| II. | Substantive International Law - Second Part |
| 2. | LAW OF THE SEA |
| 2.4. | Maritime Zones |
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Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening),
Judgment of 11 September 1992,
I.C.J. Reports 1992, p. 351
[pp. 608-609] 419. ... Nevertheless the modern law of the sea has
added territorial sea extending from the baseline, i.e., the low-water mark or
the closing line of waters claimed in sovereignty; has recognized continental
shelf as extending beyond the territorial sea and belonging ipso jure to
the coastal State; and confers a right on the coastal State to claim an
exclusive economic zone extending up to 200 miles from the baseline of the
territorial sea.
420. There can be no question that this law applying to the seas and seabed
and subsoil off a coast, applies now to the area off the Gulf of Fonseca; and
that, as always, the entitlement to these rights depends upon and reflects the
territorial position of the coast to which the rights are appurtenant. The coast
of a bay is for this purpose the closing line of the bay, for the waters inside
are claimed in sovereignty. Since the legal situation on the landward side of
the closing line is one of joint sovereignty, it follows that all three of the
joint sovereigns must have entitlement outside the closing line to territorial
sea, continental shelf and exclusive economic zone. This must be so, both in
respect of continental shelf rights belonging ipso jure to the three
coastal States, and in respect of an exclusive economic zone which requires
proclamation. Whether this situation should remain in being, or be replaced by a
division and delimitation into three separate zones is, as inside the Gulf also,
a matter for the three States to decide. Any such delimitation of maritime areas
will fall to be effected by agreement on the basis of international law.
[pp. 758-759 D.O. Oda] 48. In the light of the claims made in the
post-war period by the Latin American States to a distance of 12 miles for the
territorial sea, and given the universally agreed 12-mile limit to the
territorial sea under the new régime of the law of the sea, the Gulf of
Fonseca must now be deemed to be totally covered by the territorial seas of the
three riparian States. It cannot, moreover, be disputed that the area which had
previously been claimed by each of these States for the exercise of its police
powers has been completely absorbed in the extended 12-mile territorial sea in
the Gulf. Thus I conclude that the waters within the Gulf of Fonseca now consist
of the territorial seas of three riparian States, without leaving any maritime
space beyond the 12-mile distance from any part of the coasts. This, to my mind,
is the legal status of those waters.
49. As to any more specific decision, the Chamber is not in a position to
make any delimitation of the territorial sea of these three riparian States in
the Gulf (Judgment, para. 432 (2)). Nevertheless, Article 15 of the 1982 United
Nations Convention cannot be ignored:
"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 points on the baselines from which the
breadth of the territorial seas of each of the two States is measured. The above
provision does not apply, however, where it is necessary by reason of historic
title or other special circumstances to delimit the territorial seas of the two
States in a way which is at variance therewith."
In other words, the equidistance method is the rule in delimitation of the
territorial sea of the neighbouring States either opposite or adjacent to each
other, and the shape of the coast as a baseline is of importance for measuring
the territorial sea. I do not see that any historic title or other special
circumstances have been advanced by either El Salvador or Honduras which would
justify any departure from the application of the general rule of the "equidistance
line". In the particular instance of the Gulf of Fonseca, the terminal
points of the land boundaries between El Salvador and Honduras, and between
Honduras and Nicaragua, are of crucial significance for the delimitation of the
respective territorial seas. The Chamber has determined that the terminal point
of the territorial boundary between El Salvador and Honduras is north-west of
the Islas Ramaditas at the mouth of the river Goascorán. In addition,
sovereignty over the islands located in the Gulf is one of the factors to be
taken into account, and the islands of Meanguera and Meanguerita are determined
by the Chamber as being under the sovereignty of El Salvador.
50. It seems to be clear from the geographical point of view that Honduras,
sandwiched between El Salvador and Nicaragua in the Gulf, is not entitled to
claim any territorial sea beyond the meeting point somewhere in the Gulf of the
respective territorial seas of the three riparian States, which may well be
determined, if necessary, by agreement among themselves or by any other means
that they may deem fit. I must emphasize at this juncture that, while the
delimitation of the exclusive economic zone and the continental shelf between
the neighbouring States should be effected "in order to achieve an
equitable solution" (1982 United Nations Convention, Arts. 74 and 83),
application of the equidistance method remains a rule in the delimitation of the
territorial sea.
[pp. 760-761 D.O. Oda] 53. I believe that I have sufficiently
demonstrated the reasons why I am unable to associate myself with the present
Judgment's finding to the effect that, since a condominium of three States
extends up to the closing-line of the Gulf, Honduras, as one of the three, is
entitled to claim an exclusive economic zone and continental shelf outside the
Gulf. Such a finding is hardly tenable in the light of any rule, traditional or
contemporary, of the law of the sea. Because of its geographical situation,
Honduras cannot lay claim, in the offshore areas of the Pacific coast outside
the Gulf, to any territorial title in terms of the territorial sea, the
continental shelf or the exclusive economic zone. This is a geographical reality
of nature which - if I may adopt the Court's dictum in the North Sea
Continental Shelf cases - there "can never be any question of
completely refashioning" (I.C.J. Reports 1969, p. 49, at para. 91).
54. Of course, as I have already stated, Honduras is fully guaranteed access
to the high seas of the Pacific Ocean outside the Gulf of Fonseca by the
unchallenged concept of innocent passage through the territorial seas of the two
neighbouring States both within and without the Gulf.
55. The concept of the continental shelf and the exclusive economic zone has
recently been developed to extend coastal jurisdiction to vast offshore areas
which had traditionally been regarded as a part of the high seas. Thus the
interests of the coastal State have been strengthened and expanded - albeit at
the expense of the general and common interests of the international community
to be enjoyed on the high seas - and the general interests capable of being
asserted by the international community on the high seas are now diminished
(although the navigation interests of non-coastal nations remain unaffected in
those expanded areas). In return for that sacrifice, land-locked States and
geographically disadvantaged nations are assured, under the 1982 United Nations
Convention on the Law of the Sea, of:
"the right to participate, on an equitable basis, in the exploitation
of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same sub-region or region ..."
(Art. 69, para. l, and Art. 70, para. l).
The "geographically disadvantaged States" are meant to include:
"States bordering enclosed or semi-enclosed seas, whose geographical
situation makes them dependent upon the exploitation of the living resources of
the exclusive economic zones of other States in the subregion or region for
adequate supplies of fish for the nutritional purposes of their populations or
parts thereof, and coastal States which can claim no exclusive economic zones of
their own" (Art. 70, para. 2).
This new concept of the "right to fish" in the exclusive economic
zone of the neighbouring State was introduced into the new régime of the
seas to compensate geographically disadvantaged States which might otherwise
have suffered owing to the expanded coastal jurisdiction of these neighbouring
States placed geographically in a better position. I should refrain at this
juncture from taking any interpretative position on the question whether, in
view of the fact that it has a long coastline on the Atlantic side - thus
enabling it to claim its own exclusive economic zone in that region -, Honduras
falls within the definition of "geographically disadvantaged States",
which would enable it to claim in the Pacific Ocean the rights of "geographically
disadvantaged States" under the 1982 United Nations Convention. I would
simply suggest that the possibility of Honduras claiming or being granted such a
right in the exclusive economic zones in the Pacific of its two neighbouring
States may not be excluded.
