Nicaragua v. Honduras: A Case Summary For Meritime Dispute Resolution Project, Summaries of Law

Download Nicaragua v. Honduras: A Case Summary For Meritime Dispute Resolution Project and more Summaries Law in PDF only on Docsity! Nicaragua v. Honduras U.S.-ASIA LAW INSTITUTE NEW YORK UNIVERSITY SCHOOL OF LAW A Case Summary for the Maritime Dispute Resolution Project Round II Maritime Dispute Resolution Project Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Case Summary by Yurika Ishii* A research project of the U.S.-Asia Law Institute *Associate Professor, National Defense Academy of Japan This research was supported by JSPS KAKENHI Grant Number JP18K01290. Opinions expressed in this paper are solely the author’s own and do not represent the views of the institution to which she belong Maritime Dispute Resolution Project 2 Section I – Summary of the Case This case concerns a maritime boundary dispute between Nicaragua and Honduras in the Caribbean Sea. Both states were under the rule of Spain until they became independent in 1821. They later separately signed treaties with Spain, which recognized their territories including the adjacent islands that lie along their coasts without identifying them by name. On October 7, 1894, the two states concluded a general boundary treaty, the Gámez-Bonilla Treaty. The Mixed Commission established under this treaty fixed the boundary from the Pacific Ocean at the Gulf of Fonseca to the Portillo de Teotecacinte, but it was unable to determine the boundary from that point to the Atlantic coast. Nicaragua and Honduras subsequently submitted their dispute over the remaining portion of the boundary to the King Alfonso XIII of Spain as sole arbitrator. He handed down an arbitral award in 1906 (the 1906 Award), which drew a boundary from the mouth of the River Coco at Cape Gracias a Dios to Portillo de Teotecacinte, generally accepting Honduras’ claims. Nicaragua subsequently challenged the validity and binding character of this award. After several failed attempts to settle this dispute and a number of boundary incidents, the two states agreed to submit their dispute to International Court of Justice (ICJ) in 1957. The court found that the 1906 Award was valid and binding and that Nicaragua was under an obligation to give effect to it (the 1960 ICJ Judgment). As they could not thereafter agree on how to implement the 1906 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. Maritime Dispute Resolution Project 3 From 1963 to 1979, Honduras and Nicaragua generally enjoyed friendly relations. However, efforts of bilateral negotiations from 1977 stalled in 1979, when the Sandinista National Liberation Front (FSLN) in Nicaragua ousted the Samoza government. On March 21, 1982, two Nicaraguan coastguard vessels captured four Honduran fishing vessels in the vicinity of the boundary line claimed by Honduras running along 14°59.8′ North latitude (the 15th parallel), which resulted in a diplomatic exchange between the two states.1 Further incidents with fishing vessels continued in the 1980s and 1990s. On August 2, 1986, Honduras concluded a maritime boundary agreement with Colombia, against which Nicaragua protested. Honduras eventually ratified the instrument on December 20, 1999. On December 8, 1999, Nicaragua instituted proceedings before the ICJ against Honduras in respect of this dispute. The court rendered the present judgment on October 8, 2007. 1 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment, 2007 I.C.J. 659, para. 252 (Oct. 8). Maritime Dispute Resolution Project 4 Map 1: Claims of the parties. Source: ICJ Judgment, p. 686. Section II – Substantive Issues The court addressed two preliminary matters, admissibility on the claims of the sovereignty over the islands and the critical date, and two major substantive issues, the sovereignty over the islands and maritime delimitation of an Exclusive Economic Zone (EEZ) and continental shelf. Maritime Dispute Resolution Project 7 principle was applicable not only to their mainland territory but also the maritime area off the coast and the islands in the disputed area.11 It was beyond doubt that this principle was applicable to the question of territorial delimitation between the parties, both former Spanish colonial provinces.12 The court found that uti possidetis juris could in principle apply to offshore possessions and maritime spaces;13 however, this rule presupposes that the central colonial authority had previously delimitated the territory as between the respective colonial provinces. 14 Thus, in order to apply the uti possidetis juris principle to the islands, it would need to be shown that the Spanish Crown had allocated them to one or the other of its colonial provinces.15 The court found that there was insufficient evidence that Spain had legally assigned the islands to either of the parties before their independence.16 It also held that there was no evidence of “colonial effectivité,” i.e. for each colony, the conduct of the administrative authorities did not demonstrate effective exercise of territorial jurisdiction in the region during the colonial period.17 11 Id. para. 147. 12 Id. para. 153. 13 Id. para. 156. 14 Id. para. 158. 15 Id. 16 Id. paras. 159-164. 17 Id. para. 165. Maritime Dispute Resolution Project 8 Nicaragua claimed its sovereignty on the basis of adjacency, because the independence treaties concluded by Nicaragua and Honduras with Spain referred to adjacency. The court denied the claim, pointing out that adjacency itself cannot grant title. Moreover, the references to adjacency in the treaties of independence referred to mainland coasts rather than to offshore islands, and in this case the islands were closer to the coast of Honduras than to the coast of Nicaragua.18 The court concluded that neither party had title to these islands by virtue of uti possidetis.19 (2) Post-colonial Effectivité Second, the court examined whether evidence of post-colonial effectivité would determine who held sovereignty over the islands. The matter would have to be decided by examining which of the two states had a superior claim based on the actual exercise or display of authority over the islands, coupled with the necessary sovereign intent. 20 A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the state over a given territory.21 Such an exercise must have also have “a certain dimension proportionate to the nature of the case.”22 Sovereignty over minor maritime features, such as the ones in the 18 Id. para. 164. 19 Id. para. 167. 20 Id. para. 169. 21 Id. para. 172. 22 Id. para. 173. Maritime Dispute Resolution Project 9 present case, may be established on the basis of a relatively modest display of state powers in terms of quality and quantity.23 Then, the court considered different categories of effectivité presented by the parties. It concluded that Honduras’ activities – including the application and enforcement of criminal and civil law, 24 regulation of immigration, 25 regulation of fisheries activities,26 and public works27 – were sufficient to establish effectivité evidenced by an “intention and will to act as sovereign” by Honduras. Together these acts constituted “a modest but real display of authority” over the four islands.28 On the other hand, the court did not consider Honduras’ legislative and administrative control to be convincing, since the laws cited by Honduras did not reference the four islands and there was no evidence that they were applicable to the islets.29 With regard to Nicaragua, the court 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.30 23 Id. para. 174. 24 Id. para. 185. 25 Id. para. 189. 26 Id. para. 196. 27 Id. para. 207. 28 Id. para. 208. 29 Id. para. 181. 30 Id. para. 207. Maritime Dispute Resolution Project 12 The court also noted that the 1906 Award, which indeed was based on the uti possidetis juris principle, did not deal with the maritime delimitation.39 In conclusion, the court held that the uti possidetis juris principle did not provide a basis for a maritime division along the 15th parallel.40 (2) The Existence of a Tacit Agreement Second, the court examined whether a tacit agreement existed. Honduras pointed to a variety of elements that came into existence both before and after the Sandinista revolution in 1979, and that it argued demonstrated the existence of a de facto boundary based on tacit agreement at the 15th parallel. It referred to, among others, (1) oil concession practices including Coco Marina, a joint venture oil well straddling the 15th parallel, 41 (2) fishing activities, 42 (3) Honduran naval patrols,43 and (4) the practice of third parties as the evidence of the existence of a tacit agreement.44 Nicaragua denied that it ever accepted or recognized the 15th parallel as the maritime boundary with Honduras.45 39 Id. para. 236. 40 Id. para. 235. 41 Id. paras. 237-9. 42 Id. para. 240. 43 Id. para. 241. 44 Id. para. 242. 45 Id. para. 247. Maritime Dispute Resolution Project 13 The court held that evidence of a tacit legal agreement must be compelling. 46 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.47 The court noted that, at times, the 15th parallel appeared to have had some relevance in the conduct of the parties. However, these events, spanning only short periods, were insufficient for the court to conclude that there was a legally established international maritime boundary between the two states. 48 It concluded that there was no tacit agreement in effect. (3) Delimitation of the Maritime Boundary a. The Method of Delimitation Both parties asked the court to draw a single maritime boundary in the territorial sea, EEZ, and continental shelf. The parties were in agreement that the UNCLOS was in force between them in this dispute. The determination of a single boundary for different rights can only be carried out by applying a criterion or combination of criteria that does not give preferential treatment to one of these rights to the detriment of another, while at the same time being equally suitable 46 Id. para. 253. 47 Id. 48 Id. para. 256. Maritime Dispute Resolution Project 14 to the division of each of them.49 For the delimitation of territorial seas, article 15 of the UNCLOS provides the equidistance/special circumstances approach. 50 For EEZ and the continental shelf, article 74(1) and 83(1) provides that they are to be delimited by agreement on the basis of international law to achieve an equitable solution.51 As to the plotting of a single maritime boundary, the court had on various occasions made it clear that, when a line covering several zones of coincident jurisdictions was to be determined, the so-called equitable principles/relevant circumstances method might usefully be applied. 52 The equidistance method does not automatically have priority over other methods of delimitation and, in particular circumstances, there may be factors that make its application inappropriate.53 In the present case, neither party had, as its primary argument, called for a provisional equidistance line as the most suitable method of delimitation.54 The court looked at the geographical and geological circumstances, such that a pair of base points identified on either bank would assume a considerable dominance in constructing an equidistance line. In addition, the sediment deposited at sea had caused the delta and coastline to exhibit a very active morpho-dynamism, which might render any equidistance 49 Id. para. 265 50 Id. paras. 267-269. 51 Id. para. 270. 52 Id. para. 271. 53 Id. para. 272. 54 Id. para. 275. Maritime Dispute Resolution Project 17 relevant special circumstances in this area that would warrant adjusting this provisional line.63 d. Starting-point and Endpoint of the Maritime Boundary The parties agreed that the maritime boundary should begin 3 nm seaward of the mouth of the River Coco due to the instability of the coasts. However, they disagreed as to the beginning point from which the distance should be measured and as to the direction of the measurement. The court held that the starting point should be the point fixed by the Mixed Commission in 1962. The court held that it could not definitely establish the endpoint of the delimitation due to the existence of other states’ interests in the region. As to the 1986 Treaty between Honduras and Colombia, the court observed that the bisector line it had constructed ran north of the boundary set in that instrument, and would therefore not interfere with the boundary claimed by Colombia vis-à-vis Nicaragua. Another possible source of third-state interests was the joint jurisdictional 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 stated that it would 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.64 Finally, the court declared that the boundary line should continue along the same azimuth until it reached the area where the rights of third parties might be affected, and not beyond 200 nm from the coastal baselines of either party. 63 Id. para. 304. 64 Id. paras. 316-317. Maritime Dispute Resolution Project 18 Map 2: The final delimitation. Source: ICJ Judgment, p.762. Maritime Dispute Resolution Project 19 Section III – Implementation of the Court’s Decision 1. Implementation The parties agreed to abide by the court’s judgment and have continued cooperation for maintenance of the friendly relations.65 The author of this case summary is not aware of any cross-border incidents between the two states in the Caribbean Sea after this settlement. (In March 2013, there was an occurrence near their Pacific boundary in the Gulf of Fonseca, where an armed Nicaraguan naval vessel tried to exclude Honduran fishing boat in disputed waters.66) According to the United Nations Division for Ocean Affairs and the Law of the Sea (DOALOS) database on national legislation, neither state has enacted implementing legislation and neither has concluded a maritime boundary treaty reflecting this judgment.67 The boundary line is reflected in Nicaragua’s illustrative map of its baselines, published in 2018.68 65 For the background of the negotiation, see OAS Peace Fund, Honduras and Nicaragua, at https://www.oas.org/sap/peacefund/hondurasandnicaragua/. 66 TOM LANSFORD, POLITICAL HANDBOOK OF THE WORLD 2016-2017 634 (2017). 67 For Nicaragua, see https://www.un.org/Depts/los/LEGISLATIONAND TREATIES/STATEFILES/NIC.html; and for Honduras, see https:// www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ HND.html. 68 U.N. Office of Legal Affairs, Div. for Ocean Affairs and the Law of the Sea, Mar. Zone Notification No. 141, Ref. M.Z.N.141.2018.LOS (Dec. 18, Maritime Dispute Resolution Project 22 participate in various regional and international arrangements related to aquaculture.70 Therefore, as far as the author was able to determine, the delimited line did not affect the states’ resource interests in a significant manner. (4) The Existence of Third State Interests The court was aware that the decision would potentially affect the interests of Colombia and Jamaica on the eastern end of the boundary. Nicaragua had also brought a case against Colombia in 2001, which was ongoing at the time of this judgment.71 The court concluded that extending the maritime boundary beyond the 82nd meridian would not affect third-state rights, and in no case could the line be interpreted as extending more than 200 nm from the baseline. While it was criticized, this part of the judgment may be one of the reasons why the judgment was accepted by the parties.72 In summary, the judgment was carefully designed not to harm the core interests of either party. 70 For Honduras, see National Aquaculture Legislation Overview: Honduras, FAO FISHERIES AND AQUACULTURE DEPARTMENT (Jul. 22, 2020), http://www.fao.org/fishery/legalframework/nalo_honduras/en; for Nicaragua, see id., National Aquaculture Legislation Overview: Nicaragua, http://www.fao.org/fishery/countrysector/naso_nicaragua/en. 71 The maritime delimitation of EEZ and continental shelf was done in 2012; and the delimitation of continental shelf beyond 200 nm is still pending. 72 Coalter G. Lathrop, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), 102 Am. J. Int’l. L. 113 (2008) (criticizing the decision on the basis that “[o]n its face, the court’s decision appears to complicate the boundary relationship between Honduras and Colombia by establishing an area of Nicaraguan jurisdiction north of some part of the 1986 Colombia-Honduras boundary”). Maritime Dispute Resolution Project 23 3. External Factors of the Dispute (1) Confidence Building Measures through the Organization of American States The acceptance of the judgment may be partly attributed to efforts by the Organization of American States (OAS) to settle the dispute. 73 In December 1999, the OAS Permanent Council convened a special session at the request of the two parties to address tensions that had arisen due to the maritime boundary dispute.74 While the two agreed to send the maritime delimitation case to the ICJ, they also signed a series of confidence-building measures, working with the OAS envoy on matters such as maintaining communications between the two countries’ armed forces, restricting military activities along the border, and conducting combined patrols in the Caribbean Sea.75 When tensions resurfaced in late February 2001, OAS held a meeting between the two states in March 2001, which led to the adoption of a Technical Verification Agreement. An Agreement for an OAS International Verification Mission was adopted in June 2001, which charged the OAS Mission to verify (1) the number and location of military and police posts along the land border, as well as the number of personnel assigned to each post, and (2) that the 73 See Honduras-Nicaragua Situation, ORGANIZATION OF AMERICAN STATES (Jul. 22, 2020), http://www.summit-americas.org/asg/Honduras- Nicaragua/Default.htm. 74 O.A.S. PERMANENT COUNCIL, Support for the Governments of Honduras and Nicaragua, O.A.S. Doc. OEA/Ser.G CP/RES. 757 (1216/99) (Dec. 7, 1999), https://www.oas.org/sap/peacefund/resolutions/Resolution_757_Hondura s_and_Nicaragua_English.pdf. 75 Id. Maritime Dispute Resolution Project 24 military and police posts in the Caribbean Sea were being kept at the same level as on September 1, 1999. The mission was completed by the end of the year, and the report was published in 2002. 76 The two states also signed an Agreement for a Bi-national Border Development Plan and an Agreement on Police Cooperation and Military Movement Notification in 2001. (2) Economic Relations between the Two Parties Both Nicaragua and Honduras are among the poorest countries in the region. When the maritime disputes arose in the 1980s, Nicaragua imposed a 35% tariff on products from Honduras.77 However, the states later chose to economically cooperate in the 2000s, and adopted the Central America Free Trade Agreement (CAFTA), the regional free trade agreement, in 2005. The close economic relations between the two parties is likely a factor that encouraged them not to dispute the boundary line after the judgment. Section IV – Conclusion As examined in the previous section, a carefully designed judgment that did not harm the core interests of either party and improvement of political and economic relations through confidence building measures seem to be the factors that made this 76 O.A.S. GENERAL SECRETARIAT, Technical Report of the OAS International Verification Mission to Honduras and Nicaragua, O.A.S. Doc. OEA/Ser.G, CP/doc.3540/02 rev. 1 (Jan. 23, 2002), http://www.summit- americas.org/asg/Honduras-Nicaragua/VerificationMissionReport- ENG.htm. 77 UNITED NATIONS & ECON. COMM’N FOR LATIN AM. AND THE CARIBBEAN, LATIN AMERICA AND THE CARIBBEAN IN THE WORLD ECONOMY (2001-2002) 171 (2002).