth of the Segovia or Coco the frontier line will follow the vaguada or thalweg of this river upstream’. It is obvious that in this context the thalweg was contemplated in the Award as constituting the boundary between the two States even at the ‘mouth of the river’. In the opinion of the Court, the determination of the boundary in this section should give rise to no difficulty.” (Ibid., p. 216.)
30. It is therefore clear that, according to the uti possidetis juris position as established by the Arbitral Award with the force of res judicata, the coast of Honduras stretches northwards from the extreme common point of the land boundary on the Atlantic coast, situated in the mouth of the principal arm of the River Coco where it flows out in the sea close to Cape Gracias a Dios, up to the boundary with Guatemala, and the coast of Nicaragua extends to the south of the same extreme common boundary point up to the boundary with Costa Rica.
31. The establishment of the endpoint of the land boundary in the mouth of the principal arm of the River Coco where it flows into the sea close to Cape Gracias a Dios determines precisely what were the Parties’ coastlines in 1821 and, accordingly, the reference point allowing for un- problematic application of the notion of “adjacent island” under historical Spanish law. Such a clear situation did not exist for the islands in dispute between El Salvador and Honduras in the waters of the historic Bay of Fonseca referred to in the Judgment. The relationship between the coasts of the three riparian States in the Bay of Fonseca was not as apparent and clear-cut as that existing between the coast of Honduras and Nicaragua in the present case.
32. However, what is of interest in the relevant quotation given by the Judgment is the confirmation that
“when the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or admin-istrative law of the pre-independence sovereign” (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua inter-vening), Judgment, I.C.J. Reports 1992, p. 559, para. 333).
And the jus applied by the Spanish Crown in its American territories made use of a notion of “adjacent islands”, as a general criterion for attributing islands to one or other colonial district or province, whose scope is different from that of the notion of “adjacent island” in contemporary international law.
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33. Under historical Spanish law as applied by the Spanish Crown to its American territories, the notion of “adjacent island” was considerably broader and more flexible than that of “coastal island” in contemporary international law. The 1865 Arbitral Award in the Aves Island (Nether-lands/Venezuela) case demonstrates that the notion of “adjacent island” in Spanish colonial law also covered small islands a long way from the coast, whether or not they were suitable for human habitation or possessed an economic activity or strategic importance. Aves Island (Bird Island) was a small, low-lying rock, located in the middle of the Caribbean Sea, incapable of sustaining permanent habitation and which had never really been occupied. When it was discovered by the Spanish, it was initially included in the territories of the former Audiencia of Santo Domingo and then transferred to the Audiencia of Caracas (Royal Order of 13 June 1786), despite its distance from the coast of the Captaincy- General of Venezuela (see P. Lapradelle et Politis, Recueil des arbitrages internationaux, Vol. 2, pp. 404-406). Clipperton Island, which was also discovered by the Spanish, lies a very long way from the Mexican coast; nevertheless, it was claimed by Mexico as the successor to Spain (Revue generale de droit international public, 1932, Vol. 39, p. 130).
34. The San Andres Islands are also situated a considerable distance from the mainland. Swan Island, which Nicaragua expressly claimed
from the Arbitrator in 1906, lies around 200 kilometres (110 nautical miles) from Cape Camaron. Thus, the fact that the islands in dispute in the present case lie from 27 to 32 miles from the Honduran coast north of Cape Gracias a Dios does not preclude their characterization as “adjacent islands” of the province of Honduras under historical law as applied by the Spanish Crown. Reference can be made, for example, to the 1793 official hydrographical chart of the Mosquito Coast and adjacent islands by Juan de Azoaz submitted by Honduras (Counter-Memorial of Honduras, (CMH), Vol. 3, second part, Map 26). I therefore cannot agree with the finding in paragraph 163 of the present Judgment.
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35. It goes without saying that the general criterion for the attribution of the islands mentioned above was merely a kind of residual rule in that it could be set aside at any time by a specific normative provision to the contrary enacted by the King. By way of example, there was the Royal Warrant of 1803 on the islands of San Andres or the Royal Order of 13 June 1786 on Aves Island. But Nicaragua has offered no evidence of any specific decision by the King departing from that general criterion in favour of the province of Nicaragua in respect of the islands involved in the present case. What Nicaragua has argued in this case is that it was impossible to settle the issue of sovereignty over the cays on the basis of the uti possidetis juris of 1821.
36. The Spanish Crown used a particularly broad and flexible notion of “adjacent island”, an expression which occurs very often in its overseas legislative texts, both for practical reasons and as a matter of principle. In the first place, it sought to protect the integrity of its original title to vast areas — defined by parallels and meridians — which had been set aside for it by Papal Bulls and treaties with Portugal, i.e., “all lands discovered and yet to be discovered” within those areas. Secondly, exploration of the huge expanse of the Americas could only be carried out by stages, and the undertaking lasted for centuries. Finally, the risk had to be avoided of other Powers taking control of territories that were unexplored, unknown, sparsely populated or difficult to defend. And in that respect, the “islands” were certainly the most exposed territories, especially those a long way from the coasts or from Spanish jurisdictional waters.
37. In any event, the role and rule-making importance of the broad and flexible concept of “adjacent island” in Spanish colonial law cannot be doubted. The treaties concluded by Spain in the nineteenth century with the new Republics, including the Republic of Nicaragua (1856) and the Republic of Honduras (1860), attest to that: indeed, they confirm the relinquishment by Spain of its previous title not only to the mainland ter-ritories of the province of Nicaragua and the province of Honduras, but also to the island territory of both provinces as it existed in 1821. Fur-thermore, the Constitutions of the Republic of Honduras and the Republic of Nicaragua also include the expression “adjacent islands” in their respective definitions of national territory.
38. The 1906 Arbitral Award made by the King of Spain delimited a section of the land boundary between the two Parties, but the decision also, barring evidence to the contrary, inevitably determined sovereignty over the island possessions and the Spanish jurisdictional waters adjacent to the mainland. Why? Because in delimiting the land boundary, the Award defined the mainland coast of Honduras in the area concerned as being situated north of the mouth of the River Coco, close to Cape Gra- cias a Dios, i.e., north of approximately the 15th parallel, and that of Nicaragua as being located south of the said river mouth and the 15th parallel.
39. Consequently, the Arbitral Award of 1906 makes it possible to give a legal answer, on the basis of the uti possidetis juris of 1821, to the question of sovereignty over the islands in dispute between the Parties, since the four cays concerned lie offshore north of the 15th parallel and in the vicinity of Honduras’s mainland coast, and closer to that coast than to the Nicaraguan mainland coast south of the 15th parallel. In such a situation, if the general criterion for the attribution of “adjacent islands” in historical Spanish law is taken into consideration, as it should be, there can be no possible doubt that the cays belong to Honduras. The conduct of the Parties during the arbitration proceedings bears out such a conclusion. It therefore follows that I cannot accept the finding to the contrary
by the majority of the Court set out in paragraph 167 of the Judgment.
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40. In the arbitration by the King of Spain, Nicaragua sought to obtain from the Arbitrator a boundary line running along the 85th meridian west, making it into a sort of land, island and maritime boundary with Honduras. Indeed, in its submissions concerning the last part of the boundary line, Nicaragua asked the Arbitrator for the frontier line to continue
“along the middle of the river until it meets the meridian which passes through Cape Camaron and from that meridian until it loses itself in the sea, leaving to Nicaragua Swan Island” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906, Vol. I, p. 624).
The origin of that submission can be traced back to a proposal made by Nicaragua to the Mixed Commission established pursuant to the Gamez- Bonilla Treaty (for the reasoning advanced by Nicaragua at the time and Honduras’s reply within the Mixed Commission, see ibid., pp. 246 and 248; see also in the present case CMH, Vol. 1, Plate 9).
41. If the Arbitrator had accepted Nicaragua’s submission, the disputed islands in the present case would have been “adjacent islands” to the main-
land coast of the province of Nicaragua and, consequently, islands of the Republic of Nicaragua from 1821 by virtue of the UTI POSSIDETIS JURIS. How-ever, the King of Spain rejected Nicaragua’s submission. The Arbitrator’s decision was, as we have just said, to fix the extreme common boundary point of the two Republics in the mouth of the principal arm of the River Coco, where it flows into the sea, close to Cape Gracias a Dios — that is to say practically on the 15th parallel North, and not to the north or the south of that parallel — because, as observed in the Arbitral Award of 1906, the “documents” described Cape Gracias a Dios as the boundary point of the “jurisdictions” which the Royal Decrees of 1745 assigned to the Governors of the provinces of Honduras (Juan de Vera) and Nicaragua (Alonso Fernandez de Heredia) (RECUEIL INTERNATIONAL DES TRAITES DU XXE SIECLE, Descamps et Renault, 1906, p. 1031).
42. It is surprising that the majority does not draw any conclusions in terms of the production of evidence from the combined effect of (a) the 1906 Arbitral Award’s adoption as a limit, on the basis of the uti possidetis juris, of the parallel at Cape Gracias a Dios, and (b) its rejection of the Cape Camaron meridian advanced by Nicaragua. On the contrary, according to the Judgment, the provinces of Honduras and Nicaragua appear to have had, in reality, neither coastlines, nor territorial seas, nor their own adjacent islands, which are said to have been under the control of the joint higher colonial administrative unit, namely the Captaincy- General of Guatemala. This argument — often repeated in legal and arbitral proceedings relating to Central America, for want of anything better — may also be answered by the reasoning of the Arbitral Award made by the King of Spain in 1906, where it is observed that:
“when by virtue of the Treaty with Great Britain in 1786 the British evacuated the country of the Mosquitos, at the same time that new Regulations were made for the port of Trujillo, it was likewise ordained to raise four new Spanish settlements on the Mosquito Coast in Rio Tinto, Cape Gracias a Dios, Blewfields and the mouth of the River San Juan, although it is nevertheless true that these settlements remained directly subject to the Captain-General’s command of Guatemala, both parties agreed to recognize that this fact in no way altered the territories of the provinces of Nicaragua and Honduras, the latter Republic having shown by means of certified copies of despatches and accounts both before and after 1791 the Intendant Governorship of Comayagua superintended everything appertaining to its competence in Trujillo, Rio Tinto and Cape Gracias a Dios” (Recueil international des traites du XXe siecle, Descamps et Renault, 1906, p. 1031; English translation of the Award Made by the King of Spain, as appeared in British and Foreign State Papers, Vol. 100, 1906-1907, quoted in the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Application Instituting Proceedings, Ann. II).
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43. It thus transpires from the King of Spain’s Arbitral Award that, north of the 15th parallel, the coastline and, consequently, the islands adjacent to it belong to Honduras, according to the principle of the uti possidetis juris of 1821; and that south of that parallel, the coastline and, consequently, the islands adjacent to it belong to Nicaragua, since neither of the Parties has produced before the Court a royal decision to the contrary.
44. Therefore, in application of the uti possidetis juris principle, sov-ereignty over the island features south of the 15th parallel North, such as Edinburgh Cay, Morrison Dennis Cays and Cayos Miskitos, appertains to Nicaragua in the same way that sovereignty over the island formations north of the 15th parallel, including the cays in dispute in the present case, appertains to Honduras. Moreover, this conclusion corresponds to the description of the province of Nicaragua provided by the Arbitral Award of 1906, when it noted inter alia that “the Commission of investigation has not found that the expanding influence of Nicaragua has extended to the north of Cape Gracias a Dios” (op. cit., p. 1033; see para. 25 above).
45. The Royal Warrants relied on by Honduras in the present case endorse the Arbitral Award’s finding. The Warrants of 23 August 1745 established, for the purpose of observing and defending the coast, two military jurisdictions answering to the Captaincy-General of Guatemala, one stretching from the Yucatan to Cape Gracias a Dios and the other from Cape Gracias a Dios down to but not including the River Chagres. Juan de Vera, Governor of the province of Honduras, was appointed Commander-General of the royal forces in the province of Honduras, and Alonso Fernandez de Heredia, Governor of the province of Nicaragua, was appointed Commander-General of the royal forces in Nicaragua and Costa Rica (see CMH, pp. 74-76).
46. Further, the Royal Warrant of 30 November 1803 also confirms the role played by Cape Gracias a Dios as the jurisdictional boundary between the provinces of Honduras and Nicaragua by declaring that:
“The King has resolved that the Islands of San Andres and the part of the Mosquito Coast from Cape Gracias a Dios inclusive to the Chagres River shall be segregated from the Captaincy-General of Guatemala and become dependent on the Viceroyalty of Santa Fe.” (CMH, pp. 76-77.)
47. Honduras also produced a diplomatic Note dated 23 November 1844 to Her Britannic Majesty from the Minister representing both Honduras and Nicaragua in which he acknowledged the sovereign right of Nicaragua along the Atlantic coast, but only “from Cape Gra- cias a Dios in the North to the dividing line which separates it from Costa Rica” (CMH, p. 31).
48. I accept that Note as evidence from the Republican period con-cerning the interpretation by the Parties of the uti possidetis juris of 1821, given the date of the Note, its official nature and the authority of its sig-
natory. It is clear from the Note that it is the Republic of Honduras, and not the Republic of Nicaragua, which has sovereignty along the Atlantic coast north of Cape Gracias a Dios by virtue of the uti possidetis juris and, consequently, over the islands in dispute in the present case, which are “adjacent islands” with respect to that Honduran coastline according to historical Spanish law.
D. “Adjacency” Relied on by Nicaragua
49. At the hearings, Nicaragua affirmed that it accepted in principle the application of the uti possidetis juris principle to “island disputes”, whilst ruling it out in the present case. It has relied on this principle in the past, for example in the turtle fisheries dispute. There, Great Britain contended that the decree of 4 October 1864 by the Government of Nicaragua declaring that the islands and islets adjacent to its Atlantic Coast belonged to it and regulating their imports and exports contravened the Zeledon-Wyke Treaty between the two countries. However, Nicaragua replied that the Treaty acknowledged its sovereignty over Mosquitia and, on that basis, it held full sovereignty over the adjacent islands and islets (Reply of Nicaragua, hereinafter referred to as RN, p. 62). Nicaragua is currently advancing a similar argument mutatis mutandis with regard to the islands of San Andres and Providencia in its dispute with Colombia concerning the Barcenas Meneses-Esguerra Treaty of 1928 (CMH, p. 77).
50. So, on what basis does Nicaragua exclude the principle in question in the present dispute? It uses the argument that there is no documentary evidence demonstrating the existence of either Nicaraguan or Honduran title to the islands by virtue of the uti possidetis juris of 1821. I cannot agree with the Applicant in limiting the evidence regarding the principle in this way, as it runs counter to international practice and jurisprudence, including that of the Court (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 388, paras. 44 et seq.). Further, that argument overlooks the system of government used by the Spanish Crown for its American territories and the features of the Spanish historical law that was applied.
51. The fact that the islands in dispute are located north and not south of the 15th parallel makes things decidedly difficult for Nicaragua. I can appreciate that. What then is the solution suggested by Nicaragua in its quest for legal title to the disputed islands? In the second round of oral argument, its counsel invoked “adjacency” without further qualification, that is to say adjacency standing alone. But mere geographical adjacency by itself, without operation of the uti possidetis juris principle or another relevant rule of international law incorporating the criterion, does not constitute territorial title under international law (Island of Palmas case).
52. Moreover, the disputed islands are in the vicinity of and geo-graphically closer to the mainland coast of Honduras than to the coast of the Nicaraguan mainland. It goes without saying that there is equally no ground in international law for Nicaragua’s argument that the islands are Nicaraguan because they are located south of the so-called “Main Cape Channel”.
53. I therefore reiterate my conclusion that the Republic of Honduras has sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay by virtue of both uti possidetis juris and the effectivites which it has demonstrated to the Court’s satisfaction in the present case. Thus the only issue left outstanding is that of acquiescence.
E. Acquiescence by Nicaragua
54. Honduras contends that there was acquiescence by Nicaragua to Honduran sovereignty over the disputed cays; in that respect, it bases itself on the complete silence of Nicaragua in response to Honduran acts of sovereignty concerning the islands. Nicaragua, on the other hand, denies having acquiesced in or tacitly accepted Honduran sovereignty over the cays. Nicaragua explains its silence by the fact that Honduras did not claim the cays until 1982 at the earliest, i.e., after 1977, which Nicaragua regards as the critical date. In its Judgment, however, the Court has identified the critical date with regard to the dispute over the islands as the year 2001 (Judgment, para. 129).
55. If Nicaragua still believed after the Court’s 1960 Judgment regarding the Arbitral Award made by the King of Spain that it was entitled to the islands north of the 15th parallel, that is to say the islands in dispute in the present case, it should have said so earlier. But Nicaragua failed to make that clear either before or after the maritime delimitation dispute crystallized in 1982. When the President of Nicaragua signed the original text of the 1998 Free Trade Agreement, Nicaragua had not yet expressed any claims to the islands in dispute in the present proceedings (Judgment, para. 226). It was not until 21 March 2001 that Nicaragua finally asserted claims to these islands. Yet, in remaining silent over the years, Nicaragua engaged in conduct which could have led Honduras to believe that it accepted the uti possidetis juris position vis-a-vis the disputed islands, as that position had, in my opinion, been binding on the Parties ever since the 1906 Arbitral Award fixed the endpoint of the land boundary at the mouth of the River Coco in the sea close to Cape Gracias a Dios.
56. The total lack of Nicaraguan effectivites on the disputed islands and of any protest by it against the demonstrations of sovereignty by Honduras concerning the islands bears out such a conclusion. In view of this and of the evidence produced before the Court, Nicaragua’s acquiescence to Honduras’s sovereignty over the disputed islands has, in my view, been established. To safeguard the rights claimed in the present proceedings, Nicaragua should, in accordance with international law, have exercised greater vigilance and expressed clearer opposition in respect of Honduras’s acts concerning the islands in question (see Temple
of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, separate opinion of Judge Alfaro, p. 39).
57. The sovereignty of Honduras over the disputed islands by virtue of the uti possidetis juris and the post-colonial effectivites is thus confirmed.
F. Conclusion
The foregoing considerations explain why I am of the opinion that the legal basis for Honduras’s sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay is threefold, the post-colonial effectivites and Nicaragua’s acquiescence reinforcing the legal title to the islands held by the Republic of Honduras since 1821 by virtue of the principle of uti possidetis juris.
II. Delimitation of the Maritime Areas by a Single Maritime
Boundary
A. Rejection of the “Traditional Maritime Boundary” Claimed by
Honduras
Honduras defended the existence of a so-called “traditional” maritime boundary running along the 15th parallel North, through the territorial sea and beyond, based initially on the principle of uti possidetis juris (for the 6 nautical miles of territorial waters from the colonial period) and, subsequently, on a tacit agreement between the Parties concerning all the areas to be delimited by the Court in the present case. Nicaragua, however, contended that no such “traditional maritime boundary” existed, accused Honduras of invoking the said line to avoid an equitable maritime delimitation and requested the Court to proceed with an ex novo delimitation by application of the so-called “bisector” method.
Inasmuch as a principle of international law such as uti possidetis juris is applicable or in the presence of an explicit or tacit agreement between the Parties, it is self-evident that a maritime delimitation carried out according to that principle or within the terms of the agreement cannot be regarded as inequitable in law. In this respect, it is appropriate to recall here that maritime delimitations are primarily effected by means of agreements between the States in question, on the issues of territorial seas, exclusive economic zones and continental shelves that fall under the 1982 United Nations Convention on the Law of the Sea.
Agreements are in fact the method most favoured by the Convention for delimiting the maritime areas recognized in international law and, consequently, for a delimitation of the three areas (territorial sea, exclusive economic zone and continental shelf) by means of a single line, as was requested of the Court by the Parties. The other rule-making parts of the relevant articles of the Convention on the Law of the Sea are only intended to be applied in the event of a lack of agreement between the States concerned.
Honduras was therefore within its rights when it raised, as a preliminary to the ex novo delimitation requested by Nicaragua, the issue of the existence of a “traditional maritime boundary” between the Parties along the 15th parallel of latitude north and asked the Court to take this into account in its delimitation. However, tacit or otherwise, the agreement invoked must evidently have existed at the critical date. It was in this respect that problems arose with the “traditional maritime boundary” on which Honduras relied.
Indeed, having considered all the arguments and the numerous items of evidence produced by Honduras (oil and gas concessions; fisheries activities and regulation; naval patrols; recognition by third States; witness statements in the form of sworn affidavits; bilateral treaties between Colombia and Nicaragua (1928), Honduras (1986) and Jamaica (1993) and exchanges of diplomatic Notes), as well as all the arguments and evidence to the contrary from Nicaragua, the Court concludes that “there was no tacit agreement in effect between the Parties in 1982 — nor a fortiori at any subsequent date — of a nature to establish a legally binding maritime boundary” (Judgment, para. 258).
As is indicated in paragraph 256 of the Judgment:
“The Court has noted that at periods in time, as the evidence shows, the 15th parallel appears to have had some relevance in the conduct of the Parties. This evidence relates to the period after 1961 when Nicaragua left areas to the north of Cape Gracias a Dios following the rendering of the Court’s Judgment on the validity of the 1906 Arbitral Award and until 1977 when Nicaragua proposed negotiations with Honduras with the purpose of delimiting maritime areas in the Caribbean Sea. The Court observes that during this period several oil concessions were granted by the Parties which indicated that their northern and southern limits lay respectively at 14° 59.8′. Furthermore, regulation of fishing in the area at times seemed to suggest an understanding that the 15th parallel divided the respective fishing areas of the two States; and in addition the 15th parallel was also perceived by some fishermen as a line dividing maritime areas under the jurisdiction of Nicaragua and Honduras. However, these events, spanning a short period of time, are not sufficient for the Court to conclude that there was a legally established international maritime boundary between the two States.”
65. On this point, it should be emphasized that the period in question is considerably longer than that in the Gulf of Maine case. In any event, as far as I am concerned, I believe that the evidence submitted by Honduras, notably that concerning the oil and gas concessions and fisheries
regulation and related activities, argues decisively in favour of the idea of the existence of a tacit agreement between the Parties on the “traditional” maritime boundary. The majority of the Court holds a different opinion, which I respect although I do not subscribe to it. It is a judge’s prerogative to weigh and take a position on the evidence presented by the Parties. I shall make just two comments on particular points. The first concerns the Note from the Minister Dr. Paz Barnica of 3 May 1982. I disagree with the interpretation made by the Judgment of that Note. The second relates to Nicaragua’s reaction to the Honduran Note of 21 September 1979 which stated that the seizure at sea of a Honduran vessel by the Nicaraguan navy on 18 September 1979 took place “eight miles to the north of the fifteenth parallel that serves as the limit between Honduras and Nicaragua” (CMH, p. 48, para. 3.38; emphasis added). The Judgment, however, attributes no legal effect to the fact that, in its reply, Nicaragua neither contested nor qualified Honduras’s assertion.
B. Non-application by the Judgment of Succession to the Territorial Waters from the Colonial Period under Uti Possidetis Juris
66. The Court’s conclusion on the non-existence in 1982 of a legally binding “traditional maritime boundary” does not, however, settle all the questions raised by Honduras regarding the 15th parallel of latitude north. There remains that of the succession or otherwise of the Parties to the 6 miles of territorial waters of the colonial period by virtue of the uti possidetis juris of 1821, as a principle of international law.
67. That is also a logical preliminary to the plotting by the Court of an ex novo maritime delimitation line, since Article 15 of the 1982 United Nations Convention on the Law of the Sea attributes a role to “historical titles” in the delimitation of territorial seas, i.e., the first of the areas for which the Parties have requested the Court to establish a single maritime boundary.
68. The Court’s Judgment summarizes as follows the overall position of Honduras in this respect, as set out in the Counter-Memorial:
“Honduras maintains that the uti possidetis juris principle referred to in the Gamez-Bonilla Treaty and the 1906 Award of the King of Spain is applicable to the maritime area off the coasts of Honduras and Nicaragua, and that the line of 15th parallel constitutes the line of maritime delimitation resulting from that application. It asserts that Nicaragua and Honduras succeeded in 1821, inter alia, to a maritime area extending 6 miles . . . and that uti possidetis juris ‘gives rise to a presumption of Honduran title to the continental shelf and EEZ north of the 15th parallel’.” (Judgment, para. 229.)
69. In the Rejoinder, Honduras was even more precise about the issue of the Parties’ succession to the 6-mile maritime area in question:
“The principle of uti possidetis juris provides a legal title to deter-mine maritime (up to six nautical miles during colonial times and independence) and insular sovereignty of Honduras to the north of parallel 15° that passes through Cape Gracias a Dios as confirmed by the Royal Order of 1803. Paragraph 17 of the King of Spain Arbitral Award of 1906 was, therefore, correct when it stated that: ‘In said documents [the Royal Decrees of 1745 and 1791] Cape Gracias a Dios is fixed as the boundary point of the jurisdiction assigned to the above mentioned Governors of Honduras and Nicaragua in the respective capacities in which they were appointed'”. (Rejoinder from Honduras, hereinafter referred to as RH, p. 51, para. 3.60; emphasis in the original.)
70. Honduras thus clearly raised the question of the application of the uti possidetis juris of 1821 to the maritime areas concerned by the present proceedings as an independent issue, i.e., separately from that of the con-stitution of the “traditional maritime boundary” by tacit agreement. In this respect, the Judgment declares that “the uti possidetis juris principle might in certain circumstances, such as in connection with historic bays and territorial seas, play a role in a maritime delimitation” (Judgment, para. 232). In view of the Applicant’s hesitancy on the subject, the Court’s finding confirms the relevant jurisprudence of the 1992 Judgment in the case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening). I fully endorse this point of law which is clarified by the Judgment.
71. However, the Court then dismisses succession to the 6-mile territorial waters of the colonial period (“jurisdictional waters”, to use the Spanish terminology of the time) because, according to the Judgment, Honduras made no persuasive case as to why the maritime boundary should extend along the 15th parallel from Cape Gracias a Dios, but merely asserted “that the Spanish Crown tended to use parallels and meridians to draw jurisdictional divisions, without presenting any evidence that the colonial Power did so in this particular case” (Judgment, para. 232). Thus, in the Court’s view, Honduras did not show that the principle of uti possidetis juris led to a maritime division along the 15th parallel between the 6 nautical miles of territorial waters of the province of Honduras and those of the province of Nicaragua in the colonial era. As is stated in the Judgment (para. 234): “In the circumstances of the present case, the uti possidetis juris principle cannot be said to have provided a basis for a maritime division along the 15th parallel.”
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72. The above findings are ultimately based on a restrictive interpretation by the majority of the scope of the Arbitral Award of 1906 and its res judicata to which I do not subscribe at all. For the majority, the fact that the Arbitrator fixed, on the basis of the uti possidetis juris of 1821,
“the extreme common boundary point on the coast of the Atlantic” at the mouth of the River Coco close to Cape Gracias a Dios does not confirm the existence of a maritime boundary between the Parties along the 15th parallel in respect of the territorial waters of the colonial period. The Parties, however, appear to have followed much broader interpretations, which admittedly do not correspond, both of the scope of the 1906 Arbitral Award and of the uti possidetis juris of the Gamez-Bonilla Treaty of 1894.
73. For example, in the Note of 19 March 1912 sent by the Minister for Foreign Affairs of Nicaragua to the Minister for Foreign Affairs of Honduras, whereby he indicated the reasons for which Nicaragua regarded the King of Spain’s Arbitral Award as null and void, it was stated that:
“[t]he disagreement having been thus defined, the entire portion of the frontier line was left undemarcated from the point on the Cordillera called Teotecacinte to its endpoint on the Atlantic Coast and to the boundary in the sea marking the end of the jurisdiction of the two States. In respect of determining how to draw the disputed portion of the line, it was decided to carry out the provisions of Article III of the treaty cited above.” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vol. I, p. 292; emphasis added.) [Translation by the Registry.] And further:
“It is also a universal principle that awards which are inconsistent in themselves (contradictorias) are without value and inapplicable, and there is an evident inconsistency in this Award when it deals with that section of the frontier line which should separate the jurisdiction of the two countries in the territorial sea, in that, after having laid down that the direction of the frontier is the thalweg or main watercourse of the principal arm of the Coco River, it then declares that the islets situated in that arm of the River belong to Honduras, thus leading to the impossible result of leaving Honduran territory enclaved within Nicaraguan waters, and thus also leaving without effect the line of the thalweg referred to — quite apart from the fact ofdeciding nothing as regards the direction of the frontier line which, according to international law, should show the territorial waters of each Republic as forming part of its respective territories.” (Ibid., p. 294; emphasis added.)
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74. In the present case, Honduras’s position on the question concerned can be summarized as follows: (1) the principle of uti possidetis juris referred to in the Gamez-Bonilla Treaty, as well as in the 1906 Award of the King of Spain, is applicable to the maritime area off the coasts of
Honduras and Nicaragua; (2) the 15th parallel constitutes the line of maritime delimitation resulting from the application of that principle; (3) Honduras and Nicaragua succeeded, in 1821, to a maritime area consisting of a 6-mile territorial sea; and (4) the uti possidetis juris gives rise to a presumption of Honduran title to the continental shelf and exclusive economic zone north of the 15th parallel.
75. My position on each of these elements of the Honduran position is as follows :
Reaction to point (1) : No doubt. At present, as a principle of general international law, uti possidetis juris is applicable to both land and mari-time delimitations, as is upheld by the Judgment. Moreover, the Gamez- Bonilla Treaty constituted a friendly settlement of “all pending doubts and differences” in order to “demarcate on the spot the dividing line which is to constitute the boundary between the two Republics” (Article 1 of the Treaty). The word “boundary” is thus not qualified by the adjective “land”. The practice of the Parties bears out this interpretation, moreover, as the Minutes II of the Mixed Commission of 12 June 1900 effected a demarcation between the two Republics in the part of the Bay or Gulf of Fonseca “contiguous to the coastline of both States without there being a distance of 33 km between their coasts” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vol. I, p. 235). See also the Nicaraguan Note of 19 March 1912 referred to in paragraph 73 above.
Reaction to point (2) : Yes, if the statement is understood to apply to the maritime area of the 6-nautical-mile territorial sea from the colonial period; no, however, as far as the whole of the “traditional maritime boundary” is concerned, as I agree with Nicaragua that title to the exclusive economic zone or the continental shelf is an obviously modern legal notion which did not exist in 1821.
Reaction to point (3) : No doubt, under the principle of uti possidetis juris.
Reaction to point (4): I understand this point as meaning that the uti possidetis juris principle was used to determine the coasts of each Party, which in turn form the basis of the title governing the delimitation between the Parties to the present case of the maritime areas comprising
the continental shelf and exclusive economic zones.
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76. The Judgment of the Court acknowledges — as do both Parties — that the 1906 Arbitral Award fixed the extreme common point of the land boundary which it established on the Atlantic coast. In which case, how can it be said, in the context of application of the uti possidetis juris principle, that nothing in the 1906 Arbitral Award indicates that the 15th parallel of latitude north has been regarded as constituting the boundary line? We have at least one point, the extreme common boundary point on
the Atlantic coast resulting from the Arbitral Award, which is the “starting uti possidetis juris point” of a line delimiting the territorial seas between the Parties and, in that respect, it can definitely be invoked as evidence of succession to a maritime dividing line along the horizontal line of the 15th parallel North for the 6 nautical miles under consideration here.
77. The fact that this point is located in the vicinity of the 15th parallel North close to Cape Gracias a Dios and not, for example, on a parallel or a meridian passing close by Cape Camaron, Punta Patuca, Cape Falso or Sandy Bay is admittedly a circumstantial indication or piece of evidence, but undoubtedly a very significant one for a judge or arbitrator involved in applying the uti possidetis juris principle. The Chamber formed for the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras; Nicaragua intervening) case understood this point well when it adopted methods of assessing and interpreting the evidence that were in keeping with the essentially historical character of that principle in Latin America.
78. It is correct to say that the Arbitral Award of 1906 as such did not carry out any maritime delimitation in the Atlantic, but much less so to state that it “is not applicable” to the present maritime delimitation between the Parties. In my opinion, in any event, the Award is essential for identifying which of the islands belongs to which of the Parties and for examining the legal basis, the title, of their respective claims in the maritime delimitation exercise which forms the subject of these proceedings. It is necessary to examine the reasons for the Arbitral Award in order to gain a proper view of the uti possidetis juris position in 1821 along the Parties’ coasts and in their respective adjacent maritime areas, because the land dominates the sea. And the land — the coastal fronts of the Parties — was defined by the 1906 Arbitral Award and not by the resources of the exclusive economic zones located out beyond the territorial seas.
79. As to the different issue of the scope of the res judicata of the 1906 Arbitral Award, what is required is to apply, where appropriate, the jurisprudence of the Court concerning the relationship between the opera-tive part and the reasoning of a judgment, since res judicata does not apply only to what is materially indicated in the operative part of an award or a judgment (see, for example, the case concerning Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para. 26).
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80. I cannot follow the majority when the Judgment practically ignores the historical, geographical and legal facts set out in the reasoning of the 1906 Arbitral Award. I would like to emphasize the importance of the documentation in that arbitral case for applying the principle of uti pos- sidetis juris to the present maritime delimitation, documentation submitted to the Court in 1960 by the Parties, who were the same as the Parties to the present proceedings (see I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vols. I and II).
81. An examination of the reasoning of the Arbitral Award and the documentation in question — to which the Respondent referred, moreover — makes it possible to appreciate the full importance of the historical role of Cape Gracias a Dios as the projection separating the coast of the province of Honduras from that of the province of Nicaragua, and thus to arrive at an image of the area of the 6-mile territorial sea appertaining to one or other of these Spanish colonial provinces prior to 15 September 1821.
82. Such an image is, moreover, sufficiently precise — for the purpose of applying the uti possidetis juris principle — to acknowledge and assert that it was indeed at the parallel running through Cape Gracias a Dios (i.e., the 15th parallel North) that, on the day of their independence, the area of the mainland territorial sea of the Republic of Honduras came to an end and the area of the mainland territorial sea of the Republic of Nicaragua began, to the north and south respectively. We are, of course, talking about a “delimitation” from 1821 and not a “demarcation” at sea in 2007. As was said in the 1906 Arbitral Award
“Whereas, from what is inferred from all the foregoing, the point which best answers the purpose by reason of historical right, of equity and of a geographical nature, to serve as a common boundary on the Atlantic Coast between the two contending States, is Cape Gracias a Dios for the Atlantic Coast, and further, as this Cape fixes what has practically been the limit of expansion or encroachment of Nicaragua towards the north and of Honduras towards the south.” (Recueil international des traites du XXe siecle, Descamps et Renault, 1906, p. 115.)
83. I sometimes have the impression, reading the Judgment, that the Court demands too much as evidence of uti possidetis juris and as a defi-nition of what constituted, at the beginning of the nineteenth century, a maritime delimitation of the territorial waters between the adjacent coasts of two States. One must ask whether it was customary at the time, even in Europe, to effect collateral delimitation of territorial seas by means of precisely defined lines in treaties concluded in due form. I have some doubts in that respect. Moreover, in the present case, the evidence, infor-mation and geography are particularly clear for uti possidetis juris to be applied to the delimitation of the first 6 miles of territorial sea between
the Parties’ mainland coasts in question.
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84. Honduras asserts that the 15th parallel is the dividing line between the Parties of the maritime area represented by the 6-mile territorial waters inherited from Spain. It relied inter alia on the fact that, in accordance with the Royal Decree of 23 August 1745, which originally divided jurisdiction in the maritime area concerned between the Governor of Honduras and the military command of Nicaragua, and with the Royal Decree of 1803, Cape Gracias a Dios marked the limit between the two jurisdictions, and also on the tendency of the Spanish Crown to use parallels and meridians when drawing up jurisdictional divisions.
85. In addition, Honduras submitted geographical maps to the Court as evidence appended to its Rejoinder (in particular a “Geographical Plan of the Viceroyalty of Santa Fe de Bogota, New Kingdom of Granada, 1774” (RH, Vol. 2, Ann. 232)), together with the opinions of two experts, namely:
(1) an “Opinion by Professor Doctor Jose Manuel Perez-Prendes Munoz- Arraco on Spanish Captaincies-General and Governments in the Historical Overseas Law. General Competencies. Its Practice in Lands and Seas Belonging Today to the Republic of Honduras” (ibid., Vol. 2, Ann. 266); and
(2) an “Opinion by Professor Doctor Mariano Cuesta Domingo on the Question of the Honduran Rights in the Waters of the Atlantic Ocean. Maritime Limits of Honduras in the Atlantic Ocean” (ibid., Ann. 267).
86. The conclusions of Professor Perez-Prendes’s opinion are as follows:
“1. The powers granted by Overseas legislation to the Captaincies- General, included, unequivocally and at all times, the actions that were considered timely on the part of those authorities in the maritime areas, wherever those coasts and seas existed.
2. The Captaincy-General of Guatemala, to which the Government of Honduras belonged, exercised the cited competencies from specifically Honduran ports.
3. Such exercise was constant from the XVI century up to the XIX century, and especially fulfilled through the reconnaissance, control and defense of the area of the Atlantic Ocean which washes ashore the current Republic of Honduras and specifically also in the area of Cape Gracias a Dios.
4. The demarcations indicated for the cited exercise included both land and maritime spaces, and it was a common understanding that these border lines that separated the corresponding land surface areas, prolonged into the sea.
5. It has also been testified in this opinion how the islands included in the maritime spaces cited in the previous conclusion, fell under the authority and power of the military authorities that were quartered in the land that was considered prolonged (following its land limits) into the maritime space that washed its coasts.” (RH, Vol. 2, Ann. 266.)
87. As regards the second opinion, Professor Mariano Cuesta Domingo concluded that:
“[t]he parallel that goes through Cape Gracias a Dios (which can very well be designated as parallel 15) is the one that in a perfectly, geometrically, astronomically, geographically and historically and legal (Indiano) form, constitutes the limit of Honduran waters in the
South in a clear and indubitable manner” (ibid., Ann. 267).
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88. During the oral arguments stage, Nicaragua attacked the first of these expert opinions, claiming that it showed serious methodological deficiencies and invoking in this respect the following instruments: (1) the Royal Order on coastguards of 22 May 1802; (2) the Instruction for the regulation of coastguard vessels in the Indies of 1803 ; (3) the Ordinance on privateering vessels of 1796, amended in 1801 ; and (4) the Ordinance concerning the regime and military governance of sailors’ registration (matricula del mar) of 1802. I do not see in what way the texts of these instruments, submitted to the judges during the hearings, alter the general conclusions resulting from the opinions delivered by the Honduran experts.
89. However, Nicaragua did not confine itself to discussing items of evidence. It presented arguments in the form of a proposition entitled “The sea, one area under one jurisdiction in the Spanish monarchy”, accompanied by a historical interpretation regarding “The regime of the sea adjacent to the coasts of the Captaincy-General of Guatemala” and another entitled “The settlements on the Mosquito Coast were never under the jurisdiction of the Intendancy of Comayagua (Honduras).” For the interpretation of these historical events, I stand by what emerged from the Arbitral Award of 1906 (see for example paragraph 42 above).
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90. However, we have still to address the central thrust of Nicaragua’s argument, whereby it asserts that under the former Spanish monarchy “the whole sea” formed a single area, over which a special centralized jurisdiction — that of the navy — exclusively applied. Having made this thunderous assertion, the argument goes on to state that jurisdiction over the territorial sea belonged to the Spanish authorities in Madrid and not to the local authorities in the Americas, including the Captaincies- General, contending finally that the Spanish Crown’s claim to a 6-mile territorial sea “tells [us] nothing with regard to the limit of this territorial sea between the Provinces of Honduras and Nicaragua” (Judgment,
para. 231; emphasis in the original). We are thus confronted with a kind of syllogism.
91. But it is a syllogism which does not stand examination. Let us begin by pointing out that the major premise is incorrect, because historical Spanish law — in any case in the eighteenth century (Royal Decree of 17 December 1760) — already distinguished between the waters under Spanish jurisdiction adjacent to the coast (the 6 miles) and the rest of the sea, without prejudice to the existence of historic waters or bays such as those of the Gulf of Fonseca on which Nicaragua has a coast. In these circumstances, how can it be claimed that the sea formed a “single area” for the Spanish Crown at that time?
92. If the first premise is incorrect, the second is no more accurate, since the Spanish Kings of the age of enlightenment were, as elsewhere in Europe, at the head of an absolute monarchy in which the King’s will alone was the beginning, middle and end of all jurisdiction. Everything flowed from his person, with the assistance of ministers, organs and administrations on both sides of the Atlantic. Thus all jurisdictions, both general and specific, territorial and functional, governmental and judicial, civil, military and naval, were all organized around and as a function of the King’s person and, in that respect, were all centralized in the person of the King both for Spain and for the Crown’s overseas territories. All the powers or jurisdictions of an organ, a representative or an official were exercised on behalf of the King and were no more than the delegation of the sovereign’s power.
93. But what does Nicaragua seek to prove with this argument? Quite simply to deprive the Republics of Honduras and Nicaragua of the benefit of the 6-mile maritime area enjoyed by the Spanish provinces of Honduras and Nicaragua at the end of the colonial period. In other words, Nicaragua denies to the republics created from the former “colonial provinces” of Honduras and Nicaragua this maritime area as part of their territorial inheritance from Spain, as the predecessor State, in order to rule out the application of the principle of uti possidetis juris in the present case. Thus, the republics established on the territory of the former “colonial provinces” in the Americas received no more than “dry coasts” under the uti possidetis juris principle, in the same way, possibly, as the “Viceroyalties” and “Captaincy-Generals”, since the proposition that the sea was a single area administered by a centralized jurisdiction in Madrid does not make it possible to distinguish between the “colonial provinces” and the other administrative territorial entities established by the Spanish Crown in the Americas.
94. But no such thing could come out of the organization of jurisdictions and authority under historical Spanish law, as the definition of the active subjects and the object of the principle of uti possidetis juris belongs to international law and not to historical Spanish law. The role played by the genitive “juris” in the principle only concerns the evidence for the existence of a 6-mile territorial sea off the coasts of the territories of the Spanish Crown in the Americas. Its role does not go any further. It follows that the centralized administration or otherwise of the sea by the Spanish Crown is of no relevance whatsoever for the determination, in international law, of the ability of the successor States of the Spanish Crown to benefit, from the date of their independence, from the said 6-mile territorial seas as part of their “territorial inheritance” from Spain, as the predecessor State.
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95. The Nicaraguan argument is therefore based on a conceptual con-fusion between the respective roles of the principle of uti possidetis juris in international law and the historical Spanish law of the Americas. Moreover, it does not correspond to the reality of historical Spanish law either. The fact that the Spanish royal navy was reorganized in the second half of the eighteenth century, in an attempt to turn it into a more effective instrument for the accomplishment of its own duties as defined by the King, does not in any way change the fact that even the royal navy was represented on land in the Americas by the heads of navy departments, for example at the Apostaderos of Havana and Cartagena de Indias. Otherwise, how could the navy have contributed effectively, as an additional force, to the defence and security of the Crown’s American territories and to the prevention and suppression of smuggling in the Caribbean Sea, to the benefit of the Royal Treasury? In these circumstances, to talk about “exclusive titles” makes little sense. Everything fell within the exclusive title held by the King himself, that is to say his title over the royal navy and over everything else.
96. The existence of a special jurisdiction of the navy did not in any way prevent the exercising of governmental, military or maritime powers within the 6-mile territorial sea by a Captaincy-General or a provincial Government (the latter were also strengthened by the introduction of the Intendant system in the eighteenth century). The jurisdiction at sea of a Captain-General or a Governor was not curbed by that of the Spanish royal navy. The scope of jurisdictions varied according to what the King decided when appointing office holders or during their mandates.
97. The Royal Warrant of 23 August 1745 appointing Colonel Juan de Vera
“Governor and Commander-General of the Province of Honduras and Commander-General for the command of the said Province of Honduras and of the territory comprised between the limit of jurisdiction of the Governor and Captain-General of the Province of Yucatan up to Cape Gracias a Dios” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Vol. I, p. 382),
and that naming Alonso Fernandez de Heredia “Governor and Com-
mander-General of Nicaragua and Commander-General of the territory comprised from Cape Gracias a Dios until the River Chagres” (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua, Vol. I, p. 379) concerned the ongoing war situation, the security and defence of the coasts and the suppression of illicit trade.
98. Furthermore, a captain-general of a captaincy or a governor of a province could be called upon at any time to perform activities of all kinds both on land and at sea. In this respect, the royal directives of 23 August 1745 to Colonel Juan de Vera are particularly instructive (ibid., p. 385). Moreover, the directives could authorize the exercise of power beyond the 6-mile area, as Nicaragua implicitly acknowledged in the following passage of its Reply:
“[T]he Monarch’s orders to his Captains General and other authorities to oppose piracy, the corsairs and trade in contraband in a more or less defined geographical area, by no means can be confused with acts of attribution of territorial jurisdiction on the high seas.” (RN, p. 66, para. 4.61.)
99. Thus within a given area, be it on land or at sea, several jurisdictions co-existed, with each such holder exercising the functions or activity that had been entrusted to him by general legislation or the specific instructions of the monarch. Conflicts of jurisdictions were frequent. They were settled by the higher authority and, in the last resort, by the monarch himself.
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100. Nicaragua finally fell back on the non-division of the 6-mile mari-time area of the territorial sea from the colonial period. It did so in the following terms:
“[t]he only thing that can be said is that, at the date of independence, a joint sovereignty of the riparian republics arose over the waters of the Spanish Crown . . . and persists until such time as the areas cor-responding to each of them are delimited” (CR 2007/3, p. 35, para. 82).
This amounts to acknowledging that the Republic of Nicaragua and the Republic of Honduras did indeed succeed to the 6 miles of territorial waters from the colonial period off Cape Gracias a Dios under the principle of uti possidetis juris, without prejudice to the division between the Parties of those waters, which, according to Nicaragua, had yet to be made.
101. Let us point out, in this respect, that in the area of territorial sea to be delimited between the mainland coasts of the Parties to the present case, the legal circumstances and the circumstances of physical and political geography are not those obtaining in the Gulf of Fonseca. “Non- division”, purely as such, does not mean that we are dealing with a situation of joint sovereignty. For that, the undivided waters would have to be in a situation or state of community, which does not exist in the present case. The Chamber was very clear on that point in 1992 (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 599, para. 401).
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102. The conclusions of the expert opinions submitted by Honduras have strengthened my conviction — based on all the documentation in the case — that the line of the 15th parallel North (i.e., the continuation out to sea of the parallel roughly corresponding to Cape Gracias a Dios) was — at least during the eighteenth century — the dividing line between the jurisdictions of the two Spanish colonial provinces in question, including the 6 miles of territorial waters of the period (Royal Decree of 17 December 1760).
103. If one examines all the points of law in the case, it stands to reason that the situation obtaining in 1821 was one in which, according to the uti possidetis juris principle of international law, the line of the parallel running through Cape Gracias a Dios acted as a dividing line between the new republics as regards the 6-mile area of territorial waters in the Caribbean Sea from the former colonial period.
104. The Parties knew this well in 1821, as is shown by the diplomatic Note of 1844 (paragraph 47 above), and it was confirmed for them by the 1906 Arbitral Award. It is true that neither of the Parties filed Spanish documents or maps with the Court concerning the path of a dividing line of the 6-mile area along the 15th parallel, but both Parties acted, immediately after independence, as if such a maritime division genuinely existed between the two provinces of the colonial era.
105. Having confirmed this conclusion, there is no reason to look any further. The conduct of the Parties from then on has constituted an authentic expression of the uti possidetis juris of 1821. As the Chamber of the Court declared in 1992, if the uti possidetis juris can be interpreted by international adjudication and by treaty, there seems no reason why it should not be by way of acquiescence or recognition by the Parties (I.C.J. Reports 1992, p. 401, para. 67).
106. Finally, the Judgment does not seem to take the slightest note of the fact that uti possidetis juris is a principle which automatically applies (I.C.J. Reports 1992, p. 565, para. 345). On independence, the colonial administrative divisions in question on land or at sea are transformed into international boundaries “by the operation of the law”. No additional deliberate act is required.
107. Furthermore, since the demarcation carried out in 1962 by the
OAS Mixed Commission, the Parties have been aware that the endpoint of the land boundary resulting from the uti possidetis juris is situated in the main channel of the mouth of the River Coco where it meets the sea, in the vicinity of Cape Gracias a Dios, at exactly 14° 59.8′ N (14° 59′ 48″ N) and 83° 08.9’W (83° 08′ 54″ W), this main channel being “easterly oriented” (see the Mixed Commission’s report and map), i.e. running towards the sea at around the 15th parallel North.
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108. However, the Judgment takes a different view from that of the author of this opinion. Indeed, in paragraph 232, the Court demands more in terms of evidence from Honduras. In the Court’s view, Honduras ought to have shown that the maritime boundary should follow the 15th parallel from Cape Gracias a Dios, and produced evidence that the colonial Power had used parallels and meridians in this particular case.
109. But such a standard is too demanding in terms of assessing an uti possidetis juris situation concerning two States which, in 1821, had the same understanding of that principle as regards the maritime area con-cerned. This bears out my criticism of the Judgment for opting for a rather too mechanical and “unhistorical” approach in its assessment of the evidence regarding application of the uti possidetis juris principle.
110. As a consequence of this finding, the Judgment holds that Hon-duras does not possess a “historic title” which could be invoked in relation to the interpretation and application of Article 15 of the 1982 United Nations Convention on the Law of the Sea for the purposes of delimitation of the mainland territorial sea in the present case. It goes without saying, on the basis of the above considerations, that I hold a contrary view to this finding by the Court. Indeed, that is the first reason for my vote against subparagraphs (2) and (3) of the operative clause.
C. The Ex Novo Delimitation of Maritime Areas Effected by the Judgment
1. The Parties’ maritime claims and the question of defining the “area in dispute”
111. In the present case, the Parties have adopted fundamentally dif-ferent approaches towards the delimitation of their “single maritime boundary” in the Caribbean Sea. Nicaragua contends that there is no existing maritime boundary and requests the Court to draw a boundary line. As for Honduras, it maintains that an accepted traditional maritime boundary line already exists along the 15th parallel and asks the Court to confirm that boundary line accordingly. These positions of principle have governed the respective written and oral pleadings of the two Parties and also the terms of their final submissions.
112. Thus Nicaragua requests the Court to adjudge and declare that:
“[t]he bisector of the lines representing the coastal fronts of the two Parties as described in the pleadings, drawn from a fixed point approximately 3 miles from the river mouth in the position 15° 02′ 00″N and 83° 05′ 26″W, constitutes the single maritime boundary for the purposes of the delimitation of the disputed areas of the territorial sea, exclusive economic zone and continental shelf in the region of the Nicaraguan Rise”.
113. Honduras, for its part, requests the Court to adjudge and declare that:
“[east] of the point at 14° 59.8’N latitude, 83° 05.8′ W longitude, the single maritime boundary which divides the respective territorial seas, exclusive economic zones and continental shelves of Honduras and Nicaragua follows 14° 59.8′ N latitude, as the existing maritime boundary, or an adjusted equidistance line, until the jurisdiction of a third State is reached”.
114. For the delimitation, one initial consequence of these claims by the Parties is that the “area in dispute” as defined by them does not correspond to the “area” in which the maritime delimitation must be effected, taking account of the coastal geography concerned by the delimitation. The bisector line claimed by Nicaragua on the basis of the entire coastal fronts of both Parties, the line of the 15th parallel North claimed by Honduras and, for the purposes of the argument, the 80th meridian West form a triangular “area in dispute” which is an entirely artificial one in the sense that it is divorced from the reality of the geographical, legal and historical circumstances of a case which concerns the delimitation of maritime areas situated north and south of the mouth of the River Coco close to Cape Gracias a Dios.
115. The majority of the Court appears to presuppose that an equal or almost equal sharing of the above triangle would represent, in the present circumstances, an equitable outcome. I do not agree. It is true that the ratio between the areas of the triangle attributed to Nicaragua and those attributed to Honduras is approximately 3:4(1: 1.3) in favour of Honduras (including a significant extension in terms of territorial sea because of the islands). However, we cannot ignore the fact that, while the bisector claimed by Nicaragua was certainly designed to back up its relatively recent political ambitions (1994-1995) to go beyond the 82nd meridian and reach the 17th parallel near Rosalinda Bank, it lacked any legal credibility, since the bisector in question was based on: (1) all the coastal fronts of both States regardless of their relationship with the area of delimitation and, moreover, (2) those fronts were replaced by straight lines which bore no relation to the physical geography of the coast.
116. To support its bisector line the Applicant, Nicaragua, chose to invoke equity or equitable principles relating to the delimitation of the continental shelf and the exclusive economic zone, while leaving the par-ticularities of the delimitation of the territorial sea in the background. Honduras, for its part, defended the traditional maritime line along the 15th parallel between Cape Gracias a Dios and the 82nd meridian as the boundary for the three areas in dispute.
117. In defining the “area in dispute”, the bisector line claimed by the Applicant is a device that creates a distortion and an inequitable outcome in this case. The Judgment does not correct this effect. It therefore does not discourage this sort of claim by States. It should be added that the Respondent’s main position did not initially help to restore a more balanced definition of the “area in dispute” as regards its southern limit (Honduras’s alternative submission of an adjusted equidistance line was presented at the hearings). Consequently, the lines principally claimed by the Parties resulted in the area in which their respective claims overlap being situated north of the 15th parallel.
2. The law applicable to maritime delimitation
118. Honduras (5 October 1993) and Nicaragua (3 May 2000) having become parties to the 1982 United Nations Convention on the Law of the Sea, the Convention is now in force between the Parties. The relevant articles of the Convention are therefore applicable as treaty law in the present dispute, as is very rightly indicated by the Judgment (para. 261). However, the weight of tradition being what it is, the overall structure of the Judgment is based more on the case law than on the text of the Con-vention. For example, it is difficult to explain, given the geomorphologi- cal problems raised by the mouth of the River Coco, why there is no mention in the Judgment of Articles 7 (2) and 9 of the Convention. In contrast, the references to case law are numerous, often to the detriment of the particular nature of delimitation of the territorial sea.
3. Areas to be delimited and the methodology adopted by the Judgment: the abandonment of equidistance and delimitation in stages in favour of the bisector method
119. In paragraph 262, the Judgment addresses the various maritime areas to be delimited by the Court by means of a single maritime boundary and comes to certain conclusions on the methodology to be used in the delimitation. The Judgment acknowledges (1) that in the western part of the area to be delimited, the Parties’ mainland coasts are adjacent and that, for some distance, the boundary will delimit exclusively their territorial seas; (2) that the four islands in dispute north of the 15th parallel, attributed by the Judgment to Honduras, and Edinburgh Cay, the Nica- raguan cay south of the 15th parallel, are entitled to generate their own territorial seas for the coastal States. It also indicates that, as regards these islands, no claim has been made by either Party for maritime areas other than the territorial sea.
120. I accept those clarifications, but what I find considerably less acceptable are the findings of the Judgment as regards the methodology to be used in order to determine the course of the single maritime boundary, not, it is true, in terms of the principles, but as regards their application in the present case. Thus I readily admit that the Court, in order to perform the task at hand, must first and foremost apply the rules on delimitation of the territorial sea, without forgetting that the ultimate task is to draw a single maritime boundary that will also be valid for other purposes.
121. However, the Judgment does not do this. In fact, what it does is to reject out of hand the equidistance method that is specifically and expressly referred to in Article 15 (Delimitation of the territorial sea) of the 1982 Convention on the Law of the Sea, relying on the existence of “special circumstances” in order to consider the issue thereafter in terms of the Convention’s rules on delimitation of the exclusive economic zone (Art. 74) and the continental shelf (Art. 83) — which, where no agreement exists between the Parties, only oblige the Court to apply such delimitation “on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution” — and indeed in terms of the customary rule which it calls the “equitable principles/relevant circumstances method” (para. 271 of the Judgment).
122. Consequently, the efforts of recent years to make judicial decisions on maritime delimitations more objective by firstly drawing a provisional equidistance line, even if this subsequently has to be adjusted in the light of “special” or “relevant” circumstances, have thus been set aside. There is thus a return to the idea of SUI GENERIS solutions for each delimitation, in other words a relapse into pragmatism and subjectivity.
123. The least that can be said is that the Judgment does not put the equidistance method at the centre of the approach to be followed in the present case for the course of the single maritime boundary, except for the segment delimiting the territorial seas of the islands. According to the Judgment, a series of difficulties made it impossible for the Court to iden-tify base points and construct a provisional equidistance line for the single maritime boundary delimiting maritime areas off the Parties’ mainland coasts (para. 280). Let us see what these “difficulties” are.
124. First, the Judgment recalls that neither Party has as its main argument a call for a provisional equidistance line as the most suitable method of delimitation, before subsequently acknowledging that, at the end of its oral argument, Honduras presented a provisional equidistance
line as an “alternative solution” to its favoured one of using the 15th par-allel. This line (with an azimuth of approximately 78° 48′) is drawn from a pair of base points fixed at the low-water line of the apparent easternmost endpoint of the mainland Honduran and Nicaraguan coasts at Cape Gracias a Dios, as identified from a recent satellite photograph. The line was adjusted by Honduras to take account of the 12-mile territorial seas of the cays lying north and south of the 15th parallel (see para. 276 of the Judgment).
125. The Parties’ positions regarding the equidistance method differ considerably. One of the Parties, Honduras, as we have just indicated, put forward a provisional equidistance line drawn from two base points, situated on the mainland coasts of one and the other of the Parties, and also asked the Court in its final submissions, as an alternative to the line of the 15th parallel, for an adjusted equidistance line. Nicaragua, on the other hand, maintained throughout the proceedings and in its final submissions that the method of equidistance and special or relevant circumstances would not be appropriate for the purposes of delimitation in the present case because, it contended, of the instability of the mouth of the River Coco. For Nicaragua, the Court has to construct the whole of the single maritime boundary on the basis of the bisector of the angle formed by two straight lines representing the entire coastal front of both Parties (azimuth 52° 45′ 21″).
126. The Judgment then considers the difficulties of a geographical and geological nature indicated by the Parties. In this respect, it is emphasized that Cape Gracias a Dios, where the land boundary ends, is a sharply convex territorial projection abutting a concave coastline on either side to the north and south-west. In such a geographical configuration, the pair of base points to be located on either bank of the River Coco would, according to the Judgment, assume considerable dominance in constructing an equidistance line and, given their close proximity to each other, any error in situating them would become disproportionately magnified in the resulting equidistance line, especially as it travelled out from the coast. Moreover, the sediment carried to and deposited at sea by the River Coco is said to have caused its delta, as well as the coastline north and south of the Cape, to exhibit a very active morpho-dynamism. And the Judgment concludes that continued accretion at the Cape might render any equidistance line so constructed today arbitrary and unreasonable in the near future (Judgment, para. 277).
127. The Judgment also adds that the Parties themselves have not claimed or accepted any viable base points at Cape Gracias a Dios, and that differences apparently still remain between the Parties as to the inter-pretation and application of the King of Spain’s 1906 Arbitral Award in respect of sovereignty over the islets formed near the mouth of the River Coco and the establishment of the extreme common boundary point on the coast of the Atlantic (Judgment, paras. 278 and 279).
128. Of all the considerations and difficulties mentioned in the Judgment in order to justify the Court’s decision not to use the equidistance method in the present case, even as an initial provisional measure, the only ones which in my opinion might be upheld are those concerning the geographical configuration of the coastline on either side of Cape Gra- cias a Dios and the marked instability of the delta of the River Coco at its mouth. These are two elements of physical geography to be taken into account by the Court in the delimitation exercise, but, in my view, neither of them justifies abandoning the equidistance method in favour of one such as the bisector, which creates far more serious problems of law and equity than equidistance.
129. The solution advocated by the 1982 Convention on the Law of the Sea, where physical circumstances of this type are present, is to use the “straight baselines” method to identify the base points (Articles 7 and 9 of the Convention), rather than a method such as the bisector, which is unable in the present circumstances to safeguard the principle of non- encroachment. When the Court ruled out the equidistance method in 1969, it did so precisely in view of the coastal configuration concerned, to avoid the areas situated off the coastal front of the other State from being amputated by the equidistance line. In the present case, the opposite occurs. In fact, over the first segment of the delimitation line, the equi- distance method would make it possible to safeguard non-encroachment or ensure non-amputation of the areas situated off the coastal fronts of both Parties, whereas the bisector method selected by the Judgment, on the contrary, proves incapable of doing this as far as Honduras is concerned.
130. The macro-geographic basis underlying the bisector method means that it is not suitable for delimitations in proximity to coastlines and, consequently, for the delimitation of territorial seas. However, in the present case, the line of the single maritime boundary, which begins by delimiting only the territorial seas of the two States for a certain distance, passes too close to the mainland coast of Honduras because of the use of the bisector method. This line is therefore inequitable and it is so in a maritime area in which security and defence interests are bound to prevail over economic considerations. That is one of the reasons why I reject the application of the bisector method to the first segment of the line of maritime delimitation established by the Judgment.
131. And I am all the more adamant in my rejection because I am by no means convinced that “the construction of an equidistance line from the mainland is not feasible”, as asserted by the Judgment (para. 283). During the oral proceedings, both Parties presented sketch-maps which showed various provisional equidistance lines. Today, the technology exists to do this (satellite photography, for example), and the legal means are available (straight base lines) to overcome any difficulties that might arise, for the base points selected, from the instability of the mouth of the
River Coco for the foreseeable future. Thus I do not consider it “neces-sary”, to use the term included in Article 15 of the 1982 Convention, to abandon the equidistance method.
132. Lastly, I cannot accept the argument that the existence of only two base points on the mainland coasts in question of Honduras and Nicaragua has to be regarded as a circumstance that precludes the equi- distance method. It is a reflection of the coastal geography, and not in any way a factor of inequity. Otherwise, in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), the Court would not have selected only two base points as “land-based anchorage points to be used in the construction of the equi- distance line” (Judgment, I.C.J. Reports 2002, p. 443, para. 292). In the maritime areas a long way from the coast, any possible inequities resulting from the application of the equidistance method could, moreover, be corrected by an equitable adjustment of the provisional equidistance line.
4. The bisector in the Judgment and its construction (coastal fronts)
133. The Judgment of the Court has not adopted the delimitation lines requested by either of the Parties. With regard to Honduras, it rejects the line of the 15th parallel as well as an adjusted equidistance line. But the Judgment also rejects the bisector of the angle formed by two lines rep-resenting the entire coastal front of each State (azimuth 52° 45′ 21″) requested by Nicaragua, those lines being straight lines constructed by the Applicant through a process of “planing” or “smoothing” the coastal geography of Honduras.
134. However, the Judgment has chosen to use the bisector method to determine the course of the single maritime boundary established by the Court itself. In this respect, the Court begins by acknowledging that the use of the bisector — the line formed by bisecting the angle created by the linear approximations of coastlines — has proved to be a viable substitute method in certain circumstances “where equidistance is not possible or appropriate” (Judgment, para. 287). It should, nevertheless, be noted that the Court’s jurisprudence referred to in support of this first finding does not concern cases in which delimitation of the territorial sea was at issue.
135. The Judgment then turns to the relative advantages of the two delimitation methods under consideration for assessing the “actual coastal geography”, concluding that the bisector method seeks to approximate the relevant coastal relationships, but does so on the basis of the macro- geography of a coastline as represented by a line drawn between two points on the coast, hence the need for care to be taken to avoid “completely refashioning nature” (Judgment, para. 289). This part of the Judgment is a little too abstract. The Court should have assessed the virtues of the bisector method in relation to the actual “coastal configuration” in the present case in order to arrive at the area where the delimitation has to be made. Indeed, as scholarly opinion has not failed to emphasize:
“The bisector method is possible only where two clearly distin-guished coastlines form a sharply defined angle; if not, it rests on artificially reconstructed coastal directions.” (Prosper Weil, Perspec-tives du droit de la delimitation maritime, 1988, p. 65; The Law of Maritime Delimitation — Reflections, 1989, p. 59.)
136. But the Judgment becomes more concrete when, having examined the various circumstances raised by Nicaragua to justify the use of the bisector method in the present case, including the equitable nature of its bisector, it declares:
“The Court is not persuaded in the present case as to the pertinence of these factors and does not find them legally determinative for the purposes of the delimitation to be effected. Rather, the key elements are the geographical configuration of the coast, and the geo- morphological features of the area where the endpoint of the land boundary is located.” (Para. 292; emphasis added.)
137. Thus there is in the Judgment a total symmetry between the rea-soning which has led the majority to reject the equidistance method and that which has persuaded it to adopt the bisector method. For my part, I do not think that there must necessarily be a cause and effect relationship between these two methods, or that a bisector is the only possible means of achieving an equitable solution in this case.
138. I see just the opposite, since in terms of maritime areas, the bisector method imposes on one Party alone, Honduras, the burden of a geo-graphical and morphological situation that is shared by both Parties, as it exists along the entire coastline, both north and south of the mouth of the River Coco, as the Judgment itself acknowledges. Added to that, the Judgment does not make any equitable adjustment of the bisector line in favour of Honduras, to compensate for this burden which Honduras has to bear alone.
139. The considerations of the Judgment regarding the choice of the Parties’ coastal fronts for the purposes of the application of the bisector method by the Court do not suggest that any factor of equity in favour of Honduras was taken into account. It is true that the Court dismisses, as we have said, Nicaragua’s proposal that the coastal front should extend for Honduras from Cape Gracias a Dios to the border with Guatemala and for Nicaragua from Cape Gracias a Dios to its border with Costa Rica, because such a proposal would give rise to “an exaggeratedly acute angle to bisect” (azimuth 52° 45’21”). In fact, the straight line running from Cape Gracias a Dios to the border with Guatemala as pro-
posed by Nicaragua would cut off a significant portion of Honduran territory falling north of this line (Judgment, para. 295). The rejection of this line therefore has nothing to do with equity.
All the Court has done is to restore the actual coastal geography of Honduras which had been “planed” in the Applicant’s proposal. Fur-thermore, the choice by the majority of the bisector method has had the effect of extending the relevant coasts for the purposes of the delimitation, since in order to apply that method, “coastal fronts” have to be used instead of “base points”. Hence the relevant coast from Cape Falso to Laguna Wano put forward by Honduras was rejected in favour of longer coastal fronts.
140. Similarly, a coastal front extending from Cape Camaron to the Rio Grande would, according to the Judgment, lead to overcompensa- tion because the line would run entirely over the Honduran mainland and thus would deprive the significant Honduran land mass lying between the sea and the line of any effect on the delimitation (para. 297). The azimuth of the angle of the Camaron-Rio Grande bisector is 64° 92′.
141. But the Court also rejects the front from Cape Falso to Punta Gorda, even though it indisputably faces the disputed area, as the Judgment itself acknowledges. It does so, according to the Judgment, on the grounds that its length (some 100 kilometres) is not sufficient to reflect a coastal front more than 100 nautical miles out to sea, especially if account is taken of how quickly to the north-west the Honduran coast turns away from the area to be delimited after Cape Falso, as it continues past Punta Patuca and up to Cape Camaron. Cape Falso, according to Honduras, constitutes the major “turn” in its mainland coast (para. 296).
142. It must be borne in mind that the azimuth of the angle of the Cape Falso-Punta Gorda bisector is even so 70° 54′. But that was not yet enough for the majority. Finally, the Court has settled on a Honduran coastal front extending from Cape Gracias a Dios to Punta Patuca and a Nicaraguan front from Cape Gracias a Dios to Wouhnta, which the Judgment considers to be of sufficient length “to account properly for the coastal configuration in the disputed area” (Judgment, para. 298). The bisector of the angle formed by these two coastal fronts has an azimuth of 70° 14′ 41.25″. This is the azimuth of the bisector in the Judgment.
143. Yet if we compare this azimuth in the Judgment with that of a provisional equidistance line (approximately 78° 48′) drawn from base points situated north and south of the mouth of the River Coco, we note that the difference between the two azimuths is more than 8°. That explains a great many things, including my rejection of the two segments of the single maritime boundary based on the Judgment’s bisector. The geographical and geomorphological difficulties referred to by the Court cannot justify the choice of a delimitation method that is so inequitable for one of the Parties. The result of the application of the bisector method in fact provides confirmation that it is not a neutral means made necessary in order to overcome the physical problems that are shared by both Parties’ relevant coastal fronts.
144. A difference of 8° is a huge disparity. I cannot accept it as the equitable solution advocated by the 1982 United Nations Convention on the Law of the Sea, especially when it is combined with breaches of the principle of non-encroachment in the first sector of delimitation. In my view, beyond the islands, an equitable solution would be an equidistance line drawn from the mainland (azimuth approximately 78° 48′), with pos-sibly some adjustments of the line towards the north, but well to the south of the Judgment’s bisector line (70° 14′ 41.25″).
145. Let it also be noted that the coast between Cape Falso and Punta Patuca is a part of the Honduran coastline oriented towards the north-east, which does not directly adjoin the space or area for delimitation. I had always thought that the coasts concerned by a delimitation constituted an objective geographic fact which did not change according to the delimitation method used by the judge. In this Judgment, however, that assumption seems to have been abandoned, since the coasts concerned by the present delimitation expand and contract depending on the method chosen or even the azimuth selected.
5. Application of equidistance to the delimitation around the islands
146. My criticism of the single maritime boundary line in the Judgment only concerns the segments which follow the bisector selected by the Court. It thus does not apply to the segment of the line which effects the delimitation around the islands. In this section of the maritime boundary, the Court has fully applied Articles 3, 15 and 121 of the United Nations Convention on the Law of the Sea of 1982, which constitutes the law in force between the Parties. Nicaragua’s claim that would have enclosed the islands attributed to Honduras within a territorial sea of 3 nautical miles was consequently rejected by the Judgment.
147. Each of the islands concerned — Bobel Cay, Savanna Cay, Port Royal Cay and South Cay for Honduras and Edinburgh Cay for Nicaragua — is accorded a 12-mile territorial sea, and the overlapping areas between these territorial seas of Honduras and Nicaragua, both north and south of the 15th parallel, are delimited by application of the equi- distance method. The Court first drew a provisional equidistance line, using the co-ordinates for these islands as the base points for their territorial seas, and then constructed the median line in the overlapping areas. Lastly, having established that there were no special circumstances warranting an adjustment, it adopted this provisional line as the line of delimitation (para. 304). The course of the delimitation line lies partly south of the 15th parallel, as the existence of any kind of maritime boundary along that parallel, based on the tacit agreement of the Parties, is rejected by the Judgment (see above).
6. The demarcation by the Mixed Commission of 1962 and the starting-
point of the single maritime boundary
148. The two Parties agreed in their written pleadings that, in view of the continued eastward accretion of Cape Gracias a Dios as a result of alluvial deposits, the starting-point of the maritime boundary to be drawn by the Court should be located 3 nautical miles seaward from the mouth of the River Coco. However, two differences remained between them: (1) from where on the River Coco those 3 miles should be measured ; and (2) in what direction. Moreover, during the oral proceedings and in its final submissions, Nicaragua requested the Court to adjudge and declare that “[t]he starting-point of the delimitation is the thalweg of the main mouth of the River Coco such as it may be at any given moment as determined by the Award of the King of Spain of 1906″ (Judgment, para. 19).
149. However, the two Parties left the Court the task of establishing the starting-point of the single maritime boundary. This starting-point was set by the Judgment 3 miles out to sea from the point identified in the River Coco by the Mixed Commission in 1962, as Honduras wished, but it has been placed along the azimuth of the bisector, as proposed by Nicaragua (Judgment, para. 311). The co-ordinates of the starting-point thus decided by the Court are 15° 00′ 52″ of latitude north and 83° 05′ 58” of longitude west (subparagraph (2) of the operative clause).
150. I disagree with the location of this point as decided by the Judg-ment because, in my view, it should have been a point equidistant from the base points situated north and south of the mouth of the River Coco. The point chosen by the majority is not a neutral one in relation to the principal claims of the Parties. Moreover, although it does not prejudge the negotiations between the Parties referred to below, it could nonetheless make these more difficult.
151. In contrast, I endorse the Court’s finding that the Parties must negotiate in good faith with a view to agreeing on the course of the delimitation line in the territorial sea between the endpoint of the land boundary as established by the 1906 Arbitral Award and the starting- point of the maritime delimitation in the present Judgment (subpara- graph (4) of the operative clause).
7. The endpoint of the single maritime boundary, bilateral treaties and
third States
152. The solution provided by the Judgment to the question of defining the endpoint of the maritime boundary gives rise to even more serious problems than those concerning the starting-point. In its written pleadings, Nicaragua explains that it draws its bisector up to the area of the seabed occupied by the Rosalinda Bank, in which area the claims of third States come into play (Judgment, para. 313). Further, Nicaragua’s final submissions refer to the delimitation of areas “in the region of the Nica- raguan Rise”, without saying anything about the endpoint (Judgment, para. 19).
153. For its part, Honduras in its pleadings suggests that Colombia has interests under various treaties that would be affected by a delimitation continuing beyond the 82nd meridian. All the maps produced by Honduras seem to take the 82nd meridian as the implied endpoint to the delimitation, including that displaying Honduras’s adjusted equidistance line (Judgment, para. 313). In its third final submission, Honduras asks the Court to draw the maritime boundary “until the jurisdiction of a third State is reached” (Judgment, para. 19). In the light of the wording of this final submission, as well as the written pleadings and maps presented by Honduras, that expression cannot be interpreted as modifying the position that the endpoint for the delimitation cannot be located beyond the 82nd meridian.
154. In paragraphs 314 to 319 of the Judgment, the Court considers the various possibilities open to it as regards the question of the endpoint of the line and analyses the potential third-State interests beyond the 82nd meridian, namely those of Colombia and Jamaica. The Court arrives at the conclusion that it cannot draw a delimitation line that would intersect with the line established by the 1993 Treaty between Colombia and Jamaica, but that it can state that the maritime delimitation between Honduras and Nicaragua extends beyond the 82nd meridian without prejudicing Colombia’s rights under its treaty with Nicaragua of 1928 and with Honduras of 1986.
155. Hence the Judgment states that
“[t]he 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” (para. 319 of the Judgment and p. 761, sketch-map No. 7 of said Judgment).
To my great regret, I cannot be as certain as the Judgment with regard to this finding. That the Court can “delimit the maritime boundary” in the present case is one thing, but that it can do so beyond the 82nd meridian without affecting the rights of third States is quite another.
156. It is true that, in its reasoning, the Judgment adds the following important detail: “[the Court’s] consideration of these interests is without prejudice to any other legitimate third party interests which may also exist in the area” (para. 318). The legitimate interests of third States “in the area” delimited by the Judgment would thus seem duly protected. However, there remains the question of the rights and legitimate interests of third States in the maritime areas adjacent to the area that has been delimited. The presence of Nicaragua north of the 15th parallel and east of the 82nd meridian can only prejudice the rights and interests of Colombia, since the latter is no longer protected by the delimitation line of the 1986 Treaty with Honduras and is therefore exposed to claims from Nicaragua to the south and east of that line. This is the reason why,
in my opinion, the delimitation east of the 82nd meridian in the Judgment could impair the rights and legal interests of third States that were not parties to the present case.
157. Moreover, I am also opposed to the delimitation east of the 82nd meridian because Honduras has invoked in this case the maritime delimitation treaty concluded with Colombia in 1986 which is still in force between the two States and registered with the Secretariat of the United Nations. Yet the delimitation effected by the Judgment takes no account of that treaty concluded between the Respondent in the present case and a third State. That is surprising. Why? Because the dispute regarding the treaty in question was not included by the Applicant, Nicaragua, within the subject of the dispute as defined in its Application instituting these proceedings, nor did it ask the Court, in its final submissions, to rule on any legal aspect of the dispute between the Parties concerning that treaty.
158. In the light of these considerations, going beyond the 82nd merid-ian implicitly involves taking a position on a dispute which does not fall within the subject of the one here and which consequently was not addressed by the Parties during the present case. Yet this raises a juris- dictional issue deserving of particular consideration which is absent from the Judgment. A maritime delimitation line in itself cannot settle a dispute concerning the treaty-making power of States and the validity of the treaties thus concluded.
159. Can the Court, within the context of the present case, take deci-sions on the maritime delimitation between the Parties which have the effect of laying to one side for all practical purposes the 1986 Treaty between Honduras and Colombia without determining beforehand the status of that treaty? I do not think so, since according to Articles 74 and 83 of the 1982 United Nations Convention on the Law of the Sea, the delimitation of the exclusive economic zone and of the continental shelf must be effected “on the basis of international law, as referred to in Arti-cle 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”.
8. Conclusion
160. I have voted against subparagraphs (2) and (3) of the Judgment’s operative clause because I believe that the line of single maritime delimi-tation contained in the Judgment does not entirely comply with the relevant requirements of the 1982 United Nations Convention on the Law of the Sea, except as regards the section around the islands (the second section of the line).
161. For the first section, which begins by delimiting for a certain dis-tance the Parties’ mainland territorial seas, it is obvious that the general rule of equidistance contained in Article 15 of the 1982 Convention has not been applied. This has been rejected for the first time in the Court’s jurisprudence in relation to the territorial sea, and from the start of the delimitation exercise, in favour of a bisector which is unable to secure the principle of non-encroachment with regard to Honduras’s mainland coasts. In the Judgment, the bisector method chosen is justified on the grounds that the configuration of the mainland coasts in question and the instability of the mouth of the River Coco are said to constitute “special circumstances” within the meaning of the second sentence of the above- mentioned Article 15. I cannot accept this justification, since the remedy for such situations under the 1982 Convention is not the bisector method, but that of straight baselines (Art. 7, para. 2, and Art. 9 of the Convention). That being so, and the Judgment having rejected the historic titles (uti possidetis juris) relied upon by Honduras, it is not in any way “necessary” to delimit the territorial sea other than by the median line (equidistance method) provided for in Article 15 of the 1982 Convention.
162. As regards the third section, which delimits only the exclusive economic zone and the continental shelf, the bisector in the Judgment is likewise unable, in my view, to achieve an equitable solution. Firstly, the construction of the bisector makes it necessary to bring into play a Hon- duran coast (from Cape Falso to Punta Patuca) which does not directly adjoin the area of delimitation. Secondly, and above all, the azimuth of the angle of the Judgment’s bisector line is not justified by the relationship between the coasts directly involved in the delimitation, nor by the historical circumstances of the dispute. A bisector line where the azimuth of its angle favours one of the Parties by a difference of 8° compared with the azimuth of the angle of the provisional equidistance line drawn from base points situated north and south of the River Coco is not an equitable result, since in the present case, the Judgment invokes no “relevant circumstance” that would warrant adjusting the provisional equidistance line on such a scale. This is particularly true when one bears in mind that the circumstance of the instability of the coasts and river mouth referred to above is common to the coastal fronts of both States. Finally, the fact that the line delimiting the third section extends beyond the 82nd meridian raises jurisdictional questions concerning the treaty concluded in 1986 between Honduras and Colombia, and as regards Colombia’s rights and legal interests in the maritime areas lying south and east of the delimitation effected by that treaty.
(SIGNED) SANTIAGO Torres Bernardez.

DECLARATION OF JUDGE AD HOC GAJA

While I am in agreement with the rest of the operative part of the Judg-ment and with most of the reasons given, I do not share the view that maritime areas lying south of the 14° 59.8’N parallel should be attributed to Honduras as part of its territorial sea.
According to Article 3 of the United Nations Convention on the Law of the Sea (UNCLOS), “[e]very State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles”. While Honduras has generally exercised this right to a full extent, it has constantly considered that the territorial sea pertaining to the cays in the Media Luna group does not extend in a southerly direction beyond the 14° 59.8’N parallel. This is a choice that a State is perfectly entitled to make under UNCLOS. By so fixing the southern border of its territorial sea, Honduras made in any case sure that all the cays, rocks and reefs in the area were comprised within its territorial waters. One advantage of the claimed delimitation was its relative simplicity.
The final submissions of the Government of Honduras still reflected the position that its territorial sea would not cross the 14° 59.8’N parallel. By accepting this, the Court would have avoided giving “a disproportionate effect … to an insignificant maritime feature”, as the Court stated when attributing to Qit’at Jaradah a territorial sea of less than 12 nautical miles. This was done also when the delimitation affected on the one hand Bahrain’s territorial sea and on the other Qatar’s exclusive economic zone (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 104 and 109, para. 219). A similar approach was taken by the Arbitral Tribunal in the Eritrea/Yemen case (United Nations, Reports of International Arbitral Awards (RIAA), Vol. XXII, p. 371, para. 162).
(Signed) Giorgio GAJA.
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8.2.6. Course of the maritime boundary
320. The line of delimitation is to begin at the starting-point 3 nautical miles offshore on the bisector (see paragraph 311 above). From there it continues along the bisector until it reaches the outer limit of the 12-nautical-mile territorial sea of Bobel Cay. It then traces this territorial sea round to the south until it reaches the median line in the overlapping territorial seas of Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua). The delimitation line continues along this median line until it reaches the territorial sea of South Cay, which for the most part does not overlap with the territorial sea of Edinburgh Cay. The line then traces the arc of the outer limit of the 12-nautical-mile territorial sea of South Cay round to the north until it again connects with the bisector, whereafter the line continues along that azimuth until it reaches the area where the rights of certain