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II. Substantive International Law - Second Part
2.4.Maritime Zones

¤ 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.