A. Introduction
As noted by Kolb, the application of the law in relation to maritime delimitation is determined largely by the facts which play a disproportionately significant role in decisions in this area compared to other areas of law.Footnote 1 This case is no different in that respect, the decision on the delimitation was shaped largely by the geomorphological circumstances of the case. In particular, the changing shape of the river Coco delta both determined the method to be used in drawing a delimitation line and that the start point for that line should be some miles from the coast. Also of relevance is the fact that the coasts of Nicaragua and Honduras are, where they meet, roughly perpendicular and convex. This shape is exaggerated by the cape formed by the mouth of the River Coco at Cape Gracias a Dios which ‘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.’Footnote 2
B. Background
The Court was asked to determine two interrelated primary issues: sovereignty over a number of islandsFootnote 3 and delimitation of a single maritime boundary between the parties. The relationship between these two issues hinged on the fact that the islands lay in the vicinity of any likely boundary and, as they could generate maritime zones of their own, they would likely have an impact on the location of the eventual boundary line. To a degree the dispute arose from the historical context—both States had been part of the Spanish empire gaining independence in the early 19th century. The treaties granting independence referred to each party's sovereignty over its land and maritime areas, but the boundaries between the two States were not fixed. The two States made a number of attempts at agreeing boundaries, which ultimately led to the conclusion and entry into force of a general boundary treaty: the Gámez-Bonilla Treaty of 1896. Article II of this treaty provided for the application of uti posseditis juris and Article I for the establishment of a Mixed Boundary Commission to define the boundaries based, in effect, on that principle. The Commission met between 1900 and 1904 and fixed approximately one third of the Boundary—that portion which extends from the Gulf of Fonseca on the Pacific Ocean to the Portilla de Teotecacinte. The dispute over the remaining section of the boundary was submitted to King Alfonso XIII of Spain who, in his decision of December 1906, set the boundary extending from Portillo de Teotecacinte to the mouth of the River Coco at Cape Gracias a Dios. In his decision King Alfonso took the principal arm of the river as setting the boundary, with Nicaragua gaining the land on the river bank to the south of this arm of the river and Honduras gaining all islands in that arm of the river and the land to the north of it. In 1912, Nicaragua challenged the validity of King Alfonso's award. Several attempts to resolve the dispute failed and a number of border incidents occurred in 1957, resulting in the matter being taken up by the Council of the Organization of American States (OAS).Footnote 4 This led to an agreement to submit the dispute to the International Court of Justice. The Court in turn found the 1906 award to be valid and binding.Footnote 5 As the parties still could not agree on how to implement the 1906 award they requested assistance from the Inter-American Peace Committee. It established a Mixed Commission which completed the delimitation of the boundary in 1962. The question of the maritime boundary, however, remained unsettled and largely undiscussed until the late 1970s. At this point a number of incidents arose, beginning in 1979 when Honduras complained that Nicaragua had attacked a Honduran fishing boat in Honduran waters north of the 15th parallel. This parallel, Honduras argued, served as a boundary. Following this incident both States passed legislation which inter alia asserted jurisdiction over the same body of water.Footnote 6
Various incidents and exchanges took place over the next few years with both parties making assertions as to the location of the boundary. These included the publication by both parties of maps covering, inter alia, the disputed area and which prompted diplomatic responses in each case from the other party to the dispute. Of particular note in these exchanges was that Honduras repeatedly asserted that a boundary was tacitly agreed as lying on the 15th parallel north and Nicaragua repeatedly denied any agreement. In 1996 Honduras and Nicaragua established an ad hoc Commission with the aim of entering into an interim agreement on a common fishing zone which would remove the threat of capture of fishing boats operating in the disputed area. That initiative failed, as did the subsequent attempt to renew bilateral negotiations through the establishment of a Mixed Commission under a Memorandum of Understanding in 1997. Nicaragua asserted these negotiations were brought to a halt in 1999 when Honduras notified Nicaragua of its intent to ratify its 1986 maritime delimitation treaty with Columbia. These various incidents and the failure to agree a delimitation of the maritime zones gave rise, ultimately, to this action in which the International Court of Justice was requested to make the delimitation in accordance with the provisions of the 1982 United Nations Convention on the Law of the SeaFootnote 7 (UNCLOS) to which both States were party.Footnote 8
C. Principle Elements of the Court's Judgment
1. Sovereignty over Disputed Islands
Nicaragua, in its submission, asked the court to determine ‘the course of the single maritime boundary between the areas of territorial sea, continental shelf and exclusive economic zone’. Before the Court could address this issue, however, it had to address a number of preliminary matters. Principle amongst these was the question of sovereignty over certain islands found in the vicinity of the boundary. This question was not expressly included in the initial submissions, but as both parties did in effect claim sovereignty over certain islands it became apparent in the course of proceedings that the question had to be resolved before the boundary could be delimited.
As the issue was not included in the initial application to the Court, the Court had to determine whether or not this, essentially new, claim was admissible. Although the Court noted that it was for the applicant to set out the matter in dispute at the start of proceedingsFootnote 9 and that it had in the past held new claims introduced during proceedings to be inadmissible,Footnote 10 it also noted that it had in previous cases decided that new claims which were ‘implicit in the application’Footnote 11 or which arose directly from itFootnote 12 were admissible. In this case, as the boundary could not be drawn without consideration of the effect of any rocks or islands and such effect could only be considered if sovereignty was settled, the Court found that the question of sovereignty over the islands was ‘included in the original claim in substance’Footnote 13 and so was admissible.
Secondly, as Nicaragua and Honduras did not specifically name all features over which sovereignty was to be determined, the Court had to distinguish between the features it would decide on and those it would not. In essence the Court distinguished between those features that met the definition of islands provided by Article 121 of UNCLOS, (Bobel Cay, Savanna Cay, Port Royal Cay and South Cay) and other maritime features which may not have been permanently above water. It drew a further distinction between those features over which sufficient evidence had been produced to enable the Court to determine sovereignty and others. As the Court noted, the lack of evidence available to it meant that it was only appropriate for the Court to determine sovereignty over the four cays named above. (The parties also claimed sovereignty over an island in the mouth of the river Coco but the Court refused to rule on that question because of the changing nature of the river mouth which meant the island could disappear or join the near bank.)
The question, then, before the Court was: on what basis could sovereignty be determined? Nicaragua claimed that the islands were not assigned at independence and that therefore sovereignty must be established through the application of other principles, and that, on the basis of adjacency, the islands belong to it. This title, it argued, was reinforced by the recognition of its sovereignty over the islands by third States. Nicaragua also argued that Honduras's claims to title failed because they rested upon effectivités which Nicaragua argued can not be substituted for original title. Honduras claimed original title over the islands—Bobel Cay, Savanna Cay, Port Royal Cay and South Cay and smaller islands and cays on the basis of the application of uti posseditis juris, as these islands, it argued, lay above the boundary which extends from the land boundary established on independence of the two States. Honduras argued further that effectivités in the form of legislative and administrative acts confirm its original title. It also argued that if the court found that there was no original title then those same effectivités constituted a superior title to Nicaragua's claim.
While the Court noted that uti posseditis juris could in theory have provided an answer even in relation to offshore islandsFootnote 14 in this case it did not, for three reasons. First, there was no evidence that Spain had allocated the islands to any particular State; secondly, the islands were located at too great a distance from the coastline to assume their allocation to either State on the basis of adjacency; and thirdly, no evidence was led of colonial effectivités in relation to the islands. As the Court noted, this meant that sovereignty had to be decided on the basis of post-colonial effectivités. It noted that what was required to prove control depended on the size of the features and the nature of any disputed claims.Footnote 15 The Court then examined the claims of the two parties and noted that only Honduras sought to rely on legislative acts; these were, however, found to be inconclusive on the question of sovereignty as they lacked specific indication of applicability to the islands in question. However, Honduras also provided evidence of a range of other activities which the Court found did constitute evidence of effectivités. These included evidence of the application of its criminal laws in the area—which the Court found to be persuasive as the acts related to criminal activities taking place on the islands in question. They also included evidence of action to control immigration to the islands—which the Court found to constitute evidence of effectivités even though the activity did not start until the late 1990s. In this instance the Court noted the relevance of a lack of equivalent action by Nicaragua as significant. Evidence of fisheries regulation through the issuing of licences to fish and through the control of building on the islands was also found to be effective, in particular as the licences were issued by Honduras in the belief that it had title to the fisheries springing from its title to the islands.Footnote 16 However, the evidence of both parties as to the exercise of naval patrols in the area was found to be insufficient to prove effectivités in the area and the evidence both produced as to oil concessions were found to be irrelevant. Equally Nicaragua's evidence relating to negotiations over turtle fishing with the UK, in particular a map produced in connection with those negotiations, were rejected by the Court because the evidence was inconclusive on the question of the belief of the UK as to Nicaraguan sovereignty over the cays in question. In sum then, only one party, Honduras, actually produced convincing evidence of effectivités and it produced evidence of a consistent pattern of effectivités which though ‘modest in number’Footnote 17 demonstrated that it had the necessary intention to act as sovereign.Footnote 18 The evidence was therefore deemed sufficient to effect sovereignty. Crucially it was found that Nicaragua had not objected to those acts it was aware of. This failure to object underscored the value of the evidence of effectivités produced by Honduras, leading the Court to find that Honduras had sovereignty over the four islands.
2. Delimitation of the Maritime Boundary
Turning then to the question of maritime delimitation, the Court was faced with a number of arguments. First, Honduras argued that a traditional boundary existed along the 15th parallel, having been established either on the basis of uti posseditis juris (which the Court rejected for lack of supporting evidence) or because Nicaragua had tacitly agreed to this traditional boundary through both its failure to object to Honduran actions north of that parallel and through its own actions, for example, in granting oil concessions up to that point. The Court noted that evidence of a tacit agreement had to be compelling because any line that existed could serve several different possible purposes—it could be an agreed boundary, an agreed temporary boundary, an agreed boundary for specific purposes, or an agreed provisional line—and that the evidence produced was not compelling. Thus the Court decided that a traditional line could not be said to exist. It therefore had to delimit the boundary.
Again the Court was faced with a number of issues to decide. These ranged from the appropriate means of delimiting the maritime boundary, to determining the start and end points of the delimitation, and to determining the breadth of the territorial sea to be accorded to the four islands. The primary task was to decide the appropriate means of delimiting the single maritime boundary and to carry out that delimitation. The Court's task was made somewhat simpler in that the parties agreed that the applicable law for determining the maritime boundary was provided by UNCLOS, though as the Court noted the delimitation of a single maritime boundary is not governed by law so much as by State practice. The Court also noted, as it had before,Footnote 19 that the criteria used for delimiting such a boundary had to be such as not to afford priority to the needs of any one of the relevant maritime zones. One method for ensuring this would be the application of the equidistance special circumstances rule to the delimitation of the whole boundary. The Court considered the appropriateness of this method by addressing the question of delimitation of the maritime zones in two sections. The first related to delimitation of the territorial sea, provided for by Article 15 of UNCLOS. The Court reiterated a point made in the Qatar/Bahrain case, that the ‘most logical’ starting point in the implementation of Article 15 was to draw an equidistance line as a preliminary step and then to decide on possible adjustment of the line taking account of special circumstances.Footnote 20 The second section related to the joint delimitation of the Exclusive Economic Zone (EEZ) and the Continental Shelf. Here the applicable law was to be found in Articles 74 and 83 of UNCLOS, which provide for delimitation ‘on the basis of international law’ to ‘achieve an equitable result’. Again the Court had previously indicated that this could be arrived at by using the equidistance special circumstances rule,Footnote 21 but as it also noted, this approach should not be assumed to have ‘automatic priority over other methods of delimitation’.Footnote 22 Having laid out the logical legal starting point for delimitation and established that the same method could be used for both portions of the maritime boundary, the Court then turned to consider the impact of the geography and geomorphology of the relevant area.
Delimitation of a single maritime boundary should naturally begin at the coast; in this case that would mean the natural starting point would be in the vicinity of the mouth of the river Coco. The river mouth, however, moves annually which, in part, explains why neither party had in fact called for the use of the equidistance line as the ‘most suitable method of delimitation’. As the Court noted, the nature of the river Coco meant that using an equidistance line could render the boundary inequitable in future as the land boundary would shift over time. The nature of the river mouth also meant it was impossible for the Court to establish base points for use in delimiting a single maritime boundary based on an equidistance line. This difficulty was added to by the fact that the Parties still did not agree on how to implement King Alfonso's Arbitral Award of 1906 in relation to the mouth of the river. These factors made it impossible for the Court to construct a provisional equidistance line as the basis for delimiting the single maritime boundary as a whole. The Court then turned to examine the possible use of an equidistance line in relation to the territorial sea where the impact of the shape of the coastline would be lessened.Footnote 23 In this case it found, for the first time in its jurisprudence,Footnote 24 that the same special circumstances outlined above meant that it could not apply the equidistance approach here either, though as it noted ‘equidistance remains the general rule’.Footnote 25
The method the Court adopted then to delimit the maritime boundary was that proposed by Nicaragua in its submissions to the Court: the bisector line. As discussed in the main judgment, the bisector line can be used as an approximation of equidistance in circumstances where it ‘is not possible or appropriate’ to use the equidistance line. The bisector line has been used previously in a number of delimitations. For example, it was used in the Tunisia/Libya Case,Footnote 26 where any possible base points to be used for delimiting the boundary could not lie on an equidistance line; and in the Gulf of Maine,Footnote 27 where the start point for the delimitation was not on an equidistance line and where the small islands that could potentially have been used as base points were unsuitable for that purpose. This latter point is similar to the circumstances the Court faced in the present case, where base points were unsuitable because of the changeable nature of the coastline. As the Court noted, its aim in using both methods is the same: to ensure ‘an equal division of areas’ to the parties where their claims overlap.Footnote 28 Both are also designed to ‘be faithful to the actual geographical situation’,Footnote 29 and must therefore be based on the States' ‘relevant coasts’.Footnote 30 As the Court noted, because the bisector line is based on the macro-geography of the coasts, rather than drawn using base points, ‘care must be taken to avoid “completely refashioning nature” ’.Footnote 31 These points led the Court to reject Nicaragua's arguments that various other factors such as the incidence of natural resources and access to the main navigable channel in the area dictated the use of the bisector method. Instead it restated the fact that this approach should be used because of ‘the geographical configuration of the coast, and the geomorphological feature of the area where the endpoint of the land boundary is located’.Footnote 32 Arriving at a final conclusion on the position of the bisector line required the Court to determine the relevant coasts. These, the Court decided, lay between Punta Patuca on the Honduran side and Wouhnta on the Nicaraguan side, with the meeting point located at the point fixed by the Mixed Commission at Cape Gracias a Dios in 1962. The Court declared that the ‘resulting bisector line has an azimuth of 70°14′41.25″ ’.Footnote 33
The bisector could not, however, be used to delimit the entirety of the boundary line because of the effect of the maritime zones of the four islands discussed above. The Court recognized Honduras's claim to a 12-nautical-mile territorial sea around these islands and that giving effect to these rights led to overlap in the claimants' maritime zones. It used the equidistance special circumstances rule to delimit the boundary in this area, finding that there were no special circumstances necessitating moving the boundary from the equidistance line.
The final issues the Court had to consider were where the start and end points of the boundary lay. The parties agreed that, because of the continual movement of the mouth of the River Coco and the continual accretion of Cape Gracias a Dios, the starting point for the boundary should be three nautical miles from the ‘mouth’ of the river, but they did not agree on where that point should be measured from nor in which direction the three-nautical-mile measurement should be taken. The Court noted that there was judicial support for beginning a delimitation some distance out to sea where there was ‘an uncertain land boundary terminus’,Footnote 34 referring to the Guinea/Guinea-Bissau award,Footnote 35 and upheld Honduras's claim that the line should be measured three miles from the point fixed by the 1962 Mixed Commission, as possible alternative solutions proposed by Nicaragua were problematic. This left the maritime boundary between the end of the land boundary as set in the King of Spain's 1906 Arbitration and the start point of the maritime boundary as set by the Court to be determined. The Court held that the parties were to negotiate in good faith with the aim of agreeing the delimitation of this part of the boundary.
With regard to the end point of the boundary, the Court was faced with three options: give no decision on the end point save that it occurs where the interests of third States come into play (the Court would be bound to come to this conclusion if delimiting the end point would require it to first rule on the rights of another party not before the Court);Footnote 36 decide that the boundary did not extend beyond the 82nd meridian as suggested by Honduras; or decide that there are no third party rights beyond that point and so the line can extend beyond the 82nd meridian. The Court also noted that if the last of these options were taken the end point could be left undefined as is normal in such instances.Footnote 37 In this instance the Court found that it could in the circumstances ‘delimit the maritime boundary and state that it extends beyond the 82nd meridian without affecting third-State rights’. As might be anticipated, it did not then define the precise end point, but the Court did note that the line could not extend beyond 200 nautical miles in accordance with Article 76 of UNCLOS.Footnote 38
D. Commentary
What may seem to be the key issue in this case is the decision to use a bisector line in drawing the single maritime boundary. As Judge Koroma noted in his separate opinion, it was suggested that its use was a ‘departure from the jurisprudence of the Court’, but this is not in fact the case. Instead, in applying the bisector method, ‘the Court … has reaffirmed, applied and given effect to the law as well as its jurisprudence’.Footnote 39 In particular, both UNCLOS and the Court's jurisprudence countenance having due regard to the geographical features of the relevant area when delimiting maritime zones.Footnote 40 Thus while equidistance may provide a convenient starting point in delimiting maritime zones, it does not, as the Court noted, have primacy over other methods. Both equity and special circumstances can dictate the use of other means to determine the boundary. In this case the relevant geographical circumstances of the area dictated the need for the use of a different method: the bisector method. Where the decision does add to existing jurisprudence is in relation to the use of the bisector line to delimit, in part, the territorial seas of the parties. The novel aspect of this decision is that it represents the first time that the Court has had to depart from the equidistance line in the delimitation of the boundary of territorial seas under Article 15 of UNCLOS because of special circumstances.Footnote 41 It is, however, only a small departure as it is again based on geographical (special) circumstances, not a change in the interpretation of the law.
There is, however, a more contentious aspect to the judgment; that is the treatment afforded to the territorial seas of the islands. In acknowledging the right of States to claim a 12-mile territorial sea around islands and in dealing with the delimitation of the maritime boundary in the vicinity of the islands on the basis of the 12-mile limit the Court appeared to act contrary to the submissions of the parties. Honduras, in particular, stated ‘that its territorial sea would not extend south of the 14° 59.8′ N parallel and this was also reflected in its final submissions'.Footnote 42 Judge Koroma, in his separate opinion, and Judge Ad Hoc Gaja, in his declaration, suggested that the effect of the decision was to do just that. These statements seem, however, to be based on the premise that any and all territorial seas a State claims are one and the same. In fact the territorial seas around the islands are distinct from the territorial sea appurtenant to the mainland, as recognized in the judgment of the Court in paragraph 264 where it noted that the islands lie more than 24 miles from the mainland, and in the following statement made as the Court turned to consider the question of delimitation of the territorial seas of the islands: ‘Thus the Court leaves behind it the delimitation line based on the relevant mainland coast and turns to maritime delimitation between opposite-facing islands.’Footnote 43 There is, therefore, no extension of any territorial sea; rather there is a separate, or series of separate territorial seas which prompt the requirement for delimitation where they overlap with the territorial seas or other maritime zones of the other State to the dispute.
