Maritime Delimitation with Equity: the case of Peru vs Chile

Mar i t i meDel i mi t at i on wi t hequi t y: t heCas eofPer uvs .Chi l e

ManuelRodr i guezCuadr os

Maritime Delimitation with equity: the Case of Peru vs. Chile

Manuel RodrĂ­guez Cuadros

Original title: Delimitación marítima con equidad: el caso de Perú vs. Chile Maritime Delimitation with Equity: the Case of Peru vs. Chile © Manuel Rodríguez Cuadros © Of this edition: Editatú Editores e impresores de José Carlos Alvariño Pumacahua 922-Jesús María First English edition: Lima, July 2011 Print run: 1,000 All rights reserved I.S.B.N.xxxxxxxxxxxx Hecho el Depósito Legal en la Biblioteca Nacional del Perú No.: 2011-08168 English translation: Mare Gordillo / BCC Business Communications Consulting Chief editor: María Inés Calle Cover image: Details of Sin título. 2007. Oil colors, tempera, pigments and marble dust on canvas, 160 x 144 cms., by Ricardo Wiesse (Perú).

Cover design and layout: Victoria Nureña (Editatú) Printed in Peru by: Editatú editores e impresores

INDEX

Introduction

11

PART I Land and Sea: Their Incidence in Determining National Space and Awareness

17

PART II International Law of Maritime Delimitation and the PeruvianChilean Maritime Dispute

29

Chapter 1 The Formation Phase of International Law of Maritime Delimitation and its Gradual Evolution: Maritime Spaces under the Jurisdiction of the States and the Limits of the Maritime Boundaries

31

Chapter 2 The State’s Legal Title over the Sea: The Principle of Adjacency (Land Dominates the Sea), the Outer Limit, and Maritime Delimitation

38

Chapter 3 International Law of Maritime Delimitation between 1947 and 1957

40

Chapter 4 The Current International Law of Maritime Delimitation Applicable to the Peru-Chile Juridical Dispute: Principles, Conventional and Customary Rules, Delimitation Methods 1. Delimitation of the Territorial Sea and Contiguous Zone 2. Delimitation of the Continental Shelf and the Exclusive Economic Zone a) Delimitation of the Continental Shelf b) Delimitation of the Exclusive Economic Zone 3. Equitable Principles, Fundamental Rule for Maritime Delimitation 4. Methods to Apply Equitable Principles on Maritime Delimitation 5. Special Circumstances and the Search for Equitable Solutions

50 51 54 54 63 66 70 75

Maritime Delimitation with equity: the Case of Peru vs. Chile

6. Convergence and Unity of Conventional Law of Maritime Delimitation and Customary Law towards a Single Goal: Delimit Producing Equity in the Results 7. Basic Rules for the Interpretation of Treaties and their Application on Maritime Delimitation Law

79 84

PART III The Peru-Chile Maritime Dispute

89

Chapter 1 Origin of the Peru-Chile Maritime Dispute, its Components, and its Critical Date

91

Chapter 2 Maritime Delimitation Dispute: Overlapping of 200-mile Areas of Peru and Chile 1. The 1952 Declaration on the Maritime Zone or Declaration of Santiago 2. The Declaration of Santiago Does Not Establish any Lateral Delimitation Rule between Peru and Chile and Let Alone a Tracing of such Alleged Delimitation 3. Agreement Relating to a Special Maritime Frontier Zone of 4 December 1954 4. The 1968 Agreement to Build Leading Marks or Beacons to Guide the Small Fishing Vessels in the Special Zone and its Supplementary Documents a) Agreement that Concluded through the Exchange of Notes on 6 February and 8 March 1968 b) Instructions to the Technical Experts in Charge of Locating the Position of Boundary Marker Number 1 of the Land Boundary and Studying the Feasibility of Building Marks, Beacons, or Lighthouses to Guide Small Fishing Vessels c) The Report Dated 26 April 1968 Prepared by the Technical Commissions that Studied on the Ground the Feasibility of Placing Beacons or Leading Marks d) Minutes Recording the Outcome of the Technical Works on the Ground Chapter 3 Disagreement on the Starting Point of the Maritime Boundary 1. The Boundary Established by the 1929 Treaty on the Point where the Land Boundary Reaches the Sea Chapter 4 Dispute Arising out of Chile’s Denial of Peru’s Sovereignty and 6

96 98 107 119 131 132

136 137 139 143 145

Index

Jurisdiction over a Space of the Maritime Domain (28,471.86 km2) Different from the Area under the Maritime Boundary Dispute Chapter 5 The Effectivités and the Behavior of the States in the Maritime Delimitation Law and the Peru - Chile Dispute 1. Effectivités 2. Behavior of the States 3. Peru and Chile’s Behaviors in Connection with the Maritime Dispute a) Phase One (1821-1947) b) Phase Two (1947-1945) c) Phase Three (1945-1980) d) Phase Four (1980-present)

152

156 156 159 170 171 172 182 186

PART IV International Law of Maritime Delimitation and the PeruvianChilean Maritime Dispute

209

Chapter 1 Diplomatic Means of Pacific Settlement of Disputes 1. Political-Diplomatic Negotiation 2. Direct Negotiations and Third Party Involvement 3. Inquiry 4. Good Offices and Conciliation 5. Mediation

211 211 213 217 218 219

Chapter 2 Pacific Judicial Settlement of Disputes: the International Court of Justice 1. Pact of Bogota and the Enabling Clause to Bring the Case to the Hague International Court Through Peru’s Unilateral Decision 2. Preliminary Exceptions that the Government of Chile Could Raise Asking the Court to Dismiss the Case on Lack of Jurisdiction or to Declare the Application Inadmissible a) Objections on Jurisdiction b) Objections on Inadmissibility of Application

i. Deny the Existence of a Maritime Dispute between Peru and Chile ii. Direct Diplomatic Negotiations Have Not Been Concluded, as Required

by Article IV of the Pact of Bogota iii. The Application Would Not Be Admissible Because, Pursuant to Article VI of the Pact of Bogota this is a Dispute that Has Already Been Settled by International Treaties Confirmed through Practice

7

221 221

226 227 229 229 236 239

Maritime Delimitation with equity: the Case of Peru vs. Chile

PART V Historical Sense of the Relations between Peru and Chile

241

ANNEXES

251

1. Supreme Decree 781, 1 August 1947

253

2. Petroleum Law 11,780, 12 March 1952

255

3. Delimitation of the 200-Mile Maritime Zone, Supreme Resolution 212, 12 January 1955

256

4. Official Declaration of the Government of Chile establishing a 200Mile Maritime Area, 23 June 1947

257

5. Declaration of Santiago, 18 August 1952

259

6. Agreement Relating to a Special Maritime Frontier Zone, 4 December 1954

261

7. Protocol of Accession to the Declaration on the “Maritime Zone” Signed in Santiago, 6 October 1955

263

8. “Principles of Mexico”, Resolution XIII of the Meeting of the Inter-American Council of Jurists, Mexico, 1956

264

9. Resolution III of the II Congress of the Hispano-Luso-American Philippine Institute of International Law, 12 October 1953

266

10. Treaty and Supplementary Protocol between Chile and Peru for the Settlement of the Dispute regarding Tacna and Arica, 3 June 1929

269

11. Instructions Given to Mr. Enrique Brieba, Representative of Chile to the Peru-Chile Joint Commission of Limits to Finalize the Land Boundary Demarcation, 28 April 1930

273

12. Final Minutes of the Commission of Limits Including a Description of the Land Boundary Markers, 21 July 1930

275

13. Agreement to Build Signals or Towers to Guide Artisanal Small Fishing Vessels in the Maritime Frontier Zone, Established by Exchange of Notes of 6 February and 8 March 1968

276

14. Official Position of Peru on the Maritime Delimitation Between States with Adjacent Coasts. Statement of the Delegate of Peru Ambassador Alfonso Arias-Schreiber, during the Ninth Period of Sessions of the III United Nations Conference on the Law of the Sea, Geneva, 27 August 1980

279

15. Memorandum from the Embassy of Peru in Santiago to the Ministry of Foreign Affairs of Chile, Sent with Note 5-4-M/147, 23 May 1986

280

8

Index

16. Note of Protest Sent by the Government of Peru against the Registration Made by the Government of Chile with the United Nations Secretariat of a Nautical chart Claiming the Existence of a Maritime Boundary by the Parallel that Passes through Boundary Marker 1 of the Land Boundary, 20 October 2000

283

17. Diplomatic Note from the Embassy of Chile, 22 November 2000

284

18. Note of Reply from the Government of Peru, 27 December 2000

285

19. Communication Sent by the Minister of Foreign Affairs of Peru, Manuel Rodríguez Cuadros to the Minister of Foreign Affairs of Chile, Soledad Alvear Proposing on Behalf of the Peruvian State to Begin Diplomatic Negotiations in order to Solve the Pending Legal Dispute on the Maritime Delimitation, 19 July 2004

286

20. Answer by the Government of Chile to the Invitation Sent by the Government of Peru to Commence Negotiations with the View of Solving the Maritime Dispute

289

21. Official Communiqué Concerning the Response by the Government of Chile to the Proposal Made by the Government of Peru to Commence Negotiations on Maritime Delimitation

290

22. Joint Communiqué of the Ministers of Foreign Affairs of Peru and Chile, 4 November 2004

291

9

INTRODUCTION

Boundary disputes between States are usual and stem from opposing interests on the matters that affect the shape of their national spatial jurisdiction. It is related to the permanent interests of the nation, which each State has the duty to preserve and defend.

It is inherent to diplomacy and international relations to activate the most suitable dispute settlement mechanisms. International law, which is called to guarantee peace and good neighbor spirit, affords the States peaceful dispute settlement means. Resorting to such mechanisms is not just an exercise of modern, democratic, and responsible democracy but also an act of good neighbor spirit.

For this reason, international law for the Americas and international law in general has promoted peaceful dispute settlement as an international legal obligation.

The United Nations Charter establishes that “the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,…”1 At a regional level, the OAS Charter also enshrines this obligation: “International disputes between Member States shall be submitted to the peaceful procedures set forth in this Charter […] direct negotiation, good offices, mediation, investigation and conciliation, judicial settlement, arbitration…”2 More specifically, the countries in the region have made a commitment to this obligation by executing and ratifying the American Treaty on Pacific Settlement (Pact of Bogotá), through which they “recognize the obligation to settle international controversies by regional procedures before referring them to the Security Council of the United Nations.”3 Resorting to these mechanisms depicts the State’s attachment to international law; trust in the institutionalism of regional governance, and calling to preserve friendly neighborhood relations and mutual benefit.

United Nations Charter, Chap. VI, Art. 33 Organization of American States Charter, Chap. V, Art. 23 and 24 3 American Treaty on Pacific Settlement, Bogota, 30 April 1948, Art. II 1 2

Maritime Delimitation with equity: the Case of Peru vs. Chile

Nowadays, more Latin American countries, with maturity and legal demeanor, are turning to the International Court of Justice (ICJ) in order to settle their disputes. Honduras and Nicaragua have applied to the ICJ several times; as have El Salvador and Honduras; Costa Rica and Nicaragua; Colombia and Nicaragua; and, more recently, Uruguay and Argentina.

Peru and Chile have a maritime dispute which involves three issues, in which the two countries have an express and objective disagreement —an opposition of legal views and interests.4 The dispute on maritime delimitation strictly speaking opposes the Chilean thesis, which asserts the existence of a delimitation line running from parallel 18°21’00’’ and the Peruvian position, which asserts that no legal instrument, not even tacitly, has established such boundary, for this reason the maritime boundary needs to be delimited in accordance with customary international law.

An issue arising from this dispute is the opposition of interests and of legal views regarding the starting point of the maritime boundary. Peru considers that such point can only be the one determined in the 1929 Treaty and its Additional Protocol, i.e., the terminus point of the land boundary: “the point on the coast located 10 km to the Northeast of the first bridge over the River Lluta on the Arica - La Paz railway,” called “Concordia."5 This point on the coast of the sea is located on parallel of latitude south 18°21’08”. The Government of Chile believes that the 1929 Treaty would have been amended, through a written technical report signed by the two countries in 1968 and the Minutes of the technical commission that in 1969 installed beacons to guide artisan fishermen, and that, consequently, the starting point of the maritime boundary would be within the territory, on the coordinate of latitude 18°21’00”, exactly at Boundary Marker No. 1 of the land boundary.

Finally, the last element of the maritime dispute stems from the Government of Chile’s attempt to disregard Peru’s sovereignty and in exercising jurisdictional powers in a space which is under the maritime domain of Peru, which is considered high seas in accordance with the so called presential sea thesis. This thesis is not recognized by international law. This maritime space is located outside the border dispute zone.

This dispute shall be settled at the International Court of Justice if no diplomatic negotiation formulas, unlikely but not impossible, are found. Hence, the countries shall resort to peaceful dispute settlement mechanisms established by The International Court of Justice has defined a legal dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interest” (Cf.: “Mavrommatis Palestine Concessions”, Judgment No. 2, 1924, P.C.I.J., Series A, No.2, p.11) 5 Cf. Peru-Chile Joint Boundary Commission, “Final Minutes” signed by Federico Basadre and Enrique Brieba, delegates of Peru and Chile, respectively. Arica 21 July 1930.

4

12

Introduction

international law. The settlement of this dispute, once the ICJ has rendered its judgment, must hold for the two countries and their peoples an unprecedented space free of any border dispute, of which the bilateral relationship has never enjoyed since the 1879 War. Thus, it will create the conditions for the relations between the two countries to find a sound historical stability, in which cooperation, friendship, good neighborhood spirit, and border integration will be driven by the States but also by the creative capacity and solidarity of its peoples.

Jean Baptiste Duroselle and Pierre Renouvin,6 when defining the factors which intervene in international affairs, give historic and social processes (the “deep forces”) a non-defining role, but rather an influential one, without their reference, decisions-making is usually astray. In the Peru-Chile relations, one of such forces that Duroselle discusses has been the boundary issue, which is part of the present maritime dispute. A serious and responsible diplomacy cannot, and should not, conceal or set aside this problem. The attempts in the recent past have only driven us to try to hide this iceberg with context-dependent subjective voluntarism. When the political discourse fumes fade away (which sidestep the real problems), the iceberg surfaces and crises and tensions crop up.

A modern diplomacy deeply rooted in our national heritage, in part and parcel democratic and with social content, does not hide problems but instead faces them and brings about mutually beneficial solutions through diplomatic negotiation. When this is not possible or fails to settle the problem, the path to take is international justice based on the law.

For the peoples of Peru and Chile, and for their States, solving the current maritime legal dispute is a shared interest. And given that very sensitive interests are at stake, the jurisdictional option is the most appropriate, since it is neutral, based on international law, and binding.

The option of the International Court of Justice in The Hague entails abandoning –it is hoped for ever- ambiguous negotiation devoid of transparency in matters that should be open to much public information and not surrendering national interests for secondary motives.

It is also betting firmly towards a better future of bilateral relations. When the proceeding is completed, Peru and Chile will have no other boundary disputes.

This will contribute to change the direction of deep forces; in this case, in favor of cooperation, integration, and the development of political, diplomatic, and military relations, founded upon mutual respect and reciprocal benefits.

Duroselle, Jean-Baptiste and Renouvin, Pierre, Introduction à l´histoire des relations internationales, Paris, Pocket, 2007.

6

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Maritime Delimitation with equity: the Case of Peru vs. Chile

When I was the Minister of Foreign Affairs of Peru, this was the hallmark of my administration: to settle pending issues and promote a new ambiance for the bilateral relation. Also, it was driven towards cultivating the value of stability and predictability of the State’s decisions and, at the same time, fertilizes the social spaces in order to contribute to forge free and creative rapports among their peoples.

To this end, Peruvians and Chileans must learn to cherish the political and cultural values which are of essence to modern and democratic diplomacy: to value peace and security as a shared experience; the value of balance and the respect for the national and historic identity of each country; the value of mutual benefit, not asymmetric, in economic, financial, and commercial affairs; the value of solidarity and good neighborhood spirit in practical and common terms; and the value of solidarity and mutual understanding to promote shared interests.

The purpose of this book is to present the existent Peru-Chile maritime dispute and to address it in light of its components and legal features. At the same time, it is made available to readers as a source which will contribute to better understand the nature of the problem. I am convinced that broad knowledge of all the components and insights of this complex issue may contribute to find an equitable and long-lasting solution.

Certainly, globalization does not suppress the national identity of States and societies. Instead, globalization creates new scenarios and sets out complex challenges. In Latin America, where the development of international law is innate to its regional identity (the region has made significant contributions to the principles of international law, for instance), taking international conduct based on the principles and rules of the law governing the globalization process is not a democratic and good neighbor obligation. It is the only way to preserve our own interests and the historical viability of each national project.

In this context, Peru’s resorting to the International Court of Justice to settle its maritime dispute with Chile is a way of expressing its diplomatic conduct based on the law and good neighborhood spirit. In addition, such demeanor is consistent with the tradition of the international law of the Americas and with the numerous and growing practices in the countries of this region to settle their disputes through dialog, negotiation, or resorting to international justice. Among them, the calling made in this sense, in 1960, by the Minister of Foreign Affairs of Chile, Enrique Ortuzar at the Sixth Meeting of Consultation of Ministers of Foreign Affairs, OAS, in San Jose, Costa Rica, when he gave his address: “The Government of Chile believes that peace and security in the continent would be better guaranteed if all of the States in the Americas accepted, in 14

Introduction

accordance with Article 36 of the Statute of the International Court of Justice, as compulsory ‘ipso facto’, the jurisdiction of the Court in all legal disputes arising between them…”7 Cesar Vallejo, exercising his universal approach and talent, anticipated in its development of the international law of the Americas, to which he predicted the best destinations among all nations of the world: “There is, therefore, reason to believe that Latin America will create its own international law, which shall be based on the universal values of honesty and frankness, the right of all peoples to a future.”8 It is worth remarking that the author of this book shall be exclusively held liable for the thesis explained herein and in no way shall bind the official position of the State of Peru. Since I have been Minister of Foreign Affairs and as such have made decisions directly related to the maritime delimitation pending between Peru and Chile, I find it necessary and convenient to make this clarification.

This book would not have been possible had it not been for the generous encouragement and motivation of my wife, Maritza Puertas Valdivieso, and the understanding of my daughters and sons Maia, Mariana, Alonso, and Diego, from whom I took many family days in order to devote such time to writing this book.

I am deeply thankful to Carlos Fernandez Sessarego for permanently influencing on my view of law and justice; and to Ambassador Jorge Chavez Soto, who has devoted most of his professional life to study the Law of the Sea and issues related to maritime delimitation, for his comments and valuable suggestions.

Lima, November, 2007 Manuel Rodriguez Cuadros

7 Address by the Minister of Foreign Affairs of Chile, Enrique Ortuzar at the Sixth Meeting of Consultation of Ministers of Foreign Affairs, OAS, in San Jose, Costa Rica, 1969.

8 Vallejo, Cesar, “La diplomacia latino-americana en Europa,” article signed in Madrid, 1927, Variedades N° 1013, Lima 30 July 1927. In: Rodriguez Cuadros, Manuel. “La política internacional en el itinerario de Cesar Vallejo”, Revista Política Internacional, Lima, Diplomatic Academy of Peru , 2002, pp. 263-272.

15

I LAND AND SEA: THEIR INCIDENCE IN DETERMINING NATIONAL SPACE AND AWARENESS

The relationship between foreign policy and the variables of national space, particularly the land and the sea, is determined by the legal and material nature of the State —by State we mean the type of social organization which necessarily entails having land. In primitive communities this interaction was at the genesis of the consolidation of sedentary life, which connected for ever the political communities to the land space and the marine habitat.

A first component of this relation, within the scope of domestic politics, is connected to the natural resources and the capacity of economic activities in order to —from these resources— satisfy the needs of the population. From a political viewpoint, power, to a great extent, stems from holding natural resources and the community’s capacity to transform them. Power also depends on the strategic and economic value of the geographic position, size, and resources (wealth) of the land and the sea and their incidence in the scientific and technological innovation process.

A second component of the relation “political society”-“land and sea space” consists of diverse factors which stem from the interactions between the States; mainly the exchange of goods and services, capital mobility, knowledge transfer, and political relations. By combining all of these factors together, we can determine the strategic potential of national spaces.

The third component is related to ideological representations and social behavior, i.e., the sense of belonging and identity of a population with its national space.

This process —material and subjective, individual and social— which bonds collectively a population within a shared space, is inherent to the Nation State and is at the origin of national awareness. In terms of foreign policy, it also generates national interests.

For these reasons, i.e., for the importance of the variables contributed by national space to the formation of autonomous political communities and, especially, of contemporary Nation State, in today’s world, the national referent is a historic constant which is fully in force.

Maritime Delimitation with equity: the Case of Peru vs. Chile

Globalization has not, and will not, eliminate national societies. Certainly, it has triggered changes to their contexts and inside them. National States can merge, much as companies do, into more complex structures, such as the European Union. However, unlike a corporate merger, national units do not disappear.

On the contrary, in the community context they hold and develop their own history, identity, and decision-making power leading to forging their destiny. For example, the European Union has not made the French less French; but it has made them more communitarian.

Globalization has also brought about the inverse phenomenon: the dismemberment of big confederate States. The case of the Soviet Union is a paradigmatic example. However, globalization has not changed the fact that food, housing, health, employment, culture, entertainment, and security needs of the population are still being satisfied, at different levels and degrees, through economies and political systems with territorial and national basis approach, i.e., within the States. There is, and will be, no transnational State, a single and excluding global State is unlikely.

And as long as this is so, the national referent will continue to be the physical, social, legal, and cultural space in which each community bets in forging its future. For this reason, after three decades of globalization, the idea that development will arrive to developing countries as a uniform process, at the same speed and with the same impact on the daily lives of persons, is confirmed as a myth1. Evolution, as has been the case throughout the history of Mankind, will continue to be uneven. Some nations evolve, while others do not. Some evolve at a quicker pace, while others stall or retreat. And within each nation, evolution is also uneven.

In this context, globalization requires States to win in competitiveness. States, like companies, cooperate and compete. This type of relation, of cooperation and competition, which determines international policies, makes some public policies imperative and States must follow them in order to preserve the permanent interests of nations. One of these interests is to preserve the integrity of its national space, territory, and the sea adjacent to its coasts, not by producing ethereal theories, innate to games of strategy, but by more concrete questions, which are related to the basic task of any State and any Government, that is, to promote the wellbeing of its population: constituents shall satisfy Oswaldo de Rivero has proposed the theory of the development myth, in virtue of which, before pointing out the impossibility of development in any given State, he proposes the idea that it would be impossible for development to spread equally to all developing countries, let alone with the same levels of consumption and depletion of the environment cost by industrialized countries. Cf. De Rivero, Oswaldo, El mito del desarrollo, Lima, FCE, 2001.

1

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I - Land and Sea: Their Incidence in Determining National Space and Awareness

their employment, housing, health, security and safety, education, cultural, and entertainment needs with levels of dignity and respect that are consistent with their condition as human beings. This is, in fact, the purpose of politics.

These tasks connect the territory and the adjacent sea with the economy and the satisfaction of human needs with politics. Defense, conservation, and sustainable use of the national space are public policies which address a perpetual national interest. Not only because it is the habitat of the population, the physical means on which its history is recorded –the biography of its own identity-, but also because national space is an essential factor in the economy and the feelings of national identity. National space, territory, and the sea adjacent to their coasts are, ultimately, as Jean Jaures puts it, the only property that poor have.

For all of these reasons, the States are very rigorous in defending their national space. And they are right in doing so. Yet, in the era of globalization, except for some extreme cases in which some States resort to force (disputes that do not last too long and in which the aggressor is generally penalized), when States have territorial disputes they do not go down the avenue of violence and military deterence, which, is ever less deterring. Actually, States do just the opposite; they turn to international law, to peaceful settlement mechanisms.

In the XIX century, international politics was determined by the possibility of war, a very latent option. War had a legal status. The world was divided into regions because of the limited communications and transportation. And, consequently, strategy, not as a game of war but as a armed conflict, more likely than not, determined the way diplomacy should flow. The power was directly driven towards conquering new territorial spaces. Colonialism and expansion wars, including those in our continent, are clear examples of such historical account. Today, this is no longer the situation: war among nations is banned, as well as the use of force and aggression. In agreement with the new international law, disputes tend to be settled through diplomatic negotiation and judgments or awards. This is the path for the law, civilization, and justice. This explains why States continuously resort to the International Court of Justice or arbitration tribunals in order to settle their disputes or do so directly through different diplomatic negotiation methods.

To file a case before the ICJ is not an unfriendly act. Indeed, it is just the opposite; resorting to peaceful dispute settlement mechanisms and legal methods is a sign of good faith. The only friendly way to settle disputes is through peaceful methods. This is the diplomacy of the XXI century, which stresses the best of a long tradition of international law for the Americas and Peruvian diplomacy itself; which values the global trends in favor of peace and law, which actually 21

Maritime Delimitation with equity: the Case of Peru vs. Chile

exist; which strengthen the institutionality of the international system; and, which helps to institutionalize a governance of globalization based on the law, which is the strongest element of medium-size and small-size States.

To defend, within this context, the national interest, is the first duty of any citizen committed to his/her country. This principle is also valid for those who defend the national interests of the countries confronted in a legal dispute. The defense of national interests, through negotiation or the law, is the most civilized and friendly expression of diplomacy. This is its essence and ultimate purpose.

Hence, regarding the proceeding with the International Court of Justice, there is no room for unjustified startle incompatibility with the principles and rules of international law and the norms of good neighborhood spirit.

In every Nation, the relation between the national space, the population, and culture determines the feelings of national belonging and identity. In Peru, Peruvians have been living together in their territory and with the sea adjacent to their coasts for more than five thousand years. Perhaps, the relation between the territorial and maritime space and the population has been the most determining factor in the development of a national identity. Basadre has so expressed eloquently: “in 1824, what did a farm worker from Piura have in common with a farm worker from Cusco, for example? Very little, obviously. But the two of them, and other like them and their ancestors, lived within the same political and administrative sphere and not just since the XVI century, but for many centuries before the Incas. This impalpable mould influenced in one way or another in their childhood, youth, adolescence, elderhood, and their family members. How many European, Asian, and African peoples are devoid of such continuity in their historical evolution?�2 Certainly, Peru has followed an eventful path in forging its national identity. And in this process of wars, negotiations, and arbitration, Peru has gradually shaped its national boundaries, through a long process of definition of the national space of a Republican Peru.

However, it is not possible to conclude from this fact that the history of foreign affairs of Peru has been pledged to the land and maritime boundary problems.

A glance at the history of Peruvian diplomacy shows that since the beginning of Peru’s independence, the scope of the institutional diplomacy put forward by Torre Tagle was, on the other hand, open and plural in its agenda and willing to play, from the start, in the complex game-board of regional and world affairs.

The decree on free trade with Chile, of 01 June 1822; the summon to Latin 2

Basadre, Jorge, Historia de la Republica del Peru, vol. 1, Lima, Editorial Universitaria, p. IX. 22

I - Land and Sea: Their Incidence in Determining National Space and Awareness

American countries to the Congress of Panama in 1826 and, the Pan-American Congress of 1847; the proposal to reform the Inter-American System in 1971; the significant deployment of diplomatic efforts to enshrine the thesis of 200 miles; and, more recently, the initiative which led to the presentation, negotiation, and approval of the Inter-American Democratic Charter, are all evidence of such diplomatic drive. Despite this reality, the variables related to the conservation and defense of the national space certainly had a specific weight and gravitation of enormous importance.

As a consequence of this confirmation, Alberto Ulloa affirmed, perhaps exaggeratedly, in 1941, that in the “visible horizon, our international expression must be fundamentally territorial, and it has so been until now. Since we are not a superpower, since we have no universal policy interests, since our economic outreach is limited, we have lived for one hundred twenty years, and we shall yet continue to live for many more years, dependent upon our territory. The big international problems of our history have had this signal, in all directions of the Wind Rose”3.

Much earlier, Jose Maria de Pando, Minister of Foreign Affairs in 1823 (i.e. in the first years of the Republic of Peru), recalled in his treaty on international law that the obligation to “fix as precisely as possible the delimitations or limits of corresponding territories is a purpose of the utmost importance for all nations, in order to prevent disputes and even wars which have frequently arisen from uncertainty.”4 To follow this axiom through has been perhaps the most difficult and dramatic process of Peru’s republican history. This has meant for Peruvians to live in the Latin American country which has faced the most wars. Additionally, most of the Peruvian territory was occupied by foreign forces during the war with Chile in 1879; and, above all, a very high number of casualties among fighters and the civil population (men, women, and children); lives which were sacrificed in the battlefields from the very moment of our national independence until January 1995.

Historically, two pivotal points have directed the dynamics of disputes related to the Peruvian national space. From 1821 to 1929, the focus was the south boundary. In a first phase, it was driven by the irredentism for integration of the territories in High and Low Peru. This complex process shook the political lives Ulloa Sotomayor, Alberto, La posición internacional del Perú, Lima, Imprenta de Atlantida S.A., 1977, pp.

XIX and XX. 4 De Pando, Jose Maria, Elementos del derecho internacional, Madrid, Imprenta de J. Martin Alegria, 1827, p. 107.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

of Peru and Bolivia, used up many of their efforts in the battlefields, and ended tragically with the serious outcome that the military defeat of the war by Chile entailed for the two countries. In a second phase, after the war, and through diplomatic actions it was driven by the national mobilization to recover, through the negotiation table, the provinces lost in the battlefield. This process finished in 1929, on substantial issues, with the return of Tacna to the national territory, through the signing of the 1929 Treaty and its Additional Protocol.

With this new situation, the hegemonic interests of international relations of Peru turned to the northern frontier. It is true that already in the XIX century this pivotal point resulted in two wars, the first with Colombia in 1829 and, later, with Ecuador in 1860. In 1910, there was a pre-war situation with Ecuador.

However, during all this time and until the signing of the 1929 Treaty, the priority of Peru’s foreign affairs and national defense policy were focused on the disputes in the south. The tensions in the north were perceived as subsidiary events, as factors which made Peru’s foreign and national defense policies in the south ever more complex.

With the 1929 Treaty and its Additional Protocol, the southern frontier became more stable. At the same time, the 1922 Treaty with Colombia, irrespective of the negative sense of the secret negotiation which ended up by surrendering Leticia, had a significant strategic impact in the long term. It narrowed down to only one the historical disputes that Peru had to face in connection with territorial matters; since then, territorial issues were focused on the northern frontier and divided forever the interests and aspirations of Colombians and Ecuadorians, which theretofore, had been reciprocally connected.

The so called boundary issue with Ecuador was the only problem pending delimitation. Since 1942, such matter became a demarcation procedural incident, which would be settled, finally, in 1998. Under President Toledo’s Administration, a minor unsolved demarcation issue in the border with Bolivia was settled.

In this way, the State of Peru, after 182 years of existence, for the very first time had all of its boundaries delimited and demarcated. Peru had taken quite some time, almost all of its years of independence to satisfy the main obligations of States: to delimit and demarcate their territories, as mentioned by Jose Maria de Pando in 1823. This reality also explains the metaphor of the Wind Rose, used

by Alberto Ulloa in order to symbolize the weight of territorial issues on the political life of Peru and its foreign policy.

This history has created in the minds of Peruvians a healthy sensitivity regarding the conservation of national identity and space. The lesson learned from this 24

I - Land and Sea: Their Incidence in Determining National Space and Awareness

historical development is that the lack of national attention, foresightedness, and relaxation of national beliefs bring about tragic consequences. For this reason, the idea of Peru as a greater reality and possibility has been constantly present in the thoughts on national reality. Conservatives and Revolutionaries had confronting ideas on the economy, society and politics, but agreed on what Riva Agüero called “affirming Peru,”5 José Carlos Mariátegui “to make Peru more Peruvian,”6 Victor Andrés Belaunde, simply “Peruvianism,”7 and Basadre “the promise of the Peruvian life.”8 This drive in national determination led to the enactment of Supreme Decree 781, which in 1947, proclaimed [Peru’s] sovereignty and jurisdiction over 200 miles of sea adjacent to the national territory. Jose Luis Bustamante y Rivero so avowed when he said that “The Supreme Decree passed by the Government of Peru, with the approval of the Cabinet of Ministers, on 01 August 1947, integrates to the laws of our country the new concepts enshrined by the Law of the Sea. This decree also attributes to the legal system on the territorial sea of Peru the two basic objectives which today make up its characteristics: Man’s service through the pursuit of human wellbeing, and the protection and defense of the natural resources present in the national territory”. Each of the whereas clauses upon which the Decree is founded refers, in different ways, to the State’s mission of promoting, watching, conserving, exploiting, and protecting the natural resources in the whole coastal maritime area, which it classified as national heritage included in the national domain. And those same whereas clauses mention that it is a need to impede any abuse to the exploitation of the natural resources from damaging the economy of Peru and food production, which are natural interests. The provisions section of this decree recognizes that the State has authority to exercise its sovereignty in enforcing these protection duties and to expand the breadth of its maritime belt by 200 miles upon which the State shall exercise such sovereignty9.

The proclamation of the 200 miles and the subsequent strategy and diplomatic negotiation deployed by Peru, for over three decades, represent one of the most significant actions of Peruvian diplomacy. And it is, without a doubt, the most relevant contribution made to defining the Peruvian national space, by adding to the State’s sovereignty, in benefit of the population, a sea of 200 miles all along De la Riva Agüero y Osma, Jose, Afirmación del Peru, Instituto Riva Agüero, 1960.

Mariátegui, Jose Carlos, Peruanicemos al Peru, Lima, Editorial Amauta, 1975.

7 Belaunde, Victor Andres, Peruanidad, Lima, Libreria Studium, 1957.

8 Basadre, Jorge, La Promesa de la vida peruana, Lima, Augusto Elmore editores, 1990.

9 Bustamante y Rivero, Jose Luis, “Discurso en Homenaje a Alberto Ulloa,” Revista de la Academia Diplomatica del Peru, Lima, 1976, p. 48.

5 6

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Maritime Delimitation with equity: the Case of Peru vs. Chile

the coast of the national territory. And this is the outcome, only and exclusively, of the firmness and the lucidity with which diplomatic negotiation was carried out. The Republic of Peru will always be recognizant to José Luis Bustamante y Rivero, Enrique Garcia Sayan, Alberto Ulloa, and Alfonso Arias Schreiber, who were at the forefront of this huge task, as well as to the businessmen and fishermen who fought to make this 200 miles thesis a reality.

The sea is deeply rooted to the habitat, cultures, cosmologies of Peruvians in general, and particularly in the national determination. In ancient Peru, the sea was, simultaneously, a fundamental component of coastal habitats, through which settlers interacted daily, and a generous deity, from the depth of which life sprang daily. Garcilaso narrated with wise simplicity what this duality of the sea meant for Andean communities: “(…) they worshiped together the sea, which they called Mamacocha, which means Mother Sea, thereby implying that when the sea afforded fish to people, it was like a mother providing nourishment to its off-springs.”10 During Colonial times, the sea was the commercial and cultural bridge between Europe and Peru, as well as the source of power and strategic weakness, alternatively.

During the Republic, it kept its economic relevance, but not as a commercial route but rather as a source of wealth through whaling, extraction of “guano” from the islands and the birth and development of a dynamic fishing industry.

Peru, inserted in the global system where the environmental balance brushes risky thresholds, has one of the highest indicators of biodiversity in the world, mainly due to the contribution of its sea, which in this sense, offers an extraordinarily rich ecosystem in outcrops and nutrients11. Biologist Marco Espino states that the sea of Peru is located in “the most important area of outcrops in the world, with levels of productivity unequaled by any other marine ecosystem, and which consists of trophic level elements at the base of the food chain which supports important biomasses of pelagic species such as anchovy, which transforms vegetable protein into animal protein with high nutritional value”12. The resources from the Peruvian marine ecosystem make fishing the natural resource related activity which most contributes to the national economy; in terms of export volume it ranks second, only after mining, though it generates more jobs than the latter.

De la Vega, Inca Garcilaso, Los comentarios reales de los incas, Paris, Biblioteca de Cultura Peruana, 1938, p. 75.

11 Cf. Vegas Velez, Manuel, “La pesquería peruana”. In: Peñaherrera del Aguila, Carlos (dir.), Atlas histórico, geográfico y de paisajes peruanos, Lima, Instituto Nacional de Planificación, 1970.

12 Espino, Marco, “Lecciones Aprendidas”. In: Pedro Trillo (editor), El libro de oro de la pesquería peruana, Lima, Sociedad Nacional de Pesquería, 2003, p.129.

10

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I - Land and Sea: Their Incidence in Determining National Space and Awareness

Nowadays, capture levels of the fishing industry in the world tend to decrease, while those of Peru experience sustainable growth. According to Espino, while “almost all of the fisheries in the world are overfished or collapsed; Peruvian fishery is one of the few that has shown clear signs of recovery and consolidation.

To conclude, in the last 20 years, the world’s unloading levels have decreased accounting for about 15 million tons; however, Peruvian fishery has shown clear signs of recovery with sustainability”.13 Nevertheless, the sea shall not just be a source to capture resources and to create employment. One of the most serious problems Peru faces is the nutritional deficit of scores of its population. The right to adequate food is a basic human right.

The World Bank has indicated that the percentage of malnourished children under five in Peru in 2002 was 26%, 18% higher than the Latin American average14. The report “A New Social Contract for Peru,” also by the World Bank, points out that malnutrition, specifically, is an area in which Peru lags far behind its neighbors15.

And, in accordance with FAO indicators, the sub-nutrition percentage of Peruvian population is 13%16. To reverse this situation is one of the basic tasks of Peruvian democracy and of sustainable growth with redistribution and social cohesion. In this task, the sea is an essential source of resources which shall be used to redress this situation.

At the same time, Peru is a net importer of foodstuff, which makes the situation worse and makes the food problem a structural one. The sea holds one of the keys that would allow Peru to solve its food and nutritional deficit. The development of fishing for human consumption, under this approach, should be a key element for food security of Peruvians.

In this way, the sea is not just part of Peruvians’ habitat and culture; a connection which dates back to the time when the gods determined the fishing cycles. The sea is also an essential component of its economy –a promising source that has not yet delivered its full potential in feeding the population; and, obviously, represents an essential component of national security and defense.

From a historical perspective, Basadre pointed out that in the past Peru did not really have a marine awareness, since, according to him, to a certain extent, particularly in the XIX century, Peru lived with its back to the Pacific Ocean, perhaps won by the telluric orientation of its ancient civilizations.

Idem., p. 142.

Cf. Daniel Cotlear (editor), Un nuevo contrato social para el Perú, Washington, Banco Mundial, 2006, p.48.

15 Idem.

16 Cf. FAO, El estado de la inseguridad alimentaria en el mundo, Roma, Organización de las Naciones Unidas para la Agricultura y la Alimentación, 2006.

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Today, the situation is different. The development of the national fishing industry, the inclusion of fish into the popular diet massively, the ever more widespread perception among Peruvians of its strategic and economic value, and its privileged condition as a hinge between South America and the Pacific Basin have turned the sea of Peru, finally, into a pivotal element of national awareness.

From a foreign policy perspective, the sea, as part of the Peruvian national space, has contributed to developing the national identity. The integrating character achieved by the claim of sovereignty and jurisdiction to a distance of 200 miles is prove thereof. In a unity not often seen, the State, entrepreneurs, fishermen, and other workers, men and women from all shades of Peruvians, all came together to see through this effort.

The national space, the territory, and the sea, as space shared by multiple social, ethical, and cultural expressions, have played a catalytic role in Peruvian history, contributing to forge the notion and feeling of a nation and a nationality. The deep scar imprinted in our national history by wars and territorial negotiations has instilled among Peruvians a healthy sense of territorial nationalism that has exceeded any revenge and expressions of chauvinism. In Peru, it is even possible to feel generous nationalism. At the same time, the imagination of the continental unity and the opening towards the world have strengthened since the Confederation of the Andes, at the beginning of the Republic (1826), and the Peruvian impetus to create the South American Community (2005), the national feelings of brotherhood and solidarity with neighboring countries and with the international community.

It is worth affirming, then, that Peru is a country with pure national feelings, and with a deep feeling of continental solidarity. The task of the nation in times of globalization is to consolidate the national determination upon the solid foundation of a society that is less unequal and with important bonds of social cohesion. National identity and social cohesion, in turn, are the foundations that ensure long-term democratic stability and viability of a modern and competitive economy.

In the specific case of the maritime dispute between Peru and Chile, these variables shall feed into a peaceful firm diplomacy which, using the legitimacy of international law and the support of national cohesion, will find a historical solution to a pending problem which, as we have reviewed, not only involves sovereignty and national awareness, but also the economic life of a country and the forging of a future of neighborly cooperation and understanding with historical stability and free from boundary issues.

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II INTERNATIONAL LAW OF MARITIME DELIMITATION AND THE PERUVIAN-CHILEAN MARITIME DISPUTE

Chapter 1: The Formation Phase of International Law of Maritime Delimitation and its Gradual Evolution: Maritime Spaces under the Jurisdiction of the States and the Limits of the Maritime Boundaries

The international law of maritime delimitation —in its principles, institutions, and rules— despite advances achieved in the last four decades, is still at a formative phase. In fact, it is the international law branch that deals with spaces of State sovereignty and jurisdiction, which have recently evolved. Although there is a positive legal body —the Geneva Conventions of 1958 and the Law of the Sea Convention of 1982— it is still, in essence, a customary law which is in full development. This fact endows its rules with relative flexibility, as a result of innovative actions of the case law of the International Court of Justice and the Arbitration Tribunals17. Today, there is certainly a normative “corpus” of principles and general rules; however, the case-by-case basis i.e., the application of the delimitation rules to each dispute, their implementation to each specific reality, continues to feed into the development of its principles and governing laws18.

Until 1958, the general principle governing international maritime law was that of the “freedom of the seas”, supported and defended particularly by the world and regional superpowers. The practical application of this principle implied, in times of peace, the circulation and exploitation capacity of natural resources from the sea without any other restriction than the three miles of territorial sea recognized by the international customary law of the time. During times of war, this meant full freedom of strategic movements. For several centuries, free trade and movement of navies got confused in the trade and military expansion of the superpowers.

17 Cf. Kolb, Robert, Case Law on Equitable Maritime Delimitation, Digest and Commentaries / Jurisprudence sur les délimitations maritimes selon l´équité, Répertoire et commentaires, New York, Martinus Nijhoff Publishers, 2003.

18 Cf. Lagoni, Rainer and Vignes, Daniel, Maritime Delimitation, Boston, Matinus Nijhoff Publishers, 2006.

Maritime Delimitation with equity: the Case of Peru vs. Chile

At the beginning of the XX century, an attempt to conclude multilateral agreements to regulate the relation between the freedom of seas regime and the competition and jurisdiction of States over the waters adjacent to its coasts failed.

Under the sponsorship of the League of Nations, the International Conference for the Codification of International Law was held at The Hague in 1930; one of its objectives was to arrive at a consensus on the extension of the territorial sea.

Many States disagreed with the customary practice of a three-mile territorial sea and wished to expand it to twelve miles. The conference agreed on a definition of territorial sea and recognized the spaces of inland waters and contiguous areas as sections subject to the sovereignty of States. However, the Conference did not agree on the size of the territorial sea and the contiguous zone19. As recalled by Pastor Ridruejo, “(…) the conference could not achieve this objective, although it is worth considering that, as of such Meeting, the small territorial sea area —three nautical miles— imposed by the maritime superpowers, loss the character of unquestionable rule”20.

Only twenty-eight years later was the effort revisited; this time with relative success. By initiative of the United Nations International Law Commission, the Conference for the Codification of International Law was held in Geneva in 1958. The event did not achieve all of the expectations originally set. Once again the attendees failed to agree on the breadth of the territorial sea21. In addition, the attendees failed to reach consensus on the jurisdiction of the State on fishing and economic activities over the adjacent sea. However, the Conference did achieve the signature of four important treaties: Convention on the High Seas, Convention on the Continental Shelf, Convention on the Territorial Sea and the Contiguous Zone, and Convention on Fishing and Conservation of the Living Resources of the High Seas. All these conventions entered into force in a relatively short period of time, by 196622.

In the 1958 Conference, many countries showed their disagreement with the classical rules on territorial sea. Among them, Peru, Chile, and Ecuador, which in 1952 had signed the Declaration on the Maritime Zone, also known as the Cf. Enrique Ferrer Vieyra, La extensión del mar territorial, según la conferencia de la Haya de 1930 y de Ginebra de 1958, Córdoba, Argentina, Universidad Nacional de Córdoba, 1960.

20 Pastor Ridruejo, Jose Antonio, Curso de Derecho Internacional, Madrid, Editorial Tecnos, 1998.

21 On the initial evolution of International Law on Maritime Delimitation and the outcomes of the 1930 Conference, particularly the impact of the notion and scope of territorial sea, cf. Gidel, Gilbert, Le droit international public de la mer, Paris, Editions Sirey, 1934.

22 On the debates, negotiations, and agreements of the Geneva Conference of 1958 with regard to territorial sea, cf. Orcasitas Llorente Luis, “El Mar Territorial en la Conferencia de Ginebra de 1958”, In: Anuario Hispano-Luso-Americano de Derecho Internacional, No. 1, Logroño, Universidad de La Rioja, 1959, pp. 70-82.

19

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Declaration of Santiago, which claimed —in a revolutionary action for the time— a 200-mile zone of sovereignty and jurisdiction23.

Nevertheless, the Declaration of Santiago was a unilateral aspiration. The Geneva Conference failed to reach a consensus on expanding the territorial sea up to 12 miles. Consequently, the law on maritime delimitation between neighboring States continued recognizing the lateral boundaries of States as a general rule only up to 3 miles seaward. A lot of pressure was made during the Geneva Conference to expand it to 12 miles, but efforts failed. The stagnation of the extension of the territorial sea was relatively set off with the recognition of the economic rights of coastal States to explore and exploit the natural resources on their continental shelf up to the end of its morphological shape.

Around 1952-1954, there were no general conventional rules on maritime delimitation; nor was there a recognized customary law. The outer boundary continued to be 3 miles despite unilateral proclamations that disavowed such boundary and that brought forward different positions: 6, 10, or 12 miles. There were no rules whatsoever, whether conventional or customary, as regards to lateral boundaries, i.e., concerning the maritime boundary between States with opposite coasts or States having lateral boundaries because of their adjacency.

Instead, there were a small number of State practices, bilateral agreements and arbitration awards, heterogeneous and diverse.

This “state-of-the-arts” of international law in force at the time is of the utmost importance to understand the juridical nature and scope of the 1952 Declaration of Santiago and the 1952 Agreement relating to a Special Maritime Frontier Zone concerning fishing, which is related to the legal dispute on maritime delimitation between Peru and Chile.

From an international law perspective, the maritime spaces referred to in those conventions are not the same as the ones that at the present time are included in the Law of the Sea. At the time (1952-1954), the lateral boundaries between 23 At a doctrine level, the thesis on the jurisdiction and sovereignty of the State over the natural resources and economic activities in the adjacent sea was already admitted by the mid-50s as a prerogative of the State’s sovereign rights. Hence, for example, the Inter-American Council of Jurists, at its third meeting, held in Mexico in 1956, approved the resolution with the title of Principles of Mexico, “in which it admitted the competence of each State to determine their territorial sea up to reasonable limits, taking into account geographical, geological, and biological factors, as well as the economic needs of its population and its security and defense”; and added that the coastal States also had a right to adopt measures for conservation and surveillance to protect live resources beyond the territorial sea”, cf. Contexto.org [on-line], Arias-Schereiber Pezet, Alfonso “La Tercera Conferencia sobre el Derecho del Mar y la participación del Perú”, Lima, 2001, http://www.contecto.org/pdfs/3ra_conf_derechos_ mar1.pdf [Query: 20 November 2007]

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Maritime Delimitation with equity: the Case of Peru vs. Chile

successive States were only intended for a 3-mile territorial sea. The analysis of the legal scope of certain aspects of the Peru-Chile dispute, particularly the nature and purpose of the legal instruments which according to the Government of Chile would have settled the issue in 1952 and 1954, cannot be done by extrapolating the current institutions of international law and the maritime delimitation of the time. We must take into account the rules and institutions that governed international law of maritime delimitation at the time. This excludes, for example, the possibility of assimilating the maritime areas referred to in the Declaration of Santiago and the 1954 Agreement to the maritime spaces which the present law of the sea holds under the sovereignty and jurisdiction of the States.

Towards 1952-1954, international law of maritime delimitation was just beginning. The practice of the States was, as has been indicated, heterogeneous and irregular. And the cases of delimitation by agreement of the parties were scarce, as were the ones settled through jurisdictional decisions24. The most outstanding of the latter was the award rendered on 23 October 1909 by The Hague Permanent Court of Arbitration in Norway vs. Sweden on the maritime delimitation of reefs and Grisbadarna25. In its Award, the Court determined that the maritime boundary between Norway and Sweden should be delimited following a line perpendicular to the general direction of the coast. Other awards rendered during these initial years of the law of maritime delimitation show the variety of criteria present at the time. The boundary between Tunisia and Libya in 1913 was also settled through an agreement following a line perpendicular to the coast. The Convention that delimited the zone of the canal between Panama and the United States, on September 2, 1914, established that the boundaries of the Canal Zone in the Pacific Ocean and Caribbean Sea shall be traced following a given latitude26.

Later, the practice of States was more driven, in most cases, toward the tracing of a median line. This was so, as pointed out by Ruiloba Garcia: Since the appearance of the first maritime delimitations, States have always tried to divide or distribute available natural resources in a fairer and more equitable manner. In the same way, the teachings of scholars have always had the idea of delimitation with equity. However, with the principle of equal sovereignty in mind, the States turned to the principle of the median line because they believed, Cf. Johnston, Douglas M. & Valencia, Mark J., Pacific Ocean Boundary Problems: Status and Solutions, London, Martinus Nijhoff Publishers, 1991.

25 Cf. François, J.P.A., “La Cour permanente d´Arbitrage, son origine, sa jurisprudence, son avenir”, 87 Rec., des Cours, 1955, pp. 498 ff.

26 Cf. Lucchini, Laurent & Voelckel, Michel, Droit de la mer, T. 2, V. I, Paris, Éditions A. Pedone, 1996.

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in principle, that the median line would achieve the most equitable solution.

However, the principle of the median line would not imply always and in every case an equitable division of the area to be delimited, given the specific circumstances of each specific case. Hence, along with the principle of equidistance, the States decided to take into consideration other factors, particularly of a historical or geographical nature, when implementing the delimitation of their territorial seas, in view of achieving an equitable result27.

Since at the time the only maritime space recognized by international law to be under the sovereignty of States was the territorial sea, there were very few cases undergoing delimitation processes, particularly when there were no real relevant circumstances along the coasts.

In this context, the maritime zone established by the 1952 Declaration of Santiago did not have an equivalent in international law. The current maritime spaces recognized thereby cannot be extrapolated to the situation existing in 1952 and 1954. In the evolution of international law, as new spaces under the rights of sovereignty and jurisdiction of States have been incorporated over time, the principles and rules applicable to delimitation have evolved and developed in a complex manner.

Ruiloba Garcia has appropriately described this process: Although the first delimitations date back to the XVIII century, it is only after the second half of the XX century that numerous and complex delimitation problems surfaced, fundamentally due to the extension of the breadth of the already existing spaces and, particularly, due to the bigger area on newly created spaces, the continental shelf and the exclusive zone, to the extent that such extension of maritime projections generated a bigger number of overlaps or intersections of the maritime spaces of States. In these cases, each of these States shall waive to the right to enjoy the whole space, to which it would otherwise be fully entitled, in accordance with international law, had such overlap not occurred, hence, it was necessary to trace a dividing line to delimit the spaces of each country. The severity of a dispute relating to a maritime boundary varies depending on the space to be delimited; thereby existing direct relations between the appearance of new maritime spaces and more problems arising from the juxtaposition of the space projections and leading to a more complex solution. Typically, projections of territorial sea, whether 3, 6, or 12 nautical miles, do not usually collide28.

States became growingly interested in maritime delimitation as of 1958, when, as a result of the Geneva Sea Conference, the rights of sovereignty and jurisdiction over the continental shelf were recognized, and disputes over the exploitation Ruiloba Garcia, Eloy, Circunstancias especiales y equidad en la delimitaci贸n de los espacios mar铆timos, Zaragoza.

Real Instituto de Estudios Europeos, 2001, p.64.

28 Ibid., pp. 68 and 69.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

of maritime resources (fisheries and whaling) or energy deposits (oil) were prompted.

Until the continental shelf29 was included into the jurisdictional space of the coastal State, [...] the delimitation of the maritime spaces was a secondary issue, to the extent that overlapping of inland waters or territorial seas only occurred in very narrow sea strip. In any event, it was easier to settle any juxtaposition in a narrower sea strip than it is in a much bigger space, such as the continental shelf. After the 1958 Geneva Conventions on territorial sea and contiguous zone, and the continental shelf, the delimitation problems appeared in two other spaces: the contiguous zone and the continental shelf. With the enshrinement of the exclusive economic zone at the United Nations Third Conference on the Law of the Sea, a new space was created. Obviously, it is much harder to delimit boundaries in these three latter cases than in the first two30.

The delimitation, which was understood as restricted to a 3-mile territorial sea, became more appealing to States in 1958, when its boundary was extended to the continental shelf, especially because of its economic connotations. As from 1982, this interest was further expanded with the creation of new, much bigger spaces than those of the sovereignty and jurisdiction of States. At the same time, as a result of emerging realities, international law also evolved.

No sooner was the ratification process of the Geneva Convention completed and driven by a vigorous maritime nationalism which claimed the permanent sovereignty of States over their natural resources and economic activities, an ever broader review process of the principles and rules of international law began.

The principle of freedom of the seas was questioned and a number of States created a strong force affirming the capacities of the State to exercise its sovereignty and jurisdiction over the sea adjacent to their coasts up to a distance of 200 miles. This process ended in 1982, when on 30 April, at the United Nations Third Conference on the Law of the Sea, the States approved the United Nations Law of the Sea Convention and it was subsequently signed by one hundred and ten countries in Montego Bay. The Convention and the 1958 Geneva Conventions make up the conventional law in force on the law of the sea and more specifically on the law of maritime delimitation.

For a detailed review on the delimitation of the continental shelf after the approval of the 1958 Geneva Convention, cf. Lang, Jack, Le plateau continental de la mer du Nord: Arrêt de la Cour Internationale de Justice, Paris, LGDJ/Montchrestien, 1998.

30 Ibid., p. 169. In the evolution of the criteria for delimitation and areas to be delimited, cf. Labrecque, Georges, Les frontières maritimes internationales: Géopolitique de la délimitation en mer, Paris, Editions L´Harmattan, 2004.

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Its rules on maritime delimitation are too general, particularly in connection with the delimitation of the continental shelf and the exclusive economic zone, because they only state that in the case of territorial sea an equidistant line should be used and, in the case of the exclusive economic zone, an agreement between the parties leading to an equitable solution.

The insufficiencies of conventional rules have been gradually addressed by the jurisprudence of the International Court of Justice and the Arbitration Tribunals, as well as by the behavior of the States. In this way, customary law has developed principles, rules, and methods for maritime delimitation which have assimilated, developed, and made more accurate conventional rules. Maritime delimitation law is, from this perspective, essentially a case law.

Among such principles and rules applicable erga omnes through customary law, the ones on maritime delimitation among adjacent States have a special place.

Unlike the law prevailing in the 50s, which only accepted the 3-mile territorial sea, the law in force recognizes the State’s sovereignty and jurisdiction over inland and historical waters, the territorial sea, contiguous zone, continental shelf, and exclusive economic zone, “as a set of spaces and institutions set out in order of greater or lesser proximity to mainland under the jurisdiction of a coastal State, generally up to 200 miles measured from the baselines, and from which the Sea’s breadth is determined”31.

From the viewpoint of the establishment of the outermost boundaries of the adjacent sea and the exercise of State sovereignty and jurisdiction, these spaces can be grouped into three categories: 1) Inland waters, i.e., those of bays, ports, gulfs, indentations, internal seas, etcetera which are subject to the national territory legal system; 2) ocean space adjacent to the territory of a State up to a distance of 200 miles, which edges are the outer limit of the national sea; and 3) spaces through which the maritime boundary between two neighboring countries is traced; whether such countries are opposite or adjacent to each other: territorial sea, contiguous zone, continental shelf, and exclusive economic zone.

In the case of Peru, which has not acceded to the Convention on the Law of the Sea, these spaces are consistent with the extension of their maritime domain32.

Diez de Velasco, Manuel, Instituciones de Derecho Internacional Público, Madrid, Tecnos, 1994, p. 419.

Cf. Caflisch, Lucius, “Les zones maritime sous juridiction nationale, leurs limites et leur délimitation”.

In : Revue Générale de Droit International Public, Paris, 1983.

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Chapter 2: The State’s Legal Title over the Sea: The Principle of Adjacency (Land Dominates the Sea), the Outer Limit, and Maritime Delimitation

International law of maritime delimitation, both conventional and customary, base the rights of a coastal State on such spaces on the principle that “the land governs the sea”, which establishes that the State’s sovereignty and jurisdiction over the sea adjacent to its coast is a byproduct of the exercise of the State’s sovereignty over its territory. This means that any State with a sea, just for that fact, expands its jurisdictional sovereignty and rights over such maritime spaces up to a distance of 200 miles.

The principle “the land governs the sea” or the principle of adjacency has no geographical foundation, but instead a legal one. This is the grounds for the titles held by the State over the seas along its coasts. It is at the root of the legal title over the sea. As the International Court of Justice has pointed out, the land is the legal source of the powers that a State can exercise over its maritime projections33, or, in other words, “it is the land which confers upon the coastal State the right over the seas along its coasts”34. It is the State’s sovereignty over its territory which is extended over the adjacent sea. It is not a matter of a physical fact, in the sense that the land mass determines sovereignty over the sea, but rather a legal reality. The sovereignty exercised upon the territory is projected towards the adjacent sea. The ICJ has determined the legal nature of the principle “the land governs the sea”, when pointing out that it is based on the State’s sovereignty on the territory that the rights to exploitation and exploration over the continental shelf can be granted to the State itself ipso jure in virtue of international law. The ICJ has been eloquent in affirming that the rights over the continental shelf, from a legal perspective, both have stemmed from the State’s territorial sovereignty and have derived automatically from it35.

Concerning internal waters36, the sovereignty and jurisdiction system is equal to territorial sovereignty, since it is an extension thereof. Within them, the coastal State exercises without limitations its sovereign rights and can prohibit or impede, therefore, foreign vessels from coming into the area, with the only exception of emergencies in case of accidents. This is precisely the distinguishing element Cf. ICJ, Judgment on the matter concerning the North Sea Continental Shelf cases, Recueil des Arrêts, 20 February 1969, para. 96.

34 ICJ, Judgment on the Fisheries case (United Kingdom vs. Norway) 18 December 1951, p. 133.

35 Cf. ICJ, Recueil, 1969.

36 Internal waters means those waters which are comprised within the baseline from which the territorial sea is measured. Within the internal waters, the State exercises absolute sovereignty under the same terms as it does in its territory; consequently, there is no innocent passage.

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with the territorial sea. Within the internal waters, the State “rejects access (…) to foreign vessels except in case of danger, to the extent that within territorial seas, foreign vessels enjoy the right to innocent passages which also comprises stopping or anchoring if navigation is hazardous or caused by force majeure”37.

The legal regulation of internal waters is a matter which is exclusive competition of domestic laws. These essential characteristics distinguish the legal system corresponding to inland waters, applicable upon territorial sea which is subject to the principle of innocent passages.

The establishment of maritime boundaries entails the tracing of interior boundary in connection with mainland or internal waters, the outer boundary in front of the high seas and the lateral boundary which separates the national seas of adjacent or opposing States38. This latter case corresponds properly to maritime delimitation.

Establishing boundaries of internal waters is an act of domestic law which must be compatible with the rules of international law in fixing baselines39. They are traced through the fixing of such baselines which, normally —to the extent that there are no obvious geographical accidents-, can be consistent with the normal low tide lines and straight lines, when the geography and the characteristics of the coastline so require.

The outer limit of the adjacent sea of the coastal State is defined as the corners of the maritime space in the direction of the high seas up to a distance of 200 miles. The establishment of the outer limit is essentially a domestic and sovereign decision of the State. It is achieved through a projection towards the high seas up to a distance of 200 miles measured from the reference points in the baselines40.

Maritime delimitation, on the other hand, is the equitable division process of overlaps between maritime areas of two opposing or adjacent States which have lateral boundaries. As Esperanza Orihuela Calatayud has rightly stated: “[it is] the tracing of a line which divides marine spaces belonging to two or more States when there is juxtaposition of the jurisdictions which they exercise over the sea”41.

Diez de Velasco, Manuel, Instituciones del Derecho Internacional Público, Madrid, Tecnos, 2007,p. 420.

Cf. Gonzalez Campos, Julio D. et al., Curso de Derecho Internacional Público, Bogota, Civitas, 2000, pp.

610-611.

39 The baseline is the one used to measure the territorial sea and other maritime areas subject to the State’s sovereignty and jurisdiction. The baseline divides the territorial seas from the internal waters.

40 Cf. Bierzanek, Remigiusz, “Les frontières entre les Etats et les espaces au-delà de la souveraineté étatique".

In : Essays in International Law in Honour of Judge Manfred Lachs, The Hague, Martinus Nijhoff Publishers, 1984.

41 Cf. Orihuela Calatayud, Esperanza, “La sentencia dictada por el TIJ en el asunto relativo a la delimitación de la plataforma continental entre la Jamahiriya Árabe Libia y Malta”, Revista Española de Derecho Internacional, N° 40, 1988.

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The law governing maritime delimitation in each of the zones which corresponds to the projection of the sea adjacent to the coasts up to a distance of 200 miles is, substantially of a customary nature, as has already been mentioned, without of course eluding the provisions set forth in the 1958 Agreements and the 1982 Law of the Sea Convention for States bound by these agreements. The difference between the diverse sources of the law has faded with the evolution of conventional rules and with the jurisdictional practice of the International Court of Justice and the arbitration tribunals. Now, we can confidently say that they all make up an “integrated corpus�.

It is within this context that we must analyze such conventional and customary rules that are apply to maritime delimitation, bearing in mind that it is still a law in progress, since the work of the International Court of Justice continues to contribute creatively on a case by case basis. In terms of doctrine, there is widespread consensus in the sense that we already have a body of principles, rules, criteria, and methods which make the law on maritime delimitation a coherent and predictable, though flexible, legal reality.

Chapter 3: International Law of Maritime Delimitation between 1947 and 1957

Between 1947 and 1957, international law of maritime delimitation had an incipient development: it was still in the first phase of its formation. There were no substantive conventional rules and customary law only recognized the sovereignty of States over the territorial sea up to a distance of three miles, and it began to do so on the continental shelf up to a distance consistent with its morphological extension. The varied States practical experiences, which were still few and early for maritime delimitation, were inspired by the four delimitation methods: tracing of the median line; perpendicular line following the general direction of the coast; extension of the land boundary and, the perpendicular line to the coast from the spot where the land frontier reached the sea. In some very rare cases, the method of the parallel was used, but only when no equitable result would be achieved given special circumstances shaping the spaces.

In 1930, there was a first attempt to enact conventional rules to be applied in general on the Law of the Sea, by calling to a Conference for the codification of international law at The Hague. In the agenda the matter of territorial sea and its extension was included. Although the Conference reached conceptual progress during the debates and its work on the nature of territorial sea, it failed 40

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to reach any result because no agreement was reached on the determination of its extension42.

International customary law only recognized the territorial sea up to a distance of three miles, regardless of the appearance, already at that time, of positions favoring its expansion. Neither the contiguous zone nor the continental shelf was included in the institution of the general international law. In 1942, Venezuela and Great Britain signed an agreement, which could well be the first in history, regarding the continental shelf. Through this instrument, both countries recognized their rights over the seabed of the Gulf of Paria.

The problems arising out of the fishing activities of big foreign fleets, particularly salmon and tuna fish, as well as indiscriminate whaling at the beginning of the 40s, not only affected the South Pacific but also the United States of America.

In Bristol Bay (Alaska), foreign vessels were capturing huge amounts of salmon; this not only harmed considerably the United States of America’s economy but also endangered the species.

As a measure to defend the fishery economic interests of the United States of America, President Harry Truman passed two proclamations on 28 September 1945: one on jurisdictional rights over the continental shelf (Proclamation 2667) and the other regarding the regulation and control of fisheries in certain areas of the high seas (Proclamation 2668)43. With regard to the continental shelf, the Truman proclamation states that “(…) the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control”44.

The proclamation was made under the principle of reciprocity, for this reason the United States of America recognized those same rights to other third party States. The proclamation had a very big impact on the evolution of the Law of the Sea at the time and on other like proclamations or on even more audacious proclamations, such as the one made two years later by the South American countries of the South Pacific. The Truman Proclamation was carefully worded in order to ensure that its economic and mining-energy objective would not On the agreements of the 1930 Conference and a critical analysis of its works, cf. Gidel, Gilbert, Le droit international public de la mer, vols. 1-3, Paris, Libraire Duchemin, 1981.

43 Truman, Harry, 28 September 1945 proclamations, No. 2667 on natural resources of the subsoil and the seabed of the continental shelf and No. 2668 on the conservation and protection of fishery resources.

44 Cf. Ulloa Sotomayor, Alberto, “El Régimen Jurídico del mar”. In: Revista Peruana de Derecho Internacional, No. 51, p.42.

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collide with the international law in force at the time; for this reason, it did not establish sovereignty on the high seas area subject matter to such proclamation, but did establish jurisdictional and control rights.

The Truman Proclamation encouraged the schools of thought which contested the classical institutions of international law of the sea already existing in Latin America. Mexico, Argentina, and Panama passed similar declarations45.

However, the true force that triggered the change of International Law of the Sea was in the initiatives of Chile and Peru in 1947. Both countries passed a number of decrees which, for the first time in history, claimed exclusive sovereignty and jurisdiction on the adjacent ocean waters up to a distance of 200 miles, including the soil and subsoil, in order to conserve, protect, and exploit their renewable and non-renewable marine resources.

The proclamations of Peru and Chile over the sovereignty and jurisdictions of their States on the continental shelf, the sea adjacent to their coasts, including the soil and subsoil, had a significant impact at the time. Jean-Marc Hoeffel has synthesized this by stating that Peru, by extending its national sovereignty and jurisdictional area up to 200 miles, was acting as a pioneer country which, since 1947, opened the path to contest the rules of the Law of the Sea: “En étendant sa ‘zone de souveraineté et de juridiction nationales’ à 200 milles, le Pérou faisait œuvre de pionnier en ouvrant, dès 1947, la voie à la contestation de règles du droit de la mer. Même si par la suite la position péruvienne n’a pas toujours servi de modèle aux États qui ont étendu leur souveraineté maritime au-delà des 12 milles, les motivations avancées par le Pérou allaient souvent être reprises par ces États. Ainsi, lors des deus Conférences de Genève sur le droit de la mer en 1958 et 1960, la plupart des États du Tiers-monde épousèrent en grande partie les conceptions énoncées dans le décret péruvien"46. [By extending its national sovereignty and jurisdictional area to 200 miles, Peru was acting out a pioneer role in opening in 1947 the path to question the rules of the Law of the Sea. Although, later, Peru’s position did not serve as model for States to extend their sovereignty beyond the 12 miles, the arguments presented by Peru were frequently used by such States. Hence, after two Conferences in Geneva on the Law of the Sea, 1958 and 1960, most of the Third World countries adopted to a great extent the concepts enshrined in the Peruvian decree.]

The Mexican Declaration, October 1945, claimed jurisdictional rights over the whole Continental Shelf adjacent to the coasts of Mexico; the Argentinean decree of October 1946 claimed sovereignty over the epicontinental sea and the Argentinean continental shelf. The Panamanian claim was included in the Constitution passed on 01 March 1946, which included the continental shelf into the national territory regime.

46 Hoeffel, Jean-Marc, La Zone Maritime Péruvienne de Souveraineté et de Juridiction Nationales, Extrait de la Revue Générale de Droit International Public, No. 2, Avril-Juin 1975, Éditions A. Pedone, Paris, p. 4.

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What is important from the Chilean Declaration and the Peruvian decree, from the viewpoint of the development of law applied to maritime delimitation, are their provisions on the ocean space subject to the State’s sovereignty and jurisdiction, i.e., on the outer limit of the sea adjacent to their coasts. They were contesting the existing international law, which in broad terms only recognized sovereignty and jurisdiction upon a three-mile territorial sea. At the time, although it is true that debate on the continental shelf and on the exercise of customs and police rights in an area in the high seas which was called “contiguous zone” were clung, the only space recognized by international law was the three-mile territorial sea.

Peru and Chile, through their proclamations, started a path that caused to revisit the classical rules of maritime international law. For this reason, the reflection on the legal nature of the claimed 200-mile zone is important. This is a difficult and complex matter, in which there has been no consensus in any country. For the President of Peru who signed the decree, Jose Luis Bustamante y Rivero, this was an extension of the territorial sea: Although the text does not expressly use the term ‘territorial sea’, it does use certain legal terms, among them ‘sovereignty’ and ‘domain’ which are typically used to refer to the State’s properties and which vests upon such maritime extension recently created the true nature of ‘territorial sea’. The 200-mile zone was created with the characteristics that international law attributes to the territorial sea; i.e., as a zone in which it expands its full jurisdiction as a State as an effect and derivative of its sovereign power47.

On the other hand, Enrique Garcia Sayan, the Minister of Foreign Affairs of Peru, who initialized Supreme Decree 781 along with Bustamante y Rivero, affirmed the opposite. In a number of papers, he denied that the decree had created a 200- mile territorial sea. For Garcia Sayan, this was an area with special characteristics in which the rights of sovereignty and jurisdiction have an economic and functional nature for the exploitation and conservation of fishery and mining resources. By excluding the notion of territorial sea as a legal feature of the maritime zone claimed by S.D. 781, Garcia Sayan expressed that “(…) this notion was inappropriate and seemed inconvenient to express the nature and manifestation of exclusive sovereignty and jurisdiction regarding the protection of marine resources up to a distance of 200 miles”48. Alberto Ulloa Sotomayor49 and Alfonso Arias-Schreiber50 shared Garcia Sayan’s opinion.

Bustamente y Rivero, Jose Luis, “200 millas”. In: Revista Documenta, No. 20, Lima, Agosto 1972, p.17.

Garcia Sayan, Enrique, Derecho del Mar: las 200 millas y la posición peruana, Lima, 1985, p. 70.

49 Ulloa Sotomayor, Alberto, “El régimen jurídico del mar”. In: Revista Peruana de Derecho Internacional, t. XVII, No. 51, pp.5-81.

50 Arias-Schreiber Pezet, Alfonso, “La evolución del Derecho del Mar y la participación del Perú en ese proceso” In: Revista de la Academia Diplomática del Perú, Enero-Marzo 2002, pp. 223-262.

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For Ulloa, Peruvian Law [...] was based on the nature of the continental shelf, in which it is necessary to proclaim its belonging to the national heritage of the natural resources existing in the continental shelf and that the State shall protect, conserve, and regulate the use of fishery resources and other natural resources in the epicontinental waters; in which the Constitution of the State establishes that any natural source of resources belongs to the State and it is a duty of the State to determine the nation’s maritime domain. This Peruvian decree is also grounded on the peculiarity of the “guano” fertilizer resource51.

Chile experienced a similar process. In the letter with which the Declaration of Santiago was sent to the Chilean Congress for approval of such declaration, the President of Chile grounded his request as follows: “The boundaries of territorial sea have been extended, replacing the old three nautical miles concept (…) by a new legal-philosophical concept which is more in line with the vital claims of our peoples (…)”52. In this way, the 200-mile zone claimed in the Declaration of Santiago is recognized a territorial nature. Later, at the same time as the negotiations of the III Law of the Sea Conference was held, Chile changed its view, assumed a patrimonial thesis, and included the text of the 1982 Convention into its domestic laws53.

The debate on the legal nature of the Declaration of Santiago has still not ended.

Beyond the lack of consensus on the legal nature of the maritime zone, its legal nature is not consistent with the four spaces recognized by the existing international law, which at the time did not even exist in the theoretical debate. At the same time, it is pertinent to confirm that at the time it was not possible to have lateral delimitations that would be valid for international law on the basis of unilateral claims.

From the viewpoint of the spaces subject to maritime delimitation following the principle of temporality, international law, in force from 1947 to 1954, only recognized delimitations over the territorial waters; this is separate from the two interpretations regarding the legal nature of the mentioned decrees. And the territorial sea at the time, as has been pointed out, was recognized only up to three miles.

The protests by some countries, such as the United States of America and Great Britain are representative of the international law of the time on the spaces Ulloa Sotomayor, Alberto, Derecho Internacional Público, t. I, Madrid, 1957, p.549.

Orrego Vicuña, Francisco, Chile y el derecho del mar, Santiago de Chile, Editorial Andrés Bello, 1972, p. 38.

53 Cf. Llanos Mansilla, Hugo, Los cincuenta años de la tesis chilena de las 200 millas marinas, Santiago de Chile, Universidad Central de Chile, 1998.

51 52

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upon which the State’s sovereignty and jurisdiction was recognized. The Chargé d’Affaires a.i. of the United States of America in Peru, R. M. Lambert, presented to the Ministry of Foreign Affairs of Peru the reservation made by his country to Supreme Decree 781, emphasizing that: “[…] the Peruvian Decree had declared national sovereignty over the continental shelf and the seas adjacent to the coasts of Peru, beyond the generally accepted limit for territorial waters”54.

The reservation made by Great Britain was even more explicit: The action of the Government of Peru […] claiming that sovereignty can be extended upon broad areas of the high seas above the continental shelf, seems to be irreconcilable with any principle accepted in international law, governing the extension of territorial seas heretofore recognized by the Government of Peru or most of the maritime States. In connection therewith, it is permissible to point out that the Proclamation by President Truman in September 1945, while affirming certain claims to control and conserve certain fishing areas adjacent to the United States of America (its coasts), it did not claim any territorial sovereignty on such waters55.

The British Note further stated: While it is thereby recognized that the protection and control of fishery zones and the conservation of the resources of the sea is a legitimate interest of any country within the waters upon which the State projects its territorial jurisdiction, the Government of Her Majesty is firmly pinpointing to the Government of Peru, that it will not recognize territorial jurisdiction beyond the three-mile limit from its coast, nor regarding the British ships performing legitimate tasks in the high seas, they shall not be submitted to any measure adopted by the Government of Peru as a result of the Declaration, without the consent of the Government of Her Majesty56.

The status of international law between 1947 and 1954 with regard to the ocean spaces subject to the jurisdiction of the State and dependent upon lateral delimitation was, thus, both of status quo as of changing trend. Status quo with regard to the recognition of a single zone subject to the State’s sovereignty (territorial sea), no greater than 3 miles; but also changing after the unilateral declarations claiming 12-mile territorial sea, economic jurisdiction and control over the continental shelf, or more ambitiously, the extension of national sovereignty and jurisdiction up to a distance of 200 miles, novel concept for the time and subject to significant opposition.

Ministerio de Relaciones Exteriores, Instrumentos nacionales e internacionales sobre derecho del mar, Lima, 1971, p. 208.

55 Ibid., p. 216.

56 Ibid., pp. 216-217.

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The States, in the 40s and 50s, did not generally consider the issue of lateral delimitation. For this reason, the delimitation criteria contained in the Declaration of Chile and in the Supreme Decree of Peru did not only have the nature of a unilateral act but also asserted to be provisional, which reflected the incipient heterogeneity with which States approached this evolving matter.

After the 1952 Declaration of Santiago, in virtue of which Chile, Peru, and Ecuador claimed exclusive rights of sovereignty and jurisdiction up to a distance of 200 miles, including the soil and subsoil, the concerns on the rules of the Law of the Sea in the region and in the world became more noticeable and relevant, including, although with certain neglect, the matters concerning the delimitation of territorial sea.

The International Law Commission, in 1953, upon a mandate from the General Assembly, analyzed the delimitation methods among States facing each other or among States with lateral frontiers. The Commission arrived at the conclusion that the equidistant line was the one which offered the best conditions to give the delimitation an equitable solution57.

This was, at the beginning of the 50s, the trend in the teachings of scholars and the most widespread practice at an international level. However, no international custom was enshrined in that sense, let alone any regional customs. And this made sense, with such small territorial seas, the need to delimit was not obvious; it was only necessary when there were obvious overlaps between the areas of territorial seas of adjacent States. However, as from 1950, the unilateral positions to expand the territorial sea from 3 to 12 miles began to spread, adding to the thesis some European countries claims, which would ultimately influence the lateral boundary issues58.

These trends were reflected in the opinio juris in Latin America. Hence, the II Congress of the Hispanic-Portuguese-American-Philippine International Law Institute held in Sao Paulo in 1953 approved a Resolution under the heading of “Issues on Maritime and River International Law”. The resolution contained substantive elements taken from what could be considered the opinio juris of the region, in 1953 on the territorial sea, the submarine shelf, the “complementary sea”, the relations with the high seas regime, the delimitation of the submarine shelves, and the contiguous zone.

Cf. Beer-Gabel, Joëlle, “Variations sur la notion de frontière maritime”. In : Droit de la Mer, Etudes dédiées au Doyen Claude-Albert Colliard, Paris, Éditions A. Pedone, 1992.

58 Between 1948 and 1973, unilateral proclamations expanding the State’s sovereignty and jurisdiction on the territorial sea, the continental shelf, or the conservation and fishing zone were made by: Costa Rica, Island, Nicaragua, Guatemala, Philippines, Saudi Arabia, Honduras, Pakistan, El Salvador, Brazil, Korea, Ethiopia, India, Ceylon, Ghana, Cameroon, Senegal, Uruguay, Canada, Gabon, and Guinea. Cf. Faura Gaig, Guillermo, El mar peruano y sus límites, Lima, Amauta, 1977, p. 20.

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The resolution defined territorial sea as the “maritime zone which runs from the low-water line up to the imaginary line where the high seas begin. The State shall exercise sovereignty on the waters in its territorial sea under the conditions established in international law (…), it shall also exercise its sovereignty over the soil and subsoil of the territorial sea and the corresponding air space”59.

This definition shows the international law accepted at the time. This resolution adds to the definition elements related to the extension of territorial sea and, what is most important, on the criteria and methods for its delimitation. With regard to the extension, it assumes the claim of many countries since they did not agree on limiting their territorial sea to only 3 miles and wanted to extend it to 12 miles. Article 4 of such resolution establishes: The extension of the territorial sea shall be twelve nautical miles. As a general rule, the baseline to measure the extension of territorial sea shall be the lowest tide. Its measurement shall adjust, in regular coasts, to the arc of tangent circles drawn and whose center is at the outermost points in the coast; and in the rugged areas, by straight parallel lines resulting from joining such points60.

The legal rigor and care of the resolution when it points put the extension the sea should have forces it to use the expression “must be twelve nautical miles”, thereby showing that this was not a rule at the time. This was a programmatic, claimant position, a claim from the countries in the region.

Additionally, the resolution includes the development of a commonly accepted rule at the time used to delimit the lateral boundary of territorial sea: “The delimitation of the territorial sea of two adjacent States shall consist of a line perpendicular to the coast at the intersection between the two States, and along which all of the points are equidistant from those located at greater depth from said intersection of the two littorals”61.

The Council adopted decisions, also on the delimitation of the continental shelf62.

Article 16 points out: “Delimitation of the contiguous shelf shall be fixed by agreement of the coastal States. When the shelf is shared by several States which are separated by sea space, the demarcation shall coincide with the mean between Hispanic-Portuguese-American-Philippine International Law Institute, Second Congress, Sao Paulo, 1953, Resolution III: “Cuestiones de Derecho Internacional Marítimo y Fluvial”. In: Ministerio de Relaciones Exteriores, Instrumentos nacionales e internacionales sobre el derecho del mar, Lima, 1971, p. 272.

60 Ibid.

61 Ibid., p. 273 62 This Resolution defines the submarine shelf as “the seabed and the subsoil of zones contiguous to the coasts that are located outside the territorial sea zones up to the limit where the continental or island slope starts. The submarine shelf belongs to the coastal State, which exercises authority and jurisdiction over them in order to exploit and explore all of the natural resource”.

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the two coasts.”63 In addition, the Council also recognized the rule by which the submarine shelf of gulfs and bays to which two or more coastal States have access, belongs to such States as an international joint ownership (condominium), unless otherwise determined through treaties or customary practices. In a supplemental way, Article 18 of the Resolution establishes that, in the absence of an agreement to delimit the shelf of opposite or adjacent States, or when it is difficult to adopt a system for gulfs or bays, the parties shall turn to “the arbitration recognized by international law”64.

Resolution III of the Second Congress of Hispanic-Portuguese-AmericanPhilippine International Law Institute finally took into account the essential criteria contained in the aspirations of Peru and Chile in connection with the extension of their sovereignty and jurisdictional rights up to a distance of 200 miles in order to conserve, protect, and exploit its maritime resources, by recognizing a “Complementary Sea” in which the States which have no submarine shelf have authority and jurisdiction to regulate and audit fishing and hunting within the “high seas adjacent to the territorial sea, up to a distance of 200 nautical miles measured from its outer line”65. The complementary sea was understood as a trade-off because of the lack of continental shelf. Resolution III was approved by all participants to the Congress, including the delegates of Peru and Chile, whose countries had signed the Declaration of Santiago a year earlier.

Three years later in 1956, within the Americas strictly speaking and with a more defined level of representation, the Inter-American Council of Jurists, within the framework of the Organization of American States, gathered in Mexico, approved Resolution XIII which established the “Principles of Mexico” on the Law of the Sea. This declaration is also important because it established within the InterAmerican arena a set of principles and criteria on the Law of the Sea, including rules on delimitation, which confirmed the trends of the regional opinio juris of the time. The principles were related to territorial sea, continental shelf, conservation of live resources in the high seas, bays, and lateral delimitation between adjacent States from the fixing of baselines.

With regard to the extension of the territorial sea, the Resolution recorded the programmatic trend to expand it. The 12-mile distance was not proposed obviously because of the US presence; however, it did affirm the right of each country to set its extension: “The three-mile extension used to demarcate the territorial sea is insufficient and is not a general rule of international law.

Ibid., p. 274.

Ibid.

65 Ibid., p. 273.

63 64

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Therefore, an extension of the traditional maritime zone called the ‛territorial sea’ is justifiable. Each State is entitled to establish its territorial sea up to reasonable limits depending on issues relating to geography, geology, and biology, as well as the economic need of the population, and security and defense”66.

With regard to the continental shelf, Resolution XIII carefully worded the diverse positions of the United States of America and of the countries of the region, by not prejudging the nature of the rights on the continental shelf, but, also affirm them: “The rights of coastal states over the seabed and the sub-soil of the submarine platform or continental shelf, as well as the natural resources therein such as oil, hydrocarbons, minerals, and all marine species (flora and fauna) which are in constant physical and biological contact with the platform, including benthonic species”67.

With regard to the lateral maritime delimitation between adjacent States, the Inter-American Council approved within the mentioned Resolution XIII a section devoted to the baselines, in which the Council described the method to measure the breadth of the territorial sea and the tracing of baselines. Section D of the resolution establishes: “The breadth of territorial sea shall be measured, in principle, from the low-water line along the coast as shown on the large-scale nautical charts which are officially recognized by the Coastal State”68. It further adds that “straight baselines method can be used in any of the abovementioned cases, joining the furthermost points of the coast, islands, islets, or reefs”69.

From the lateral delimitation interest point of view, the resolution complements these provisions on the tracing of the baselines by establishing a criteria which implicitly means some delimitation methods while excluding others: “The tracing of these baselines cannot sensibly drift away from the general direction of the coast; and the extension of seas contained therein shall be sufficiently linked to the land areas”70.

When it states that the baseline cannot sensibly move away from the general sense of the coast, the principle excludes any delimitation through the geographic parallel, since it would be artificially cutting the maritime projection in the general sense of the coast. It is important to point out that this resolution was approved with the favorable vote of the delegates of Peru and Chile after they Third Meeting of the Inter-American Council of Jurists, Resolution XIII, “Principios de México sobre el regimen jurídico del mar”, Mexico, 1956. In: Revista Peruana de Derecho Internacional, No. 49, Enero-Junio 1956, p. 90.

67 Ibid., pp. 90-91.

68 Ibid., p. 91.

69 Ibid.

70 Ibid.

66

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had signed the Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone.

In short, at the time, the general international law recognized only one space which was subject to the State’s sovereignty and jurisdiction that of the territorial sea; and only for a distance of 3 miles. At the same time, there was an opinio juris that no longer accepted the 3-mile boundary and which proposed its extension to 12 miles. The countries of the region were leading this trend to amend the Law of the Sea. At the same time, the rights over the continental shelf and the State’s sovereignty and jurisdiction over the adjacent area up to 200 miles was affirmed by the opinio juris and the unilateral acts of certain States.

The rules generally accepted at the time in the world, and more specifically through the regional law on delimitation, established that the extension of the territorial sea should be measured from the baseline in low-tide and, exceptionally, using straight lines, always following the general shape of the coasts. In the same way, these rules for demarcation of the outer limit of the territorial sea, in the case of the delimitation between two adjacent States, the generally accepted rule was the equidistant line or median line, in accordance with the guidelines from the general international law.

Chapter 4: The Current International Law of Maritime Delimitation Applicable to the Peru-Chile Juridical Dispute: Principles, Conventional and Customary Rules, Delimitation Methods

The 1982 Law of the Sea Convention, ratified by Chile, not having been approved or ratified by Peru, cannot be enforced directly upon the dispute between the two countries as a conventional law; nor can the 1958 Convention on the Continental Shelf be enforced because neither Peru nor Chile are parties thereto. The principles, rules, and methods applicable to the dispute are those of the customary international law, which comprise and develop at a level of greater specification the rules of the convention. If the rules of the convention were enforced, the outcome would not be too different since such application would still be done in a coordinated fashion with customary international law. There is a process to unite the conventional and customary rules, but International Law of Maritime Delimitation, despite the progress achieved with the 1982 Convention, is essentially a customary law whose principles, rules, regulations, and criteria applicable to delimitation are much more developed, specific, and concrete that the conventional law71.

71

Cf. Antunes, Nuno Marques, Towards the Conceptualization of Maritime Delimitation: Legal and Techncial 50

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Therefore, the scope and content of the principles, rules, and methods applicable to the maritime delimitation contained in conventional and customary international law (which, as has been described, combines them) shall be applied to the specific case of the Peru-Chile Maritime Dispute.

1. Delimitation of the Territorial Sea and Contiguous Zone The delimitation of the territorial sea comprises the establishment of the boundary in front of the territory; i.e., in connection with the baselines and with regard to the territorial sea of neighboring States72. On this regards, the rules in the 1982 Law of the Sea Convention73 are the same as the ones established in Articles 12 and 24 of the Geneva Convention on the Territorial Sea and the Contiguous Zone74. Article 15 establishes the following: 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.75

In order to delimit the territorial sea, the 1982 Law of the Sea Convention enshrined the formula “equidistant-special circumstances”. The median line or equidistance method surfaces as the one that should be used to settle overlapping projections of the States’ lateral coasts. In this sense, Article 15 is based on the assumption that, in the case of territorial sea delimitation, the median line or equidistance will guarantee a fair outcome. However, the criterion of the median line or equidistance is general, but not absolute; the sense of the rule is to achieve a fair result. Consequently, alternative methods to the median line shall be used when this method does not guarantee fair results by reason of special circumstances or historic titles.

The rule establishes not only the right to delimit territorial sea through the median line but also, by reason of legal security, in turn denies the right of all States to extend the projection of their territorial seas beyond the median line, Aspects of a Political Process, London, Martinus Nijhoff Publishers, 2003.

72 Cf. Thierry, Hubert; Combacau Jean at al, Droit International Public, Paris, Éditions Montchretien, 1996, p. 347.

73 United Nations Law of the Sea Convention, New York, 1982.

74 Cf. Geneva Convention on the Territorial Sea and the Contiguous Zone, Geneva, 1958, Arts. 12 and 24.

75 Cf. The United Nations Law of the Sea Convention, Art. 15.

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unless otherwise agreed. The assumption underlying this rule is that the ocean space where such overlap or juxtaposition occurs is insufficient to warrant the projection of the territorial sea of two States with lateral boundaries. In this case, it is necessary and imperative to divide the water column into two, applying the median line with the purpose of achieving a fair result, in such a way that neither of the parties suffers from the amputation of its entire alleged maritime space.

The median line is achieved by, first, establishing a projection from the perpendicular lines from every point of the baseline of each State and then trace a median line or line 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 determination of territorial sea delimitation does not show the complexities of the corresponding continental shelf or exclusive economic zone, due to both the short length (12 miles) and its legal nature.

In the territorial sea, the State holds full sovereignty on the deep sea, the water column, and the airspace, correspondingly. Given the juridical nature of the territorial sea, there is no need for an agreement between the parties for its delimitation, because it is in essence a constitutive act arising out of the State’s sovereignty. In the event the territorial seas overlapping (this can only happen among States with lateral maritime frontiers), this shall be settled by agreement between the parties or via a jurisdictional method.

The International Court of Justice has indicated that the provisions of Article 15 of the 1982 Convention are part of the customary law. For the Court, both these rules and the ones set forth in Article 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone —practically identical— have a customary nature. And, in this sense, can be enforced upon any State, irrespective of whether or not it has signed such conventions.

The applicable customary law which, as has already been pointed out, assimilates the conventional provisions, can be summarized with the same formula “equidistance-special circumstance”. The way to fix the boundaries of territorial sea, the most meaningful and broadly practiced method, as the Court has stated several times through its jurisprudence, is to provisionally trace an equidistant line and afterwards examining whether or not it should be adjusted in order to consider and take into account the existence of special circumstances, in view of obtaining a fair outcome76.

76 Cf. CIJ, Arrêt du 16 mars 2001, “Affaire de la délimitation maritime et des questions territoriales entre Qatar et Bahreïn (Qatar c. Bahreïn) fond", Recueil des arrêts, avis consultatifs et ordonnances, 2001, p. 94.

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In the Judgment on the maritime delimitation and territorial matters between Qatar and Bahrain, the Court defined equidistance and established the requirements that have to be fulfilled in order to enable tracing thereof. This is a line in which 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. In order to trace an equidistant line as a frontier between territorial seas, it is necessary -as pointed out by the Court- that the corresponding States have been satisfied with the tracing of their baselines. It is not possible to delimit the territorial sea without previously having marked the baselines. Such baselines allow drawing the official maritime charts of each country. The baselines and official charts are requirements for the delimitation to take place77.

The equidistant line, as a clause to delimit the territorial sea cannot necessarily be likened, a priori, to the fulfillment of the fair outcome since the equitable test is always established through the outcome of the delimitation process.

Equitableness cannot be achieved a priori by tracing the equidistant line, but a posteriori with the confirmation of the outcome, whether or not equitable, resulting from such trace. For this reason, the Court has established, through its jurisprudence, a method divided into two phases or stages: dividing the overlapping area with an equidistant line, in principle, only as a working methodology in view of contrasting it with the existence or not of special circumstances if the latter did not exist, the equidistance itself is an equitable solution; conversely, the line shall be adjusted taking into account the special circumstances that have been identified in order to materialize the basic rule which is summarized in the principle of equitable outcomes.

In the case of Qatar/Bahrain, when settling the territorial sea boundary, the Court found that there were special circumstances based on the geographical nature and adjusted the equidistance line so that the delimitation would go through Fasht al Azm and Qit’at ash Shajarah and other small islands78.

To the extent that the intention is to draw a line that will yield equitable results, the tracing of such delimitation of the territorial sea shall be guided by equitable principles. In this sense, equidistance is not an end in itself, but rather a first option to be used in the absence of special circumstances.

77 78

Ibid., p. 94.

Ibid., pp. 108, 109.

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2. Delimitation of the Continental Shelf and the Exclusive Economic Zone a) Delimitation of the Continental Shelf

The continental shelf is recognized as part of the maritime space of States in the written law with the approval of the Geneva Convention of 29 April 1958.

Peru signed the Convention on 31 October 1958, but did not ratify it. Article 1 of the Convention defines the continental shelf as “the seabed and subsoil of the submarine areas adjacent to the coast but located outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters allows the exploitation of the natural resources of the said areas; as well as the seabed and subsoil of similar submarine areas adjacent to the coasts of islands”79.

Its juridical nature, in accordance with this provision, would be physical and geomorphologic; and its extension would be determined by such features. The rights of coastal States are related to the exploration and exploitation of the natural resources and are independent from their real or fictitious occupation.

The delimitation of the continental shelf between adjacent States is governed

by Article 6.2 of the 1958 Convention, which establishes: “Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.”80 In the absence of agreement between the parties and of special circumstances, the rule states that the division shall be an equidistant line, irrespective of any reference to fairness.

The provisions of the 1958 Convention were applied to approximately fifteen cases through direct settlements or through awards by arbitration tribunals. Beyond the literal nature of the provision, after several years of application of the Convention, four kinds of problems surfaced: 1) The juridical nature of the continental shelf, which, having been defined in terms of its physical and geomorphologic nature, created an evidently unfair situation between the States with a broad continental shelf and those that barely had any or had very narrow continental shelves. 2) The distance covered by the continental shelf, which in accordance with the 79 80

Geneva Convention on the Continental Shelf, 1958, Article 1.

Ibid., Article 6.2.

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geomorphologic criterion was very variable and unequal among the States, limited only by its own physical extension. 3) The determination on whether or not the behavior of States in connection with the application of its provisions had changed Article 6.2 of the customary law applicable to all States, even to those who have not ratified the Convention. 4) If the tracing of the delimitation through an equidistant line were a single binding rule.

The answers to these questions have appeared gradually through the Judgments rendered by the International Court of Justice, the new provisions found in the 1982 Law of the Sea Convention and the interpretation that the Court has given to them. In this process, deep changes have occurred, both in the conception of the juridical nature of the continental shelf and in the relation to the principles, rules, and methods on delimitation.

This process began with the Court’s Judgment on the North Sea Continental Shelf (Federal Republic of Germany/Denmark and the Federal Republic of Germany/Holland, 20 February 1969)81. The Judgment addressed each one of the four problems presented, and combined the status quo, in the case of the juridical nature of the continental shelf and its extension, with the creative interpretation of rules in the case of the scope of application of the equidistance method and the question regarding the provision set forth under 6.2 of the 1958 Convention had become a customary law generally applicable.

With regard to the first point, i.e., the juridical nature of the continental shelf, the Court kept the geomorphologic concept when settling —it would be the last time— that its extension would run up to the limit of its physical presence. “[…] for the reasons described […] the continental shelf of any State shall comprise the natural extension of its territory and shall not invade the natural extension of the territory of the other party”82.

At the time, the physical, restrictive, and inequitable interpretation of the continental shelf was ratified; this damaged the countries with short extension.

It is convenient to recall that the 200-mile claim of sovereignty and jurisdiction proclaimed in the Declaration of Santiago was precisely based, among other aspects, on the principle of compensation in favor of countries, which —like Peru— have a scarce or inexistent shelf. Alberto Ulloa voiced this concern in 1956 at the III Meeting of the Inter-American Council of Jurists: 81 Cf. CIJ, Arrêt de 20 février 1969, “Affaire du Plateau Continental de la Mer du Nord (République Fédérale D´Allemagne/ Danemark; République Fédérale D´Allemagne/Pays-Bas)”, Recueil des arrêts, avis consultatifs et ordonnances, 1969.

82 Cf. CIJ, Arrêt de 20 février 1969, “Affaire du Plateau Continental de la Mer du Nord (République Fédérale D´Allemagne/ Danemark; République Fédérale D´Allemagne/Pays-Bas)”, Recueil, p. 47 para. 85.

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I would like to say, above all because it is true and essential that the countries that drew up the Declaration of Santiago on the Maritime Zone and which continue to affirm it, in addition to all the other reasons with international legal nature that they may have had to proclaim it, made a compensation to and placed on an equal level (which is at the heart of any concept of international law) the countries that do not have a Continental Shelf with the other countries that do have a shelf83.

The countries of the South Pacific have extremely short and uneven shelves, almost inexistent in terms of average. Peru, for instance, according to Popovici counts with a continental shelf of only 120 km in Salaverry, 100 km in Chimbote, very narrow in Cabo Blanco, and Punta Falsa and practically inexistent in Punta de Pescadores84.

On this matter, the Judgment on the North Sea was subject to the provisions of the 1958 Geneva Convention. However, not many years later, the Court itself taking into account the progress of the negotiations in the III Law of the Sea Conference, changed this criterion without having a new conventional rule, in what has become for the maritime delimitation law a case law creating rules.

With regard to the second point, the extension of the continental shelf, the Court, as a byproduct of the previous one, ratified the idea that the extension of the shelf would reach out to the physical or geomorphic boundaries. With regard to the third question, the mandatory nature —or not— of the application of the equidistance line, the Court made even more significant statements. Although the 1958 Convention established that, in the absence of special circumstances and historic entitlements, the delimitation of the continental shelf had to be done through an equidistant line, the Court pointed out that the equidistance principle had not been enshrined in the sense that it should establish a priori a legal rule applicable to all. And, the Court added that this confirmation led the Court to conclude that the equidistance method was not mandatory to delimit the continental shelf85.

The Court set, in this way and at an early stage, the criterion that the equidistance line would not necessarily result in a fair situation and therefore, on a case by case basis, should be amended taking into account the presence of special circumstances. The Court determined that the use of the equidistance principle for the delimitation of the continental shelf had been established in an improvised and purely contingent manner. At the same time, the Court interpreted that 83 Ulloa Sotomayor, Alberto, speech delivered at the III Meeting of the Inter-American Council of Jurists, Mexico, 24 January 1956. In: Revista Peruana de Derecho Internacional, No. 49, 1956, p. 72.

84 Cf. Popovici, Zacarias and Chacon de Popovici, Gloria, “El Pacifico peruano”. In: Atlas histórico, geográfico y de paisajes peruanos, Lima, INP, 1970, p. 146.

85 Cf.. CIJ, “Mer du Nord”. In: Recueil, 1969, p. 45, para. 81.

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Article 6, paragraph 2 of the 1958 Geneva Convention on the Continental Shelf that prescribes the tracing of a median line or equidistance line, only refers to the cases in which the delimitation is carried out between two States and not among more than two States. The Court also established that the equidistance line method not necessarily resulted in fairness and that therefore, on a case by case basis, it had to be modified taking into account the presence of special circumstances.

The Court grounded this conclusion on a general principle, in virtue of which any maritime delimitation must arrive at equitable results. To assume, a priori, the equidistance method as a mandatory delimitation rule, in some cases it could collide with this principle, as well as with the other one that establishes that the delimitation shall be an agreement between the parties. As the Court put it, delimitation of the continental shelf shall be done on the basis of the principles of fairness: “(…) in other words, it is not a matter of simply enforcing fairness as an embodiment of abstract justice, but rather a matter of applying a legal rule that determines the application of fair principles.”86 The Judgment did not include a definition on the equitable principles, but it did conjecture them through the fair results that were the ultimate goal of any delimitation, that is to say, by making objective the derived fairness of the legal rule, not the infra legem fairness, which can only be determined through the valuation of the outcome that leads to determining the delimitation method.

With regard to the fourth problem, the determination on whether the rules set forth in Article 6.2 of the 1958 Convention was —or not— an enforceable customary law, the Court ruled that this was not the case and that such conclusion could not be drawn from the behavior of the countries. The Judgment was categorical in establishing that […] la Convention de Genève n’a ni consacré ni cristallisé une règle de droit coutumier préexistante ou en voie de formation selon laquelle la délimitation du plateau continental entre États limitrophes devrait s’opérer, sauf si les parties en décident autrement, sur la base d’un principe équidistance-circonstances spéciales.

Une règle a bien été établie par l´article 6 de la Convention, mais uniquement en tant que règle conventionnelle. Il reste à voir si elle a acquis depuis lors un fondement plus large car, comme règle conventionnelle, elle n’est pas opposable à la République fédérale, ainsi que la Cour l’a déjà constaté.87 [The Geneva Convention did not enshrine or crystallize a customary law rule preexisting or under development, in virtue of which the delimitation of the continental shelf among adjacent States had to be done, unless otherwise agreed, on the basis of 86 87

Ibid., p. 47 para. 85.

Ibid., p. 41, para. 69.

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the equidistance-special circumstance principle. Article 6 of the Convention has established one rule, but only as a conventional rule. We are yet to determine if the rule has acquired since then broader foundation, to the extent that a nonconventional rule is not enforceable upon the Federal Republic, as the Court has already confirmed.]

After its Judgment on the North Sea, the Court has set aside the physical and geomorphologic criterion, both to support the juridical nature of the continental shelf and to determine its extension.

The substantial change on this matter began with the Judgment on the continental shelf between Tunisia and Libya, 24 February 198288. Although the Court continued to place special importance to the physical reality of the continental shelf, the Court set aside the geomorphologic criterion that it had applied in its Judgment of 1969. The Court did not ground its Judgment on the conception in virtue of which the continental shelf corresponds to the natural extension of the coasts. This vision is almost territorial of the continental shelf began to change towards a maritime conception, and promoting the development of the works of the III Conference on the Law of the Sea which, by 1982, had already arrived at a consensus for all States —irrespective of the extension of its continental shelf as a physical mass— to have the right to a minimum shelf of 200 miles. This was obviously consistent with the recognition of sovereignty and jurisdiction up to 200 miles in the exclusive economic zone. It was illogical to recognize that 200 miles for the exclusive economic zone, i.e., the body of water, and not do so with the seabed in the case of such countries, like those of the South Pacific, whose continental shelf is very short.

The Judgment in the Tunisia vs. Libya case refers to the proposed Article 76.1 of the Convention, which establishes to constitutive elements of the right to the continental shelf. First, the principle of adjacency, which is the foundation of the juridical title over the continental shelf; and two, the distance criterion which defines its extension —irrespective of the natural projection of the coast up to a minimum distance of 200 miles.

The Court recalled that the coastal State is the titleholder of the exclusive rights on the submarine zones and that the geographic link between the coasts and the submarine zones facing it is the foundation of the legal title of the State on the continental shelf89. At the same time, in consideration of the undertakings of the parties to ground their claims on different perceptions on the natural extensions Cf. CIJ, Arrêt du 24 février 1982, “Affaire du Plateau Continental (Tunisie/Jamahiriya Arabe Libyenne)”, Recueil des arrêts, avis consultatifs et ordonnances, 1982.

89 Ibid., p. 61 para. 73.

88

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of the continental shelf according to its own interests, the Court determined that on this specific case it is not possible to apply this natural extension and that, alternatively, the solution should be sought among the equitable principles: La Libye estime que, dans la présente affaire, comme dans celles du Plateau continental de la mer du Nord, les principes équitables ne jouent aucun rôle quand il s’agit de déterminer les zones de plateau continental pertinentes en parlant de la notion juridique de prolongement naturel et que c’est seulement dans les zones marginales en litige entre des États que le litre peut se fonder sur prolongement naturel corrigé par les principes équitables. Chacune des Parties a aussi expliqué pour quelles raisons la délimitation qu’elle préconise est équitable, eu égard aux circonstances pertinentes, alors que celle de son adversaire ne le serait pas. La Cour, s’estimant tenue de statuer en l’espèce sur la base de principes équitables, doit commencer par rechercher ce que prescrivent ces principes, séparés de la notion de prolongement naturel, dont elle a dit qu’elle ne s’applique pas à la délimitation en cause. L’application de principes équitables doit aboutir à un résultat équitable. Cette façon de s’exprimer, bien que courante, n’est pas entièrement satisfaisante, puisque l’adjectif équitable qualifie à la fois le résultat à attendre et les moyens à employer pour y parvenir.90 [Libya believes that, in this subject matter, as well as on the Continental Shelf of the North Sea, the equitable principles do not fulfill any function when determining the pertinent continental shelf in terms of the juridical notion of the natural extension, and that only in the case of the marginal zones under dispute between the States is that the title can be founded on the natural extension corrected by the principles of equitableness. Each of the parties also explained why the delimitation that it preached is equitable, taking into consideration the corresponding circumstances, while that of his opponent would not be such. The Court, considering that in this specific case it must render a judgment on the basis of equitable principles, must begin by seeking what such principles determine in a separate way to the notion of natural extension, which it has said is not applicable to the delimitation in this case. The application of equitable principles shall arrive at an equitable outcome.

This way of expressing itself, though common, is not fully satisfactory since the adjective equitable qualifies both the outcome to be achieved and the means to be used to achieve it.]

In this way, the Court, without fully setting aside the physical conception of the continental shelf (declarative theory) advanced significantly towards an eminently juridical and maritime definition (constitutive theory).

The Court followed a similar approach in the Judgment on the Delimitation of the Maritime Boundary in the Gulf of Maine area (Canada / Unites States of America). Only in 1985, on the matter of the continental shelf between Libya and Malta, the Court abandoned definitively the geomorphic conception of the continental shelf and fully assumed the new definition of exclusive juridical 90

Ibid., p. 59.

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nature which had already been included in the 1982 Convention on the Sea. In its Judgment, of 03 June 1985, the Court decided: […] Chaque État côtier est titulaire de droits souverains sur le plateau continental situé devant ses cotes aux fins de son exploration et de l’exploitation de ses ressources naturelles (article 77 de la convention) jusqu’à une distance 200 milles marins des lignes de base —sous réserve bien entendu d’une délimitation avec les États voisins— quels que soient les accidents géologiques ou géophysiques des fonds marins dans la zone comprise entre le littoral et la limite des 200 milles.

L’adoption de ce critère de distance n’a cependant pas eu pour effet d’instaurer un principe de ‘proximité absolue’ ni de faire de la méthode de l’équidistance une règle générale ou une méthode obligatoire de délimitation ou encore une méthode à essayer en priorité dans chaque cas91. [Each coastal State is the holder of the rights of sovereignty over the continental shelf in front of its coasts for the purposes exploration and exploitation of its natural resources (Article 77 of the Convention), up to a distance of 200 nautical miles from the baseline —under reserve, of course, of a delimitation with the neighbor States— regardless of the geological or geophysical accidents of the marine deep waters in the area between the littoral and the 200-mile limit. The adoption of this distance criterion has not had, however, as a consequence of the adoption of the principle of “absolute proximity” or to turn the method of equidistance of a general rule or a mandatory method for the delimitation, or even a method to be used as a priority in each case.]

Hence, the Court expressly confirmed the changes to the customary law related to the continental shelf enshrined by Articles 76 and 83 of the Law of the Sea Convention, with regard to the concept of continental shelf to the extent that the natural extension of the land territory of the coastal State and the distance to the coast. The Court, thus, expressed a different and alternative criterion to the one it affirmed in the Judgment on the North Sea (1969).

The subsequent Judgments of the Court are strictly consistent with the juridical concept of the continental shelf, established in a definitive manner in the Judgment on the Libya vs. Malta case, setting aside the morphological concept and establishing the constitutive theory based on the distance criterion.

As has been pointed out, simultaneously to the jurisprudence of the Court, the Convention on the Sea adopted the juridical criterion of distance in order to define the juridical nature of the continental shelf and, consequently, introduced in its articles written laws on delimitation different from those of the 1958 Convention.

Cf. CIJ, Arrêt du 03 juin 1985, “Affaire du Plateau Continental (Malta/Libya)”, Recueil des arrêts, avis consultatifs et ordonnances, 1985, p. 56, para. 77.

91

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During the negotiations, two opposing thesis were discussed. Some States defended the thesis that the delimitation of the continental shelf had to be mandatorily through an equidistant line; while other States defended the equitable rule (fairness). This controversy —and the diversity of the positions proposed— impeded the text of the convention to be detailed and to include not only general criteria but also specific rules and methods on delimitation. At the end, the compromise was done with an ambiguous and very broad rule, which has left for the customary law to determine its scope and the establishment of specific principles, rules, and methods.

The rule on delimitation contained in the Convention is the same one for the delimitation of the continental shelf and for the exclusive economic zone. This rule is set forth in Articles 74 and 83: 1. The delimitation of the exclusive economic zone [continental shelf] between States with opposite or adjacent coasts shall be effected by agreement 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.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. 3. While an agreement has not been reached in accordance with the provisions in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the definite delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.92

This rule on delimitation clearly depicts its sense of agreement. This rule contains two basic elements that must be present when delimiting an area: the agreement between the parties and the purpose of arriving at an equitable solution. No reference is made to specific methods for delimitation, as is mentioned in Article 15 for the case of territorial sea. There is no guide on defining the elements and scope of the expression “equitable solution”.

At the same time, the Convention foresees that parties will encounter certain difficulty in concluding the agreements between them. For this reason, the Convention legitimizes and promotes among the parties “provisional 92

United Nations Law of the Sea Convention, 1982, Arts. 74 and 83.

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arrangements of a practical nature”, which in no case shall jeopardize or hamper the reaching of the final agreement. Arrangements of a practical nature shall be construed as the ones necessary to organize the fisheries, prevent accidents, and settle specific disputes among the parties.

The ambiguous or general nature of the written rule that can be summarized in the formula “agreement between the parties - equitable solution”, has had the different elements of this formula further specified, developed, and integrated through the case law of the Court and the opinio juris through the formula “agreement between the parties - equitable solution”, as a general customary law applicable to the delimitation of the continental shelf.

In addition to this evolution of the applicable law, the definition of the juridical nature of the continental shelf has also evolved, as it has been seen. This evolution has allowed moving from the fixing of boundaries based on the morphologic structure to a new definition in which the juridical nature takes out the morphologic structure to be based exclusively on the juridical category of distance. There has also been a similar development in the role played by the equidistance method in the delimitation process. Some States interpreted that the application of the equidistance method to the delimitation of the continental shelf had become a biding rule in customary law.

However, the Court has determined that there is no method for delimitation that can be claimed as a delimitation rule. This includes equidistance. This one should be and can be used as a first approach, but must necessarily be ratified or amended in the light of special circumstances with the ultimate goal of achieving equity in the results.

To sum up, the delimitation of the continental shelf, in accordance with the customary law in force, which comprises the conventional provisions of the 1982 Convention on the Law of the Sea, is governed by the following rules and criteria: a) Delimitation shall be carried out following equitable principles, taking into account pertinent circumstances, if any, so that an equitable outcome is achieved. b) In the event that the continental shelf does not extend beyond the 200mile coast, no delimitation criteria in the continental shelf zones shall be derived from the principle of the natural extension in a physical sense. All States exercise sovereignty and jurisdiction up to 200 miles, irrespective of the extension of its continental shelf, based on the adjacency criterion measured by distance.

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b) Delimitation of the Exclusive Economic Zone

The exclusive economic zone, as a new space recognized by the 1982 Convention on the Law of the Sea, has been subject to the case law of the Court in few and recent cases, unlike the delimitation of the continental shelf, which has taken up much of the work of the Court and Arbitration Tribunals93.

The delimitation of the exclusive economic zone is governed by the same rules and criteria as the continental shelf, in both conventional and customary law.

In accordance with Article 74 of the 1982 Convention of the Law of the Sea, delimitation is carried out by agreement between the parties, which shall establish the application of the rules in Article 38 of the Statute of the International Court of Justice94 and necessarily arrive at an equitable solution95.

The Judgment from the Court Chamber on Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) of 12 October 1984 is especially important for the delimitation of the exclusive economic zone.

It was the first time in the history of the Court’s activities that it was asked to consider and settle a case that included two special characteristics. First, unlike earlier cases in which the Court was asked to render a decision on delimitation rules and criteria to be applied by the parties to settle their disputes, in the Gulf of Maine case, both the United States of America and Canada asked the Court not to only determine the applicable rules, criteria, and methods, but to determine the tracing of the line corresponding to the maritime boundary. Second, this was the first case in which the Court had to render a decision not only and exclusively on the territorial sea or continental shelf but also on a vast maritime space which comprised all zones recognized by international law as being under the jurisdiction of States, i.e., territorial sea, contiguous zone, continental shelf, and exclusive economic zone. Third, the parties asked the Court to settle the dispute through a single delimitation line for the three ocean spaces, each with a different juridical nature.

The United States and Canada agreed on the terms of reference of the jurisdictional action of the Court through a special agreement signed on 29 Cf. Pharand, Donald et Leanza, Umberto (Editores), Le Plateau Continentale et la Zone Economique Exclusive: Délimitation et régime juridique, Martinus Nijhoff Publishers, 1993.

94 Article 38 of the Statute of the International Court of Justice points out that upon settling disputes, the Court shall apply: “a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”

95 Cf. Monroy Cabra, Marco Gerardo, Derecho Internacional Público, Bogota, 1995, Temis, p. 233.

93

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March 1979, whose Article 2 specified the purpose of the decision the two were asking the Court for: the tracing of a single maritime boundary that would divide the continental shelf and the fishing zones of Canada and the United States96.

The possibility of establishing a single line for the different jurisdictions was admitted by the Chamber taking into account that international law did not have any rules prohibiting or impeding it. In addition, the Chamber confirmed that, from the view point of the characteristics of the coasts and other geographical and technical factors, there was no material or juridical impediment, in this case, to trace a single line to delimit the territorial sea, continental shelf, and exclusive economic zone.

Through this Judgment, the Chamber made a reasoned reflection of the principles and criteria of international law governing the maritime delimitation and methods put into practice both in the case of the continental shelf and the exclusive economic zone. As a result of this analysis, the Chamber determined that there are two mandatory rules that serve as an essential foundation of general international law applicable to any juridical delimitation:97 The Chamber would like to conclude this redefinition of the rules of international law that govern the subject matter which is at the heart of the United StatesCanada dispute, by offering a redefinition that is more complex, and to its opinion, more exact of the fundamental norm under discussion. With this purpose, the Chamber wished to gain its inspiration from, among others, in the definition of true juridical rules on the delimitation of adjacent continental shelves, i.e., binding rules for the States in any delimitation ordered by the Tribunal in its Judgment of 1969 on the Continental Shelf of the North Sea (ICJ. Recueil 1969, p. 46-47, paragraph 85). What general international law mandates for maritime delimitation between adjacent States could be defined in the following terms: a) No maritime delimitation between States with adjacent coasts or opposite each other can be made unilaterally by any of the States. This delimitation shall be sought and achieved by agreement, following negotiation carried out in a good faith and with the true intention of achieving a positive result. In the event that such agreement was not feasible, the delimitation shall be determined by resorting to a third instance with sufficient competence to achieve such delimitation. b) Both in the first and second cases, delimitation shall be carried out in application of equitable criteria and using practical methods suitable to ensure an equitable outcome, taking into account the geographic shape of the region and other relevant circumstances98.

Cf. CIJ Arrêt du 12 octobre 1984, Rendu par la chambre constituée par ordonnance de la Cour du 20 janvier 1982, “ Affaire de la délimitation de la frontière maritime dans la région du Golfe du Maine, (Canada / Etats Unies d´Amérique) ”, Recueil des Arrêts, avis Consultatifs et Ordonnances, 1984, p. 253.

97 Ibid., pp. 299-300.

98 Cf. Fernandez Tomas, Antonio, Derecho Internacional Público. Casos y materiales, Madrid, Tirant lo Blanch, 1998, pp. 383-384.

96

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The Chamber pointed out that the delimitation through a single line, i.e., a valid delimitation for the continental shelf and the subjacent water column could only be achieved by applying a criterion or combination of criteria that would not favor one of the spaces to be delimited in prejudice of the other, and that, at the same time, would allow to divide each of these spaces equitably.

The Chamber, in the specific Judgment on this case, decided to apply the equitable principle which mandates that the overlapping area of maritime and sub-marine zones of contesting States must be divided into equal parts, since the Chamber confirmed that there was no need to introduce corrective elements in light of special circumstances.

Once the applicable equitable principle has been established, the Chamber went on to analyze the most appropriate, suitable, and functional method in order to carry out the delimitation, in such a way that an equitable outcome would be achieved. Recalling the Judgment on the North Sea Continental Shelf, the Chamber insisted that regarding the practical methods for delimitation there was no single and binding rule in the general international law.

The Chamber disregarded the methods proposed by both Canada and the United States of America (mandatory equidistance line and line following the coastal shape, respectively). According to the Chamber, none of these methods would yield an equitable outcome, taking into account the geographical reality.

The Judgment decided to apply a geometric method, respecting the geography and dividing the disputed area into equal parts.

The Judgment of the Gulf of Maine contributed to further specify the rule in the general law applicable to the delimitation of the continental shelf and the exclusive economic zone: agreement between the parties-equitable principlesspecial circumstances. At the same time, the Chamber recognized that it was pertinent and created the precedent of tracing a single line for all maritime spaces under the States’ sovereignty and jurisdiction. Finally, the Chamber determined the procedural phases to be followed in settling any dispute on maritime delimitation: 1. Establish the existence or not of a particular law between the parties; and, if there is such law, determine the scope of its application.

2. In the absence of or existence of a partial lex specialis, determine the most appropriate equitable principles to settle the case, ensuring equitable results.

3. Identify the practical and applicable method or methods for the delimitation, taking into account equitable principle or principles selected and 65

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the establishment of a provisional delimitation using a practical method or methods chosen for that purpose.

4. Establish the existence or inexistence of special circumstances, and if there are any, apply to pertinent corrections to the tracing of the provisional line using other methods or a combination of methods.

5. Ratification or rectification of the provisional delimitation line by confirming that the results have achieved, or not, equitable results having taken into account the special circumstances.

With the Judgment on the Gulf of Maine, the entry into force of the 1982 Law of the Sea Convention, the practice of the States and the recognition of new spaces subject to sovereignty and jurisdiction by the general customary international law, the number of claims for the tracing of a single line in heterogeneous spaces is greater. In any event, this trend does not exclude the polyvalent delimitations, based on the juridical nature of each maritime space and the geographic reality.

In short, the Court, through its jurisprudence, has confirmed and developed the conventional provisions on the delimitation of the continental shelf and the exclusive economic zone; thereby closing a loophole generated by the general nature of the written laws. The Court has enshrined, in this sense, the rule applicable to the delimitation of the continental shelf and the exclusive economic zone, which is summarized in the formula: “equitable principlesspecial circumstances�.

3. Equitable Principles, Fundamental Rule for Maritime Delimitation As Louis Henkin has pointed out, equitable principles and solutions have become key concepts in the law governing the delimitation of maritime frontiers between States99. In the Judgments on the North Sea Continental Shelf 1969100; Tunisia vs. Libya, 1982101; the Gulf of Maine, 1984102; Libya vs. Malt, 1985103; Greenland vs. Jan Mayen, 1993104; Nigeria vs. Cameroon, 1998105; and Qatar vs.

Bahrain, 2001106, the Court has insisted in a coherent and persistent manner that Cf. AA.VV., International Law Cases and Materials (American Casebook Series), 1993, West Publishing Company, pp. 117-118.

100 ICJ, Recueil, 1969.

101 ICJ, Recueil, 1982.

102 ICJ, Recueil, 1984.

103 ICJ, Recueil, 1985.

104 ICJ, Recueil, 1993.

105 ICJ, Recueil, 1998.

106 ICJ, Recueil, 2001.

99

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the applicable customary law for maritime delimitation of the continental shelf and the exclusive economic zone is the one which determines the agreement between the parties, applying equitable principles and taking into account all existing special circumstances, that there may be.

The equitable principles thus emerge as the constitutive elements of the “equitable solution”. However, the Court, until 1984, did not give a definition of equitable principles. It was not until the Judgment on the Gulf of Maine that the Chamber of the Court, charged with this case, for the first tome fully developed the concept and the scope of application of the equitable principles107.

In this Judgment, the equitable principles were consolidated through the case law of the Court as the essential factor in any maritime delimitation process and as unifying factor of conventional rules “equidistance-special circumstance” and “equity-special circumstances”. The equitable principles, applied to each case, considering the geographic reality and taking into account special circumstances, became an abstract concept and practical requirement, whose application should lead to a delimitation that achieves equitable solutions.

This view minimizes the debate on the methods to be used in delimitation processes since the methods or criteria to be used shall be the ones that allow to make real the equitable principles, that do not collide with them, and that achieve equitable solutions. Equidistance stops being an end in itself and becomes subject to this objective, despite the geometric method being the one which a priori would give an equitable solution. And if its practical and provisional application does not entail an equitable solution, it should be replaced or changed by other methods so as to achieve equitable solutions.

The Court has been very prudent in not defining the equitable principles and not establishing a precise list thereof. A matter that the Court has clarified from the beginning is the difference between equitable principles and equity ex aequo et bono.

Unlike this one, which entails the judge’s freedom to arrive at equitable solutions via compensation, equitable principles are always linked to the legal rule. As GomezRobledo has well put it, “the concept that can be drawn from the international jurisprudence as of 1969, is that the equitable solution that must be achieved through a maritime delimitation must be consistence with the existing international law: this excludes the possibility of speaking of an ex aequo et bono solution”108. This criterion 107 Cf. Bedjaoui, Mohammed, “ L´énigme des “principes équitables” dans le droit des délimitations maritimes ”. In: Revista Española de Derecho Internacional, No. 42, 1990, pp. 367-388 ; cf. also. Jennings, Robert Yewdall, “Equity and Equitable Principles”. In: Annuaire suisse de droit international, N° 42, 1986, pp. 27-38.

108 Gómez-Robledo Verduzco, Alonso, Jurisprudencia internacional en materia de delimitación marítima, México, Instituto de investigación jurídica de la UNAM, 1989, p. 23.

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is shared by Dupuy, who points out that it is not a matter of turning to equity as a substitute for the law, i.e., the ex aequo et bono equity, nor of making it simply as a representation of abstract justice109.

It is a matter of deriving equity from the law and not adding equity to the law.

Hence, the Judgment on the continental shelf of the North Sea, the Court has pointed out that the juridical grounds for the rules of equity rests on the fact that regardless of the legal reasoning of the judge, its decisions should be, by definition, fair and therefore equitable. However, when we say that the judge administers justice or exercises the law, we mean that the judge must ground his decisions on the rules and not going beyond them. In this context, it is precisely the juridical rule which claims the application of equitable principles. It is not then a matter of a decision ex aequo et bono, in the sense of the provision set forth in Article 38, paragraph 2 of the Statute of the Court110.

Equitable principles are substantive statements or special criteria that drive maritime delimitation and allow for a more suitable interpretation of the conventional rules. The Chamber of the Court has pointed out that the equitable principles are not in themselves binding juridical rules for all cases of maritime delimitation, irrespective of the nature of each of the disputes. They are instead: “(…) des critères ‘équitables’, voire ‘raisonnables’, et que ce que le droit international demande c’est de s’inspirer, dans chaque cas, du critère ou de l’équilibre entre critères différents apparaissant comme celui qui convient le mieux à la situation concrète”111. ["equitable" criteria, actually "reasonable", what international law claims is to inspire itself, on a case by case basis, with the criterion or balance between different criterion which appears as the best one applicable to a given situation. ] At a doctrinal level, there are several opinions on the juridical nature of the equitable principles. The question is to explain whether or not they are general principles, rules or criteria. Beyond the usefulness of this discussion, there is consensus in considering that at least the equitable principles are part of a rule of customary law.

Equitable principles have guided the Judgments of the International Court of Justice always under the approach that they should not be enforced in an abstract or aprioristic manner, but in light of each specific case and their functionality to arrive at equitable delimitations. The equitable nature of each principle does not stem from its validity per se, but from its practical application capacity in each Dupuy, Pierre-Marie, Droit international public, Paris, 2002, Dalloz, p.712 Cf. ICJ, op. cit. Supra Note 69, p. 48, para. 88.

111 Cf. ICJ, “Golfe du Maine”. In : Recueil, 1984, p. 313, para. 158.

109 110

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specific case in view of achieving an equitable solution. This does not imply that for some disputes, an equitable principle may achieve fairness while in other cases such principle may not. In this hypothesis, it is necessary to choose the equitable principle or principles applicable to each case or situation, based on the aptitude or functionality to produce an equitable solution.

Although the Court’s jurisprudence has not determined a univocal definition of the equitable principles or a strict list of them, it has made a number of listings with sound and strict guiding criteria rather than with a dogmatic or limitative will.

In the Judgment on the Gulf of Maine, the Court, upon pointing out that the equitable principles have developed with arguments submitted by the parties in the processes of delimitation of the continental shelf and in its own case law, lists, without the intention of making a complete list, the following list112: 1. “The land governs the sea”, or the adjacency principle, whose description establishes that the legal title of the coastal State over the adjacent sea stems from the State’s sovereignty over its territory.

2. Division into equal parts of the overlapping areas in the maritime and submaritime zones corresponding to the extension of each State where there are no special circumstance or where no correction factors are required.

3. Where possible, the non-invasion of the maritime projection of one State’s coast over extensions which are too close from other State’s coasts.

4. Avoid the effect of amputation of the maritime projection of the coast or of part of the coast of one of the States.

5. The convenience of determining in certain situations the appropriate consequences derived from any potential unequal extension of the coasts of two States in the same delimitation area113.

These principles, called criteria in the Judgment on the Gulf of Maine, shall be deemed concurrent and supplementary to the ones expressed by the Court in the ruling on the Libya vs. Malt (1985) case114: 1. Respect and contemplation of all relevant or special circumstances.

2. Equity shall not mean nor be linked to mean necessarily equality.

Ibid., p. 312, para. 157.

Ibid., p. 312, para. 157.

114 Cf. CIJ, Arrêt du 03 juin 1985, “Affaire du Plateau Continental (Malta/Libye)”, Recueil, 1985.

112 113

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3. Inadmissibility of distributive justice.

4. The delimitation process shall not be driven towards nor redo the geography nor rectify necessarily the unevenness of nature, but instead should advocate for equitable solutions.

5. Non invasion of maritime expansion of a State over that of another State.

Without going into the doctrinal debate on the juridical nature (principles, rules, or criteria), the equitable principles constitute the central element of any substantive rule on maritime delimitation, the one pointed out in the wording of the Judgment on the Libya vs. Malt case which states that “(…) delimitation shall be carried out in accordance with equitable principles, taking into account all pertinent circumstances in such a way as to arrive at an equitable solution”115.

Irrespective of whether the equitable factor is considered as the dominant or exclusive function of the delimitation or a supplementary or corrective factor for a likely unevenness resulting from the tracing of the equidistance line116, the truth is that equitable principles make possible the gradual unification, but consistent of the rules of conventional and customary law, applicable to each one of the maritime spaces. This happens based on the understanding that given each case of maritime delimitation is a reality in itself and irreplaceable, only the flexible and case by case application of the equitable principles will allow, in practice, to use methods that ensure equitable solutions, which is the essential teleological rule of international law on maritime delimitation.

4. Methods to Apply Equitable Principles on Maritime Delimitation The maritime delimitation methods are technical procedures used to divide the overlapping zone or area of two maritime areas of opposing or adjacent States117.

There is no definitive list of methods to be used, yet the practice of the States, the case law of the Court and the Arbitration Tribunals, and the development of applicable technical elements that allow establishing a list of methods which can be used.

Between 1950 and 1956, the International Law Commission of the United Nations studied this topic and issued recommendations. At the meeting, the Commission worked on the basic context of territorial sea delimitation as the only sovereign space recognized by the international law at the time. Nevertheless, Ibid., p. 56.

Cf. Lucchini, Laurent and Voelckel, Michael, op. cit., pp. 230-231.

117 Laurent Lucchini & Michel Voelckel define the method for delimitation as “any procedure whose use will allow fixing a clear separation line”, cf. ibid.

115 116

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the Commission also anticipated discussions on the role of the continental shelf, which was already subject to unilateral claims of sovereignty. However, its point of reference was the territorial sea. In this context, the Commission examined several methods and forms of delimitation and sent this topic for discussion by a group of experts, who submitted their recommendations in 1953. The group identified four basic methods: equidistance, extension of the line dividing adjacent territorial waters, the tracing of a perpendicular line to the coast from the point where the land frontier reaches the coast, and a perpendicular line following the general sense of the coast. In its final report, experts pointed out that the lateral boundary between the corresponding seas should be traced preferably following the equidistance method, if it had not been fixed otherwise.

Some authors and States interpreted that this recommendation established that the only method to be used was the equidistance method118, thereby attributing a mandatory nature to this rule of customary international law and generally applicable, even in the new spaces which the law of the sea had included in the sovereignty of States. The Court, however, has denied this interpretation when it states that the works of the International Law Commission have shown that “it is clear that at no time has the notion of equidistance been considered to be related inherently to the doctrine of the continental shelf �119.

Also, the Court has expressed its viewpoint in the sense that on this matter, at all times, the Commission has behaved following two convictions. First, that it is very unlikely that a single method of delimitation would be capable of satisfying all of the circumstances arising from the delimitation when it has to be established through an agreement or arbitration; and, second, that any delimitation shall be done following equitable principles120. For the Court, there is no single or binding method for their application. Equidistance, which is the rule of thumb for the delimitation of territorial seas, does not have that character of being single or binding even in this case, since in the absence of special circumstances, it is possible to choose any method or combination of methods if this is necessary to guarantee equity in the results.

Equidistance is established in the written law and in the 1958 and 1982 Conventions as the method to be used ab initio in order to delimit the territorial sea, taking into account special circumstances that could have an incidence on the delimitation or impose a change of method. In the case of the continental 118 Equidistance can be defined as the geometric method whose application allows every point along the line of delimitation to be equidistant from the points closest to the baselines from which the territorial sea extension of each party is measured.

119 Cf. ICJ, op. cit. Supra, Note 69, pp. 35, 51.

120 Ibid., p. 36, para. 55.

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shelf and the exclusive economic zone, it has no regulatory preeminence regarding other methods. However, of all the existing methods, equidistance is the one which a priori can guarantee an equitable solution, in the absence of special circumstances. Customary international law and the jurisprudence of the Court have enshrined, in this sense, a perception of equidistance as a criterion or method to be used preferably, but not obligatory, when in itself and in practical terms leads to an equitable solution; but which, otherwise —under special circumstances—, can be set aside, allowing for another type of tracing of the maritime boundary or a combination of lines drawn from other methods.

The equidistant line in the case of territorial sea, given the combination of its geometrical nature, geographical reality, and the short distance of the zone, normally results in an equitable solution. Due to the scarce extension of the territorial sea, in most of the cases the equidistance results in an equitable solution. But this is different when the boundary of the continental shelf, and particularly that of the exclusive economic zone, has to be drawn. Since these are big maritime spaces that can comprise thousands of miles, with hydro-biological and mining resources to be divided, the equidistance line can result in inequitable solutions. For this reason, the Court believed in the interpretation of Article 6 of the Convention on the Continental Shelf of 1958, which establishes the tracing of the median line, does not have the rank of general rule of customary law.

In this same sense, the Chamber of the Court, in the Judgment on the Gulf of Maine, pointed out that it did not find any grounds to legitimate the intention to turn the content of the provisions set forth in Article 6 of the 1958 Convention into a general rule applicable to any maritime delimitation. The Court also recalled that the provisions set forth in Article 6 are not binding to the States that are not parties to the Convention and even in such cases where it is binding; the delimitation method is not of binding application in the case where there are special circumstances121.

This reasoning has led the Court to have a sound and definitive opinion in the sense that the equidistance method has no Statute on a binding single method.

Certainly, it benefits from the assumption of equity ab initio in its favor, but it is not a single rule, nor binding. It is always dependant on the fact that its application, in practice should achieve equitable results122.

In short, the method of equidistance, even using the preliminary tracing, subject to the equitable corrections based on the existence of special circumstances, is Cf. ICJ Recueil, 1988.

Cf. ICJ Arrêt du 03 trois 1985, “Affaire du Plateau Continental (Malt/Libye)”. Recueil des Arrêts, Avis Consultatifs et Ordonnances, 1985 p. 37.

121 122

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not a binding rule in international law. The Court in several opportunities has been very clear on this matter. However, at the same time, from the existing methods, it is the most appropriate to be used even provisionally, in order to achieve equitable solutions, with the pertinent corrections based on the existence of special circumstances.

Moreover, within the convergence process, which is characterized by the present development of the right on maritime delimitation, the equidistance method is included into dispute solutions on continental shelf or the exclusive economic zone, at least at the beginning of the delimitation process, as a preliminary step to be —or not— confirmed, in light of special circumstances. […] in light of the most recent jurisprudence, the rule of equidistance-special circumstances is no longer viewed as a specific rule on territorial sea, but has become part of the common juridical system of the continental shelf and the exclusive economic zone, in which the role of equidistance has evolved to the point that it has a privileged duty as the starting point of the provisional delimitation line between two opposing coasts, which reminds us of the key role that heretofore it had in the delimitation of the territorial sea123.

From a procedural perspective, in this way, the principle of equidistance is a factor to be taken into account in any maritime delimitation process, normally as the method to be applied ab initio in a provisional manner. If after establishing, with this nature, the tracing of the maritime frontier it is confirmed that an equitable solution is achieved, the line is confirmed. However, conversely, if there are special circumstances, this confirms that the tracing results in nonequitable solutions for one of the parties, then there is a rectification, which implies using other methods of delimitation or an unlimited combination of such methods, always in view of confirming at the end of the process that an equitable solution has been achieved.

According to Michel Voelckel, the equidistance method is the most suitable because it is “the only one which allows to perform direct bilateral delimitations, or provided that first there is a general distribution and then there is a correction or restriction of the area under delimitation”124, and through this way, encourages an equitable solution, irrespective of the fact that in certain cases it application would, conversely, be inequitable; this would be the case in concaved-shape coasts.

Ruiloba García, Eloy, op. cit., p. 275.

Voelckel, Michel, “Aperçu de quelques problèmes techniques concernant la délimitation des frontières maritimes”. In : Annuaire Français de Droit International, vol. XXV, 1979, pp. 693-711. Quoted in : Gómez-Robledo Verduzco, Alonso, op. cit., p. 22.

123 124

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Hence, the importance of equidistance line on the maritime delimitation law.

Gomez-Robledo has provided details on the technical process of tracing the equidistant line, including the corresponding graphs, which we have reproduced given their illustrative nature125.

Land Area Maritime Zone

Starting point of maritime border

Delimitation between two adjacent States Source: KAPOOR D. C. Y KERR. ADAM J.

The graph […] shows two States with adjacent coasts. The geometric principle and operation is the same as the one used when there are State’s with opposing coasts.

From point Z, where the land frontier reaches the coast of the State, the equidistance line starts as a perpendicular line to the coastline (or towards the tangent, if the coastline is particularly curved in point Z).

The initial perpendicular line continuous towards part of the baseline of any State, and it is an equidistant line. In this graph, point E in the relevant segment “a”: where Za=Ea. 125

Gómez-Robledo Verduzco, Alonso, op. cit.

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The now continuous line is a perpendicular bisecting line to the line joining EZ. In this way, the continuous line through relevant points b, c, d, e‌: all the points, which are equidistant points closest to the corresponding baselines of the two States126.

5. Special Circumstances and the Search for Equitable Solutions Special circumstances constitutes several elements or realities, especially of geographical or geomorphologic nature, which have an incidence on delimitation given their impact, conditioning or influence on the equitable division of the overlapping maritime areas.

In principle, a geometric-based delimitation line shall be traced in a transitory or provisional manner, usually the equidistance line, which shall be later be confirmed with the existence of special circumstances and, if they have an incidence on the equitable solution, the provisional line shall be replaced by another line or shall be combined with another method in order to ensure the purpose of any delimitation process; i.e., equitable results.

Hence, taking in account special circumstances is a dynamic factor aimed at achieving equitable results. An equidistant line without the existence of special circumstance can guarantee the equitable solutions, but with the presence thereof (such as the existence of islands, concavity-shaped coasts or their own configuration), the result which determines an equidistant line can be deeply inequitable. This explains the relevance of taking into account special circumstances. Given their incidence on the results of the delimitation process, the tracing of a provisional line to take them into account and ensure equitable solutions.

The Court, in a Judgment on the North Sea, defined the special circumstances as “the general configuration of the coasts of the parties and the presence of any special or unusual characteristic.�127 This broad definition of special circumstances makes them non-definitive, thus opening a broad list of flexible possibilities. In this sense, the Court, the arbitration tribunals, or the parties can consider as a non-usual, special or pertinent fact, any consideration or reality which negatively impacts equity in the results for any of the parties and therefore makes necessary the establishment of corrections in view of ensuring an equitable result.

In the case on the continental shelf between Libya and Tunisia, the parties argued, in support of their positions, the presence of several pertinent circumstances.

126 127

Ibid.

Cf. ICJ, Recueil, 1969, p. 54.

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Tunisia, in its final conclusions, pointed out special circumstances that the Court should take into account: the presence of islands, islets, and other coastal formations of this country, bathymetric curves that reflect its physical and geological structure, the impact that such mutilation could have on its maritime area, the way angles are shaped in the Tunisia-Libya littoral combined with the situation of the land frontier point on the coast, the ruggedness of the Tunisian coast compared to the general regularity of the Libyan coasts in the area to be delimited, the situation of Tunisia compared to the States which have bigger coasts than Tunisia and the impact of any present or future delimitation with such States, and the existence of historic rights, particularly those with an economic nature128.

On the other hand, Libya only evoked two types of special circumstances: geological structures of the continental shelf and its relation with the adjacent land mass; and the geographic configuration of the coast. The Court in its Judgment accepted some of these special circumstances and determined that others had no incidence on the equitable result of the delimitation129.

In this same Judgment, the Court pointed out: “Comme il n’y a jamais eu d’accord entre la Tunisie et la Libye sur la délimitation des eaux territoriales, des zones contigües, des zones économiques exclusives et du plateau continental, une frontière terrestre incontestée par les parties et résultant d’une convention est une circonstance de la plus haute pertinence”130. The existence of a treaty on land delimitation was considered as a pertinent circumstance. Moreover, taking into account that according to the Convention of 19 March 1910 the point of arrival or terminus of the land boundary to the sea is Ras Adjdir, the Court determined that this point should necessarily be taken into account in order to trace the maritime frontier, in the same way as it had been used by the parties for several unilateral juridical acts on maritime delimitation. The Court considered the final point of the land frontier as another pertinent circumstance to be taken into account in the delimitation and therefore the Judgment131.

The tracing of the maritime boundary between adjacent States, i.e., with lateral boundaries, as is the case of Peru and Chile, as a rule of thumb this is always done through the terminus of the land boundary; in other words, the point where it reaches the sea. If the tracing of the frontier is for all maritime spaces, i.e. the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf; this rule has no exception. Obviously, if the frontier to Cf. ICJ, Recueil, 1984.

Cf. ibid.

130 Cf. ICJ, Recueil, 1984, p.65, para. 82.

131 Ibid.

128 129

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be traced were only a segment of the sovereignty and jurisdiction spaces, for example, the exclusive economic zone or the continental shelf, the end of the dividing line may not coincide with the terminus of the land frontier.

Ruiloba Garcia summarizes in an explicative manner the relevance of the land frontier position in the lateral delimitation of the States: In the event of adjacent coasts, the point in which the land frontier between neighboring States reaches the sea shall be the starting point from which the successive maritime spaces shall be counted. Consequently, if the two States decide to delimit all their spaces at the same time, the end of the lateral maritime delimitation line shall match such end point of the land frontier. Well then, it is possible that the two adjacent States proceed to delimit only one of their maritime spaces, as for example the continental shelf or the exclusive economic zone, in which case, the end of the dividing line will not coincide with the end point of the land frontier, but instead will match the outermost limit of the territorial sea, located in the sea at a certain distance from the coast, normally, equivalent to the breadth of the territorial sea that these two States have already established132.

Among the historic pertinent circumstances, we can mention the behavior of the parties, historic rights, economic interests, and issues related to the security and defense of the parties, as well as the existence of certain instruments or juridical agreements signed between them which shall impact the delimitation, such as oil concessions or fishery conventions.

The behavior of the parties can be decisive in determining whether or not a delimitation agreement could have been set between, even if implicit. However, the Court, through its jurisprudence, has shown to be very rigorous in the existence of the continuity requirement and the systematic character of all own acts and the presence of a subjective factor, i.e., the need for the behavior under consideration to be duly grounded in the conviction that it is acting in light of the existence of a juridical obligation.

Special circumstances, their valuation and incidence on the boundary vary according to each case. A special geographic circumstance, such as the configuration of the coasts, can, in a dispute, be relevant for the delimitation and determination of correction on the provisional line in order to achieve equity in the results, but in other cases, may be irrelevant.

In the matter of the Malt vs. Libya on the continental shelf, the Court, in the resolution part of the Judgment, explained that an initial median line had been traced, and that it should be subject to rectification in light of identified pertinent 132

Ruiloba Garcia, Eloy, op. cit., p. 395.

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circumstances, “especially the considerable disparity between the lengths of the coasts of the parties and the distance between those coasts, the position of the base points which determine the equidistance line”133.

As has been pointed out by Gomez-Robledo, […] taking into account previous circumstances, and fixing as outer limit of any tracing of the line towards the north the theoretical median line, in the hypothesis of a delimitation between Italy and Libya founded upon equidistance within the area the Judgment refers to would not have any effect on Malt, the Court had the chance to indicate a method, allowing the parties to determine the position of a line in such a way that such line would ensure an equitable solution between them. According to the Court, such line was consistent with the requirements of the proportionality criterion, and, more generally, such line took into account in a more equitable manner all pertinent circumstances134.

The pertinent circumstances cannot be listed definitively nor can there be a definitive or strict classification. This is due to the fact that every specific situation can result in the valuation of a geographic fact or a situation which due to its incidence on the equity required of the delimitation solution, can be considered a pertinent circumstance to be taken into account.

As a way of facilitating the analysis, in strict hermeneutic terms, it is possible to test some of the classifications taking into account their nature, and based on the existing jurisprudence. A fairly sensible and practical systematization is the one suggested by Ruiloba Garcia, who classifies them into geographical circumstances, geological and geomorphologic circumstances, economic circumstances, and historical or political circumstances.

However, as the author himself has pinpointed, […] [this] classification is not the only possible one, nor is it more thorough or omni-comprehensive of all circumstances that can influence the delimitation of maritime spaces in a given case. The diversity of factors susceptible of being considered as a relevant circumstance is not a final or definitive list.

Hence, any classification is only indicative, a guide of the different special circumstances135.

What is important is the functionality of the corresponding circumstances in the entire delimitation process as elements that contribute to the achievement of equity in the results. A geographical, geomorphologic, economic, historical circumstance, or any circumstance of any other nature, provided that it does not affect through Gomez-Robledo Verduzco, Alonso, op. cit., p. 185.

Ibid.

135 Ruiloba Garcia, Eloy, op. cit., p. 361.

133 134

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its existence achieving equity in the results, is irrelevant and shall not be taken into account. However, if on the contrary, it confirms its incidence on the delimitation process, in such terms as to favor or damage one of the parties through the valuation of equity in the results, it shall then be considered relevant and shall be taken into account and shall cause the necessary corrections to the tracing of the delimitation line or the selection of the methods in order to implement it, in such a way as to guarantee that equitable solutions to the parties shall be achieved.

6. Convergence and Unity of Conventional Law of Maritime Delimitation and Customary Law Towards a Single Goal: Delimit Producing Equity in the Results At the present time, international law of maritime delimitation has incorporated the scope of conventional rules with those of customary law, thereby building a single set of principles and rules applicable to the delimitation processes and jurisdictional international disputes on this matter. However, we must not overlook at the fact that this law is still in a formation phase and that the every case is unique, hence it is necessary to adapt the rules within the scope of existing rules and principles.

The International Court of Justice has pointed out that it is not possible to find in positive international law a detailed set of rules. We have noticed that they are very limited and general, both the ones in the 1982 Convention on the Law of the Sea and the 1958 Geneva Conventions. Customary Law has contributed to maritime delimitation with clarity, scope, preciseness, and detail, without, however, arriving at rules that are too stringent. The general international law of maritime delimitation is the expression of the agreement and progressive unification of conventional rules and customary law. The Court and the Arbitration Tribunals’ jurisprudence are the main sources contributing to the formation of an opinio juris.

The Judgment on the delimitation of the maritime boundary in the Gulf of Maine region has summarized in a fairly precise manner the basic criteria guiding maritime delimitation between neighboring States136: 1. No maritime delimitation between States that have adjacent or opposing coasts can be done unilaterally by one of the States. Delimitation shall be brought about and set through an agreement resulting from a negotiation guided by the principle of good faith and with the true intention of arriving at a positive solution. In case, however, that an agreement of this sort cannot be 136

Cf. ICJ, Recueil, 1984, pp. 299-300.

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concluded or achieved, maritime delimitation shall be established by resorting to a third instance with the competences necessary to settle the dispute.

2. Delimitation shall be achieved through the application of equitable principles and the use of practical methods capable of ensuring an equitable result, taking into account the geographic shape of the area and other special circumstances.

In short, the essential and fundamental procedural rule of customary international law on maritime delimitation is the one which states that delimitation shall be achieved through an agreement between the parties or by decision of a jurisdictional or arbitral body, so that the decision adopted is based on the application of equitable principles and is carried out using practical methods ensuring that the solution will achieve equity in the results.

Nevertheless, specific rules or criteria that allow to apply one equitable principle or another or the tracing of the delimitation line cannot be drawn directly from the general law because it is first necessary to search for the existence or inexistence of specific rules and criteria that can eventually be established in a specific international law. In other words, it is necessary to rule out the existence of any law in force between the parties, applicable to settle the dispute, i.e., a lex specialis, a treaty, a juridical obligation in force. The Court has established: Les conclusions auxquelles la Chambre est auparavant parvenue l’ont amenée à constater que ce n’est pas le droit international général coutumier qu’il faut rechercher d’éventuelles règles prescrivant spécifiquement l’application de tel ou tel critère équitable ou l’utilisation de telle ou telle méthode pratique aux fins d’une délimitation comme celle qui est requise dans le cas d’espèce. Le droit international coutumier, on l’a vu, se borne à prescrire en général l’application de critères équitables et l’utilisation de méthodes pratiques propres à traduire concrètement ces critères. Il faut donc se reporter au droit international particulier pour voir s’il y existe ou non, dans l’état du droit actuellement en vigueur entre le Parties au présent procès, une quelconque règle de droit requérant spécifiquement des Parties, et par conséquent de la Chambre, l’application à la délimitation recherchée de certains critères ou de certains méthodes pratiques déterminées137.

[On the basis of the conclusions already reached, the Chamber has found that general customary international law is not the proper place in which to seek rules specifically prescribing the application of any particular equitable criteria, or the use of any particular practical methods, to reach a delimitation of the kind required in the present case. As already noted, customary international law merely contains a general requirement of the application of equitable criteria and the utilization of practical methods capable of implementing them. It is therefore special international law that must be looked to, in order to ascertain whether that law, as at 137

Ibid., p. 300, para. 114.

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present in force between the parties to this case, does or does not include some rule specifically requiring the parties, and consequently the Chamber, to apply certain criteria or certain specific practical methods to the delimitation that is requested.]

The existence of a treaty or a juridical obligation between the parties which is a lex specialis for maritime delimitation is the rule applicable to settle the dispute, provided that, however, its validity, effectiveness, and scope are confirmed. And even in that case, its application will depend on the maritime spaces concerned, territorial sea, continental shelf or exclusive economic zone, as well as based on the existence or not of particular rules or methods applicable to the tracing of the maritime boundary line in the spaces governed by such lex specialis. In the event of disagreement between the parties, on some or all of such aspects and the impossibility to arrive at a solution through diplomatic negotiation, the solution would have to come from a jurisdictional or arbitral body.

In the absence of any lex specialis or particular international law between the parties on the maritime delimitation line and/or the delimitation method, the solution to the dispute shall be achieved by applying the applicable principles and rules of the general international law; i.e., the rule of equitable-special circumstances principles. This rule, in the case of territorial sea, necessarily implies tracing an equidistant line at least in a provisional manner; such line will later be confirmed or rectified in light of special circumstances, in such a way that an equitable solution is achieved. In the case of the continental shelf and the exclusive economic zone, it would be advisable to trace a preliminary equidistant line as a preliminary procedure, but it should not be compulsory. Of course, such line shall subsequently be tested in order to determine if its tracing achieves an equitable solution in light of the pertinent circumstances. The method or type of line are not, therefore, an end in themselves or are they assumed to achieve equitable solutions either. They are simply instruments whose validity depends on whether or not their utilization will arrive at an equitable solution.

The essential principle and rule from such convergence of both positive and customary rules, which are the core elements of general law of maritime delimitation, as shall be further detailed, is the search for equitable solutions.

This has become the purpose and goal of any maritime delimitation.

Certainly, equidistance is the method which is closest to equity, in the absence of special circumstances. However, international law does not make equidistance an imperative or binding rule. In principle, it implies a number of delimitation methods; it does not recognize a single method as compulsory, whether or not it considers equidistance as the one which most frequently achieves equity in the results.

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For this reason, it has been pointed out that the maritime delimitation law is a “situational” law, which implies that in reality an equitable result cannot be achieved with the application of one delimitation method with a single rule and absolute application. On the contrary, the Court’s practices and judgments support caseby-case solutions, where each case is a universe, but where particular solutions are always subordinated to fulfilling a general rule or principle which mandates that at the end of the process the delimitation shall result in an equitable solution for the two parties.

In reality, one of the specificities of international law of maritime delimitation, disregarding the fact that it is essentially a customary law, is the principal and innovative role played by international jurisprudence. Perhaps, there is no other area in international law in which the judge is not strictly limited to construing and enforcing the laws in force. From the judgment on the North Sea Continental Shelf, in which the Court sets aside the 1958 Geneva Convention as the Court objected to consider it customary law, to the judgments in which the Court has developed the principles and criteria applicable to maritime delimitation, especially those concerning the Continental Shelf between Tunisia and Libya (1982) and the matter of the Gulf of Maine between Canada and the United States of America (1984), we have witnessed a process in which it has been the jurisprudence which has created the law.

This process, which the Court first awarded to the evolution of customs, has been referred to as the outcome of its own actions and responsibility in the judgment on the maritime delimitation in the region located between Greenland and Jan Mayen: Ainsi, pour la délimitation du plateau continental en l'espèce, même s'il convenait d'appliquer non l'article 6 de la convention de 1958, mais le droit coutumier du plateau continental tel qu'il s'est développé dans la jurisprudence, ce serait se conformer aux précédents que de commencer par la ligne médiane à titre de ligne provisoire, puis de rechercher si des ‘circonstances spéciales’ obligent à ajuster ou déplacer cette ligne138. [Thus, in respect of the continental shelf boundary in the present case, even if it were appropriate to apply, not Article 6 of the 1958 Convention, but customary law concerning the continental shelf as developed in the decided cases, it is in accordance with precedents to begin with the median line as a provisional line and then to ask whether "special circumstances" require any adjustment or shifting of that line].

On the other hand, the Court has pointed out that there are no doubts with respect to the compulsory application of the methods set forth under Article 6 of the 1958 Convention upon dispute concerning the continental shelf, and only the continental shelf, for such States that have ratified the Convention; 138

Cf. ICJ. Recueil, 1993, p.61, para. 51.

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nevertheless, it is clear that if there are special circumstances, it will be possible to turn to another method or combination of methods. In order to arrive at this decision on the judgment on the Gulf of Maine, the Court analyzed Canada’s arguments, which determined that the right thing to do was establish a single delimitation median line for the territorial sea, the contiguous zone, and the exclusive economic zone. Canada’s arguments were based on the consideration that the 1958 Convention on the Continental shelf, particularly paragraphs 1 and 2 of Article 6, which set forth that the delimitation of maritime zones of opposing States should be done through a median line and in the case of adjacent States with an equidistant line, was a rule of general international law.

Consequently, the rule to be applied was that of the exclusive economic zone.

However, the Court recalled that in the specific case of the Gulf of Maine, it was not just a matter of delimiting the continental shelf, but also the exclusive economic zone. On this regard, the Court pointed out that it considered doubtful that a conventional obligation, the 1958 Convention —which concerned explicitly the delimitation of the continental shelf through its extrapolation or an extensive interpretation—, could be enforced on a field which is evidently much greater, unquestionably heterogeneous, and accordingly fundamentally different, as is the exclusive economic zone139.

This process of developing and drafting rules on delimitation by the International Court of Justice and the evolution of the international rules, enshrined in the 1958 Convention and the Convention on the Law of the Sea of 1982, have created, as affirmed by Laurent Lucchini140, into a dual system in which two sets of rules on maritime delimitation coexist, and given their origin they stemmed from: a) The positive rules, expressed in the “equidistance-special circumstance” rule applicable to the delimitation of territorial sea (1958 Convention and 1982 Convention) and the continental shelf on the case of the 1958 Convention. b) Customary laws, prepared and enshrined by international jurisprudence, applicable to the exclusive economic zone which can be summed up in the following formula: “equitable-special circumstances principles”.

This dual legal system is not excluding, nor does it impose any rule over another.

On the contrary, they supplement each other and are driven towards the same criteria. The key element, common to the two sets of rules, is determined by the theological of maritime delimitation, which aims at nothing else but achieving an equitable solution.

139 140

Ibid., p. 301.

Lucchini, Laurent, “La Delimitation des Frontières Maritimes”. In: Maritime Delimitation, 2006, p. 9.

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This perspective, to a certain extent, has overcome the contradiction existing between those who affirmed that it was enough to have an equidistance line to achieve equity and those who, on the other hand, affirmed that equity was the only principle and criterion which could arrive at equitable solutions.

The Court’s jurisprudence has settled to a great extent this problem, or, in any event, has made it irrelevant, bringing closer, on one hand, the solution to each case, the equidistance-special circumstance formulas and special equity-circumstances with a case-by-case approach, and, on the other hand, affirmed the prevalence of equitable principles as the key element in the conception and application of one or another series of rules. As Lucchini has well recalled, the Court has directly rendered an opinion on the convergence of many cases, among them the judgment of the maritime dispute between Qatar and Bahrein, in which it establishes that the rule of equidistance-special circumstances and the rule of equitable-pertinent circumstances principle, as they have been developed by the case law and the practice of the States are closely linked.141 Under this perspective, it is possible to speak of a unifying process of the conventional and customary laws, which are increasingly building an integrated legal body.

In the Peru-Chile maritime dispute, this set of principles, rules, and method for delimitation of customary law shall be applied to settle the dispute, starting by determining the existence or not of a lex specialis, in order to later determine the maritime frontier between the two countries under the principles-equitablespecial circumstance formula, whose application, in the absence of special circumstances, should be performed through an equidistant line for each of the maritime spaces subject to the boundary dispute.

7. Basic Rules for the Interpretation of Treaties and their Application on Maritime Delimitation Law The rules govern the behavior of individuals or entities. In this sense, any legal rule is conceived to be enforced, i.e., to govern inter-subjective behaviors that make up the legal relationship. The application of a rule necessarily implies understanding its content and scope. For this reason, the rules are worded in general terms since they are to be applied upon innumerable situations, and it will also be necessary to analyze its grammatical structure and the scope of its content in order to ensure it is properly applied. In other cases, the wording of the rules can be confusing or ambivalent, since there could be two or more ways 141

Cf. ICJ, Recueil, 2001.

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of understanding or applying a rule. To this end, it is necessary to construe the rule. The intellectual act or process which consists in establishing the exact sense and content of a juridical rule is called interpretation142.

Taking into account that the Government of Chile affirms that maritime delimitation has already been established in the 1952 Declaration of Santiago, the Agreement relating to a Special Maritime Frontier Zone, and other instruments, “confirmed by the practice”, from the view point of the juridical method used by the Court and the Arbitral Tribunals for the preparation of its judgments, it has to determine whether, in fact, these instruments have established —or not— a maritime boundary between the two countries in the entire maritime zone where overlapping occurs, i.e., the territorial sea, contiguous zone, continental shelf, and the exclusive economic zone. A first task is to establish whether or not these instruments have —or not— a juridical obligation between the parties on maritime delimitation and, if any, what maritime areas it is related to. This is a task inherent to the interpretation of treaties, for this reason, it is essential to have a brief account of the rules of international law on this matter.

The Vienna Convention (third section) on the Law of Treaties of 1969 establishes the general and specific rules that must guide the understanding and interpretation of treaties. The general fundamental rule is simple: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”143.

Good faith is related to the material and subjective facts in the sense that parties sign treaties with the express intention of fulfilling them. Consequently, the interpretation of their rules should always be done taking into account that their provisions are intended to enable their application and not to hinder it; in order to satisfy their object and not make it impossible or misinterpret its meaning.

The understanding, reading, and interpretation of the treaties’ texts shall be done in light of the ordinary use of the language, using the ordinary meaning of words, phrases, and sentences with the sense and scope naturally given to them by grammar.

The context for the purpose of the interpretation of a treaty shall comprise any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; as well as any instrument which was made by one or more parties in connection with the conclusion of the treaty and 142 143

Daillier, Pattrick & Pellet, Alain, Droit international public, Paris, LGDJ, 2002, p. 253.

United Nations, Vienna Convention on the Law of Treaties, Article 31, para. 1, 1970.

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accepted by the other parties as an instrument related to the treaty144. In addition, interpretation shall take into account, together with the context any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and any relevant rules of international law applicable in the relations between the parties145.

Interpretation shall be done in light of the object and purpose of the treaty. In principle, any international law shall realize its object and purpose. For this reason, any interpretation that gets off or impedes or jeopardizes the achievement of the treaty’s object or purpose shall be unlawful. Understanding and comprehension of the provisions of the treaty shall always be done in such a way that such interpretation is consistent with the functionality and achievement of the object and purpose of the treaty.

If the treaty leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable, and only in this case, shall the parties turn to supplementary means of interpretation: the preparatory work of the treaty and the circumstances of its conclusion146. This is done bearing in mind that the guiding rule is to find the willingness or intention of the parties recorded in the text of the treaty.

The International Court of Justice, through its judgments and consultative opinions, has determined these essential rules for interpretation, even before the approval and negotiation of the Vienna Convention on the Law of Treaties.

Interpretation is not aimed at examine the subjective willingness of parties separately from the formal text, but rather at determining the intention expressed in the obligations set forth in the text of the treaty itself, which is deemed to include the willingness of the parties. It is a matter of finding the objective willingness of the text. Hence, it is assumed that the text represents the true intention of parties. In this sense, the parties’ intentions make up the objective reality recorded in the text of the treaty and not a subjective reality to be unveiled, beyond and apart from what has been established in the text. The text of the treaty, its normal and ordinary reading, consistent with the object and purpose of the treaty, are the legitimate basis for the interpretation.

Ibid., Article 31, para. 2.

Ibid., Article 31, para. 3.

146 Ibid., Article 32.

144 145

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This consistency between the literal text, its context, object, and purpose mean that the interpretation must follow the principle of unity and integrity; thereby avoiding any partial interpretation that can result from reading phrases or expressions out of the general context, without taking into account the conceptual, logical, and juridical connection of its provisions and parts.

Interpretation in this context must follow a logical sequence within the object and purpose of the treaty and should never lead to an absurd or to impede or jeopardize the achievement of the treaty’s objectives.

The United Nations International Law Commission has highlighted this criterion: “When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted”147.

147 United Nations International Law Commission, Draft articles of the Vienna Convention, doc. A/39/12/ Add 2, p. 41.

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III THE PERU-CHILE MARITIME DISPUTE

Chapter 1: Origin of the Peru-Chile Maritime Dispute, its Components, and its Critical Date

Peru and Chile have a maritime dispute with a legal nature and with three components: two basic ones and one derived. First, the dispute over the maritime delimitation in each of the spaces in which international law recognizes sovereignty and jurisdiction rights of States (territorial sea, contiguous zone, continental shelf, and exclusive economic zone). Second, the intention of Chile to disregard Peru’s sovereignty and jurisdiction over an area of approximately 28,471.86 km2 located in an area different from the maritime space subject to the boundary dispute and to the projection of the coasts of Chile up to 200 miles.

And, finally, as a derived component of the maritime dispute, the disagreement on the starting point of the maritime boundary.

Concerning the first case, Peru believes that since there is no maritime delimitation, the boundary shall be determined following the rules of international law, i.e., through a line that ensures an equitable outcome of such delimitation. Chile, on the other hand, affirms that the maritime boundaries have been determined conventionally in the Declaration on the Maritime Zone or the 1952 Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone. For Peru, such treaties, although valid and in force, do not establish in any of their provisions any boundary or delimitation boundary whatsoever regarding the maritime boundary between the two countries.

Concerning the second case, Chile disregards Peru’s sovereignty over a big maritime space of approximately 28,471.86 km2 which it intends to grant it the status of high seas, through the presential sea thesis. For Peru, in accordance with international law and its domestic laws, this space forms part of its maritime domain up to 200 miles, and, therefore, is subject to its sovereignty and jurisdiction. This maritime space is outside the scope of Chile’s 200-mile maritime zone.

Concerning the third case, Peru believes that the starting point of the future line of the maritime boundary is the one corresponding to the end of the land

Maritime Delimitation with equity: the Case of Peru vs. Chile

boundary —the point called Concordia— located on the seashore at coordinate 18°21’08” S latitude, as set out in the 1929 Treaty and its Additional Protocol and the Records of the 1930 Joint Commission of Limits. For the Government of Chile, the starting point of the maritime boundary is not at the terminus of the land boundary, but instead inside the territory, on the point where Boundary Marker N° 1 is located, at parallel of latitude 18°21’00” latitude. According to the Government of Chile, the 1929 Treaty would have been amended in such terms by a report and the records evidencing technical works.

Peru and Chile, like any other coastal State, have sovereign rights and jurisdiction over an area of 200 miles of maritime territory. The entitlement of such rights over the sea adjacent to their coasts stems from the State’s sovereignty over their corresponding territories. Both countries have followed the provisions set forth in international law and in their domestic laws and which mandate the establishment of their corresponding baselines from which each State projects its maritime domain.

In 2000, Chile approved Nautical Chart No. 6 from the Naval Hydrographic and Oceanographic Service of the Navy, with the heading Rada de Arica a Caleta Matanza148, which depicts, from normal baselines, 12 miles of territorial sea, 24 miles of contiguous zone, up to 200 miles of exclusive economic zone and up to 200 miles of continental shelf.

This nautical chart was deposited with the Secretariat of the United Nations on 21 September 2000149. In such nautical chart, the Government of Chile assets that the maritime boundary is made up of parallel 18°21’00” South, which results in the amputation of Peru’s maritime domain projection up to 200 miles over the whole area overlapping with Chile’s projection. The maritime area concerned is approximately 67,139.4 km2.

Both the Nautical Chart prepared by the Government of Chile and the notice sent to the United Nations add another element of complexity to the problem since the starting point of the maritime boundary between the two countries is set to be Boundary Marker No. 1 of the common land boundary. This provision contradicts the provision set forth in the Treaty and the Additional Protocol for the Settlement of the Dispute regarding Tacna and Arica, signed on 3 June 1929, which definitively establishes the land boundary between the two countries.

This treaty, perpetual given its own nature, establishes that the point where the Cf. Servicio Hidrográfico y Océano Gráfico de la Armada de Chile, Carta de Navegación "Rada y Puerto Arica," Santiago de Chile, 2000.

149 Cf. Government of Chile, Note addressed to the Secretariat General of the United Nations, 21 September 2000.

148

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boundary reaches the sea is a “(…) point on the coast to be named ‘Concordia,’ ten kilometers to the north of the bridge over the river Lluta.”150 Boundary Marker No. 1 is simply the demarcation reference point for the boundary closest to Point Concordia, point which intercepts the seashore.

The 1929 Treaty ended the 1879 war between Peru and Chile, as a result of which Peru had to force to surrender the Provinces of Tarapacá and Arica to Chile. Hence, the Government of Chile’s attitude of disregarding the provisions set forth in the 1929 Treaty further adds to the boundary maritime dispute a disagreement on the starting point of the maritime boundary.

The Government of Chile asserts that the starting point of the maritime boundary would be a dry point, i.e., Boundary Marker No. 1, which would leave part of Peruvian territory landlocked, or otherwise, the sea adjacent to its coasts would be under Chilean jurisdiction. The Government of Chile maintains that such point is located at coordinate 18°21’00”S because in 1968 and 1969 such point was located as a reference to place leading towers, whose purpose was to point out an area free of penalties for artisanal fishermen. Peru affirms that the starting point of the maritime boundary can only be the one where the land boundary meets the sea; in other words, the one set forth in the 1929 Treaty and which corresponds to Point Concordia on the seashore, located at coordinate 18°21’08”.

Upon learning about the preparation of Chile’s baselines and the corresponding notice to the United Nations Secretariat, the Government of Peru lodged the corresponding protests and indicated that it did not recognize the boundary alleged by Chile and further pointed out that the two countries have not determined maritime boundaries. Moreover, Peru pointed out that the point where the land boundary intercepts the seashore is the one established in the 1929 Treaty and not on Boundary Marker No. 1 as wrongly depicted in the nautical chart Rada de Arica a Caleta Matanza.

On 20 October 2000, Peru sent a Note to the Government of Chile in which Peru lodged its reservation and protest. Peru then stated that […] the Ministry of Foreign Affairs expresses its disagreement with the cartographic drawing of the said line and with the reference contained in the said Navigation Chart, as no specific treaty exists for the delimitation of the maritime frontier between the two countries…”151 In addition, when the United Nations Secretary General’s Office publicly disclosed the notice sent by Chile, the Cf. Treaty and the Additional Protocol for the Settlement of the Dispute regarding Tacna and Arica, 1929, Article 2.

151 Cf. Ministry of Foreign Affairs of Peru, Note sent to the Embassy of Chile, 20 October 2000.

150

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Government of Peru issued a declaration on 9 January 2001 in which it lodged a reservation on its position and interests regarding the existence of an alleged maritime boundary between both countries and declared that: “As of this date, Peru and Chile have not concluded a specific maritime boundary delimitation agreement in accordance with the applicable rules of international law; therefore, the indication that parallel 18°21’00” is a boundary between the two countries is devoid of any legal grounds.152

On the other hand, Peru, in compliance with the rules of international law and the mandate of its own Constitution, has approved its laws determining the baselines, as has Chile. On 3 November 2005, Peru passed Law 28621 on this regard. This legal instrument establishes, in Article 2: “The baselines have been determined by the geographic coordinates described in Annex 1, which begin on the North at coordinates 03°23’33.96”S latitude, 80°19’16.31”W latitude (WGS 84: Lat. 03º23’31.10”S, Long 80º18’49.29”W) and ends on the South, at coordinates WGS84:Lat; Long. 70°22’39”W, included in the six nautical charts of Annex 2 to this law.”153 Coordinate of latitude 18°21’08” S corresponds to the convergence point of the land boundary with the sea, i.e., the location of Point Concordia on the seashore, in accordance with the provisions of the 1929 boundary treaty.

Article 4 of the Peruvian Baselines stipulates that: “(…) in accordance with the Political Constitution of Peru, the outer limit of Peru’s maritime domain is drawn in such a way that ach point of such outer boundary is located 200 nautical miles off the closest point to the baselines, in accordance with the delimitation criteria stipulated in international law.”154 In this way, Peru traced the outer limit of its 200-mile area, in such a way that such distance was constant throughout the projection of its adjacent sea along the coast of Peru. Given the configuration of the coasts, the 200-mile projection of the two countries overlap at the lateral boundary; hence there is a need to delimit the area where such overlapping occurs in accordance with the rules and principles of international law on maritime delimitation.

The Government of Chile has began another dispute, with a strictly legal nature and different from the maritime delimitation, through its domestic laws and certain international acts through which Chile disavows Peru’s sovereignty and jurisdiction rights over the Peruvian maritime space which is different from Government of Peru, Official Notice, 19 January 2001.

“Ley de Líneas de Base del Dominio Marítimo del Perú” In: Official Gazette El Peruano, No. 28621, 2005.

154 Ibid.

152 153

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the area concerned in the maritime delimitation dispute. In fact, the maximum projection deployed by Chile of its maritime space up to 200 miles not only overlaps with Peru’s projection but also establishes a continuity solution between Peru’s sovereignty and jurisdiction spaces which are not included in the dispute.

This is a maritime space subject to the jurisdictional competences of Peru warranted by the entitlement arising out of the principle of adjacency, and regulated by the Peruvian Baselines Law and which covers 28,471.86 km2, i.e., approximately 10,000 km2 less than those comprised in the boundary dispute.

Chile claims this area as high seas and hence is subject to the “presential sea” thesis. When considering this space as high sea and claiming its preemptive rights on economic, security, and environmental conservation issues Chile disregards Peru’s sovereignty and jurisdiction over that large area of its maritime domain.

Thus the maritime legal dispute between Peru and Chile deals with three issues: a) Delimitation of the maritime boundary. b) Disagreement on the starting point of the maritime boundary, irrespective of the delimitation hypothesis. c) Chile’s intention of disavowing Peru’s sovereignty over a 28,471 km2 area; hence Chile attributes itself jurisdictional rights.

Each of these components of the maritime dispute has a legal nature since they are a matter of international law on maritime delimitation and concern the application of legal institutions and rules. With regard to these disputes, Peru and Chile persistently have different and opposing positions; hence, from an international law’s point of view, this is a legal dispute.

Concerning the maritime boundary, the dispute comprises the boundaries of all areas considered under the State’s sovereignty by international law: territorial sea, contiguous zone, continental shelf, and exclusive economic zone.

Concerning the law of the sea, Peru and Chile have had relations at high levels of coordination, identification of their positions, and joint actions since 1947, when they approved their corresponding unilateral declarations claiming their sovereignty and jurisdiction up to 200 miles. In 1954 signed a maritime boundary cooperation agreement which determined a fishing buffer zone over a small area of the maritime frontier zone. This agreement was enforced as of 1967. During all this time, neither country has taken on unilateral initiatives to determine their maritime boundaries. There was a non-delimited frontier and such agreement was enforced in order to release artisanal fishermen from any fine when they unintentionally sailed into the maritime zone of either country. Upon applying 95

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this agreement, the criterion used was the frontier zone. This situation would change as of 2000, when the Government of Chile asserted, for the first time by means of international acts, its intent of considering that the boundary had been delimited through parallel of latitude 18°21’00”. Peru contested this intent alleging that no such maritime boundary exists. With the articulation, for the very first time a disputed consisting of opposing interests and legal positions between the two parties, the year 2000 surfaces as the critical date to be taken into account in the development of the dispute.

Chapter 2: Maritime Delimitation Dispute: Overlapping of 200-mile Areas of Peru and Chile

Using this legal instrument, the Governments of both Peru and Chile traced the projection of their maritime domain up to a constant distance of 200 miles starting from their baselines. Reiterating the existing legal dispute, the Government of Chile then made a declaration in which it pointed out its reservation to the Peruvian Baseline Law and insisted, also, on its position on the existence of binding agreements that had set the maritime boundary between both countries.

In principle, the 200-mile projections carried out by either State are consistent with international law, since from equal legal entitlements (the principle that “the land dominates the sea” or adjacency principle), each Party, with legitimacy, has established its maritime area up to 200 miles. The problem is that there is not enough sea space for such projections not to overlap. Consequently, there is a material assumption that underlies any delimitation: the overlapping of projections of maritime spaces adjacent to the coasts of two States on their lateral continental boundary.

The controversy which faces the two countries on the maritime delimitation matter emerges both materially and legally from the text of the domestic legal instruments of each country regarding their baselines and their corresponding communication to the United Nations Secretary General. Since the projections of either country overlap, such countries cannot extend their maritime domain up to 200 miles in the area where such overlap occurs. And, as we have seen, each projection is carried out under a legitimate entitlement.

The maps enclosed in page 99 illustrate the problem. Map 1 shows the Peruvian maritime zone as per the title held by Peru resulting from the adjacency principle. It is worth noting that Peru is entitled in the whole zone to 200 miles constant from the coastal baselines. Map 2 shows the constant 200-mile 96

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Chilean maritime zone, in blue, that it is entitled to, also based on maritime adjacency. The two projections are based on lawful entitlements. Map 3 shows the area where the maritime zones of Peru and Chile overlap, which consists of a surface area of 67,139.4 km2. This is the area in dispute in the maritime dispute between the two countries. Map 4 shows Chile’s maximum claim, which consists in taking under its sovereignty and jurisdiction the entire surface area of 67,139.4 km2. This claim entails a complete mutilation of Peru’s maritime domain in the overlapping area. Map 5 depicts the division of the overlapping area applying, in accordance international law, an equidistant line yielding equity in the results.

In this last case, we can appreciate, that the Chilean claim consists in submitting under its sovereignty and jurisdiction the entire overlapping area, thereby fully depriving its counterpart from its projection; while, on the other hand, the solution offered by international law divides the disputed area under the principle of equity. This solution is consistent with one of the equitable principles, enshrined in the jurisprudence of the International Court of Justice, which mandates that the maritime projection of one party shall not have a cutoff effect over the maritime projection of the other Party.

If the verification of the existing overlapping were the only piece of data from reality, the solution would be quite simple, in so far as the parties would have no doubt in going ahead with the delimitation with equitable results through an agreement. However, the problem is more complex, since the Government of Chile believes that the overlap would have already been settled by a line running on the parallel of latitude passing through Boundary Marker Number 1 on the land boundary. According to the Government of Chile, such delimitation line would have been established in virtue of international agreements, valid and in force, specifically the Declaration on the Maritime Zone or the 1952 Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone.

The State of Peru, which recognizes the validity and effectiveness of such agreements, asserts that they neither fixed nor traced any maritime boundary whatsoever, in any of the four zones recognized by international law as maritime spaces subject to sovereignty and jurisdiction rights of the States and which corresponds to its maritime domain: territorial sea, contiguous zone, continental shelf, and exclusive economic zone. Such spaces, on the other hand, did not exist in the law when such instruments were signed because at the time all that international law recognized was the 3-mile territorial sea.

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The maritime spaces mentioned in both the 1952 Declaration of Santiago and the 1954 Agreement are not the same maritime spaces as the ones recognized at such time (1952-1954) as subject to the sovereignty of the State, let alone, the maritime spaces that the current international law recognizes under the rights of sovereignty and jurisdiction of States.

Hence, such instruments shall be analyzed not only through the provisions and obligations therein but also considering the spatial scope of their application.

1. The 1952 Declaration on the Maritime Zone or Declaration of Santiago In 1952, the Government of Chile, upon consulting with the Governments of Peru and Ecuador, within the context of the diplomatic actions that the Ministries of Foreign Affairs of the three countries were spearheading in order to protect their maritime resources up to 200 miles, had the initiative of calling a Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific to be held in Santiago between 11 and 16 August 1952.

The origin and purpose of the calling was precisely stated during the opening session of the Conference by the Minister of Foreign Affairs of Chile, Fernando Garcia Oldini: Upon the initiative of his Excellency the President of Chile, the Government of Chile has called a meeting of the South Pacific American countries in order to address the problems related to natural produce of their seas and, specially, those related to the protection, whaling, and industrialization of whales, fundamentally in connection with the food situation not only of our peoples but also of a major portion of humanity.155

The purpose of the conference was, hence, very specific, and also had an economic nature: to protect marine resources and, particularly, address the problem of indiscriminate whaling by foreign vessels in the seas adjacent to the South Pacific coasts. Garcia added to the motivation of the summon the programmatic vision of the Government of Chile:

155 Cf. Minutes of the Conference on the Exploitation and Conservation of Maritime Resources of the South Pacific, Santiago, Chile, August 16, 1952.

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PACIFIC OCEAN

KEY International boundary Department / regional boundary Department / regional Capital City Province Capital Paved road Unpaved road Railway

Cartographic design: Grupo Geo Graphos 2007

Map of the Peru and Chile Frontier Region

Peruvian Sea Maritime boundary starting point

KEY International boundary Department / regional boundary Department / regional Capital City

Chilean Sea

Kilometers Nautical Miles

Cartographic design: Grupo Geo Graphos 2007

Map 1: 200-mile area projection of the Republic of Peru

Peruvian Sea

200 maritime miles

Maritime boundary starting point

Chilean Sea

KEY International boundary Department / regional boundary Department / regional Capital City Kilometers Nautical Miles

Cartographic design: Grupo Geo Graphos 2007

Map 2: 200-mile area projection of the Republic of Chile

Peruvian Sea

Overlapping Area of the Maritime Zones (67,139.4 km2)

Maritime boundary starting point

KEY International boundary Department / regional boundary Department / regional Capital City

Chilean Sea

Kilometers Nautical Miles

Cartographic design: Grupo Geo Graphos 2007

Map 3: Overlapping Area of the Peruvian-Chilean maritime projections up to a distance of 200 miles (area under legal dispute).

Peruvian Sea

200 maritime miles

KEY International boundary Department / regional boundary Department / regional Capital City

Maritime boundary starting point

Chilean Sea

Kilometers Nautical Miles

Cartographic design: Grupo Geo Graphos 2007

Map 4: Claim by the Republic of Chile for the delimitation of the overlapping area by applying a line running along the parallel of latitude (note that this entails the amputation of the entire area corresponding to Peru’s projection)

Maritime Delimitation with equity: the Case of Peru vs. Chile

Peruvian Sea

ne t li

tan

idis

Equ

Maritime boundary starting point

KEY International boundary Department / regional boundary Department / regional Capital City

Chilean Sea

Kilometers Nautical Miles

Cartographic design: Grupo Geo Graphos 2007

Map 5: Delimitation of the overlapping area in accordance with international law on maritime delimitation, through an equidistant line

[…] the existence and projection of this resource implies for our Governments the imperative to oversee its conservation and safeguard, by adopting the measures necessary to control the interference of foreign trade interests in the sea areas under their sovereignty; without the farsighted actions of our nations such resources which are vital for the future of our countries, would be bound to gradual and steady extinction.156

To address the problems of indiscriminate whaling and incursion of foreign fishing fleets, the Conference should —as pointed out by the Minister of Foreign Affairs of Chile— adopt decisions for the three countries “in the sea region where their sovereignty extends” to effectively control fishing and hunting by foreign vessels and hence conserve their natural resources.

Alberto Ulloa, Peruvian delegate to the Santiago Conference, ratified this evidently economic motivation: In 1952, when the Declaration of Santiago was issued by Peru, Chile, and Ecuador in order to protect the fisheries adjacent to their coasts to protect them from destruction, hoarding by foreign traders who threatened to deplete them to obtain profits; on such seas there were 19 fleets engaged in whaling and which had 156

Ibid.

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factory ships, tanks, and refrigerators as I have mentioned earlier. Such vessels had flags from Norway, England, the South African Union, Holland, Panama, Japan, Russia, Argentina, and Italy.157

The opening remarks of the Conference, the order of business, or any other document thereof make no reference whatsoever to a supposed willingness of the States to establish maritime boundaries or to negotiate the delimitation of their maritime boundaries. The purpose of the Conference is, furthermore, formalized in Article 1 of the Regulations, which does not include any provision on the subject of maritime delimitation either. Such Article reads as follows: Article 1.- Purpose of the Congress: In accordance with the invitation made by the Government of Chile to the Governments of Ecuador and Peru, the parties agreed to hold in Santiago de Chile a Conference from 11 to 16 August in order to assess and solve the problems related to the exploitation and conservation of their maritime resources in the South Pacific.158

In keeping with the purpose of the Conference, the documents that were approved are consistent with the purpose of the invitation. In addition to the Declaration on the Maritime Zone or Declaration of Santiago —in Chile’s initial version, this was related to the perpetual sovereignty only over the continental shelf, seabed and subsoil of the submarine areas— the Conference approved a resolution on the creation of a Standing Committee of the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific and the Regulations for Marine Hunting Operations in the Waters of the South Pacific (whaling).

If the parties had had the intention or willingness to discuss on maritime delimitation, such topic would have been included in the order of business as a specific item. It is unthinkable that given the weight of a topic of this sort it would not have been included in the order of business if the Participating States had had that intention. Similarly, if this had been the intention of the parties and if they had agreed upon maritime boundaries, obviously such understandings would have been recorded in a specific legal instrument, whether a convention, agreement, or treaty, separate from the other agreements. Such instrument would have had to record the boundaries agreed upon, the zone to be delimited, the solution in case of special delimitation clauses, the tracing of the boundary, and, most basically, the charts or maps on which the boundaries are plotted and depicted.

157 Ulloa Sotomayor, Alberto, “El régimen jurídico del mar,” In: Revista Peruana de Derecho Internacional, No. 51, 1957, p. 56.

158 Cf. Regulations to the Conference on the Exploitation and Conservation of Maritime Resources of the South Pacific, Santiago de Chile, 11 August 1952.

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Moreover, it is unthinkable that the Ministries of Foreign Affairs, bodies in charge of managing the international affairs of states and with ample and deep knowledge on international law on boundaries (as a result of the diverse land delimitation problems, arbitration proceedings, and processes that had confronted the three countries throughout their history and which also confronted them at the time), could have overlooked that fact that maritime boundaries had to become formalized through a treaty subject to the approval of their Congresses and subsequent ratification159.

The circumstances under which the Declaration was approved, its context, the declarations of the delegates, the records of the meetings, and the other instruments approved or related thereto, testify that its purpose and goal was to assert the sovereignty of Chile, Peru and Ecuador so as to protect the natural marine resources within the 200-mile distance.

Within this context and with this scope, the Declaration on the Maritime Zone, approved on 14 August 1952, made a deep innovation to international law of the sea by establishing an area of sovereignty and jurisdiction over the waters, soil, and seabed up to a minimum distance of 200 miles. For the first time in history was a unilateral claim of this nature and scope made.

Many States protested against the terms of the Declaration and its novel character because it certainly did not reflect the rules of the international law in force at the time. This was a unilateral recognition that triggered a substantive and radical reform of the institutions theretofore inherent to the Law of the Sea. Alberto Ulloa has synthesized the substantive elements of the declaration, its nature, and scope in the following terms: a) It is consistent with the doctrine which makes Mankind the main subject of international law. b) It considers that human welfare shall preferably be contemplated in connection with the peoples adjacent to the fishery zones. c) It accepts the conservation and protection of natural resources and the regulation of their use in such a way that it benefits coastal countries. d) It is opposed to indiscriminate exploitation which may jeopardize the conservation of species and diminishes the sources of increase of human wellbeing.

The Declaration of Santiago was not negotiated or approved as an international treaty, but rather as a diplomatic instrument, which the parties subsequently gave the level of international treaty after submitting it to approval by their Congresses and by depositing the corresponding ratification instruments.

159

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e) It considers that the geological and biological factors which determine the existence, conservation, and development of marine fauna and flora determine of in adequacy of the former extension of the territorial sea and the contiguous zone adjacent to the former. f) It proclaims that each country possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries up to a minimum distance of 200 miles from these coasts; this distance encompasses exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof for the purposes of defense and protection of the ichthyologic resources. g) It expressly recognizes the innocent and inoffensive passage of vessels of all nations through the indicated area. h) It expresses the purpose and hope of signing agreements for the application of the principles of the Declaration; without this entailing the exclusion of fisheries of nationals of other States from participating therein160.

Ulloa’s opinion, in addition to representing an analytical value, has a testimonial connotation since he was one of the authors of the Declaration of Santiago, as representative of Peru.

The Declaration consists of three paragraphs in the preamble and six in the operative or provisional section. The paragraphs in the preamble refer to the motivation or reasons why the three states decided to establish the 200-mile maritime zone. Such zones have an economic and social nature, related to the right to organize their own resources and wealth, as well as ensure that their peoples are entitled to enjoy them, particularly for feeding purposes161.

The first paragraph of the preamble affirms the obligation “to ensure for their peoples the necessary conditions of subsistence, and to provide them with the resources for their economic development.”162 The second one refers to the need to care for the conservation and protection of their natural resources and to the power to regulate the activities to secure their best exploitation. The third one, as a natural conclusion thereof, asserts the need to “prevent any exploitation of these resources, beyond the scope of their jurisdiction, which endangers the existence, integrity, and conservation of these resources (…)163.

Ulloa Sotomayor, Alberto, op. cit., p.76.

“Declaración de Zona Marítima del 14 de agosto de 1952.” In: Llanos Mardones, Ignacio, El Derecho de la delimitación marítima en el Pacífico Sudeste, Santiago de Chile, Ril, 1999.

162 Ibid.

163 Ibid.

160 161

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The three paragraphs of the preamble are strictly consistent with the essential motivation of the Declaration of expanding the zone of sovereignty and jurisdiction over the adjacent sea in view of conserving and taking advantage, for the benefit of their peoples, of the resources existing in the a sea which is particularly resourceful in marine species given the presence of the Humboldt Current.

The operative section of the Declaration consists of six articles. With the exception of Article IV, all of them have the same structure as the preamble, i.e., a declarative and pragmatic nature, which does not create any rights or obligations.

Article IV establishes a delimitation clause between Peru and Ecuador by way of an exception, given the existence of the Ecuadorian islands located less than 200 miles from the maritime zone of Peru.

Article I sets out that the former extension of the territorial sea and the contiguous zone are inadequate for the purposes of the conservation and exploitation of these maritime resources.

Article II is the key clause of this Declaration, because it is here that it specifies its purpose and goal: In the light of these circumstances, the Governments of Chile, Ecuador, and Peru proclaim as a norm of their international maritime policy that they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts.164

This is the key provision of the Declaration of Santiago. Through such provision, contesting the international law at the time, the three countries established the exclusive sovereignty and jurisdiction of each of their States over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts.

The Declaration does not shine light on the legal nature of such zone. The use of the term “exclusive” to qualify the quality of sovereignty prompted most of the international community to construe, at the time, that it implied the projection of territorial sea. Nevertheless, the Declaration does not refer to territorial sea but instead to “maritime zone.” This denotes the intention to avoid using the expression “territorial sea”.

The subsequent evolution of the actions of the signatory countries and the application of the Declaration, even within the context of the negotiations on 164

Ibid.

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the Convention on the Law of the Sea, has not settled the problem. Chile, which at the beginning defended the thesis that the Declaration of Santiago extended its territorial sea up to 200 miles, later changed its position to defend the opposite thesis, i.e., that it is not a matter of territorial sea, but rather patrimonial sea.

Ecuador always interpreted the Declaration to refer to extended territorial sea while Peru, in its Constitution, has introduced such area into its internal legal system as “maritime domain of the State.�

Irrespective of the nature of the 200-mile maritime zone proclaimed by the Declaration, the truth is that, from a juridical perspective, such declaration claims a minimum outer limit of 200 miles for each of the signatory countries from their coasts, maritime zone within which sovereignty and jurisdiction is reserved to each country. The Declaration does not establish technical criteria to identify the starting point for such projection. The tracing of the starting point for the outer limit of the maritime zone was made afterwards based on the evolution of the law of the sea and the domestic legislation of the States which have established their corresponding baselines, from which they project their sovereignty and jurisdiction up to 200 miles.

Article II establishes a maritime space of 200 miles, adjacent to the coasts of each State. This maritime zone is for all signatory States. It has not been included in the rationale or text of the Declaration, and, let alone, in the parties’ willingness for only one or two of the three States to have such projection up to 200 miles and not the other one. The text does not establish nor assume that the 200 miles will only be for Chile and Ecuador and not for Peru. For this reason Article II shall be construed as a proclamation for each State to possess a maritime area of 200 miles constant, which in the case of Peru and Chile, given the configuration of their coastlines, necessarily leads to an overlapping of their corresponding areas in the maritime frontier zone.

Article V recognizes the innocent and inoffensive passage through the area indicated for ships of all nations. And Article VI includes the intention of the parties to sign other agreements or conventions in order to apply the principles agreed upon.

2. The Declaration of Santiago Does Not Establish any Lateral Delimitation Rule between Peru and Chile and Let Alone a Tracing of such Alleged Delimitation The maritime zone established in the Declaration of Santiago excludes ipso jure any hypothesis of lateral delimitation along the parallel of latitude since its enforcement would mean cutting off from Peru a significant portion of its sea, 107

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preventing the objective and purpose of possessing 200 miles, as established by the Declaration, from becoming a reality. This unwarranted hypothesis would make it impossible to achieve the objective of the Declaration, thereby infringing the general principle in international law which sets out that treaties shall accomplish their purpose and goal.

Since there is no reference to any criteria or norm to delimit the continental sea in frontier areas where there is an overlap of the maritime projections of the parties, the Declaration left such matter to be settled by the application of the international law in force, which, as we have seen, was prone for the equidistant line.

Nevertheless, the existence of special circumstances on the maritime frontier of Peru with Ecuador —the presence of the Ecuadorian islands of Puná, Santa Clara, de la Plata, among others— called for the express need to prevent Peru’s 200-mile projection from including in Peruvian sovereignty such Ecuadorian islands or to limit the maritime projection thereof. In order to solve this problem, Article IV of the Declaration establishes as an exception to the a delimitation clause through the parallel line only and exclusively for such cases in which there were islands belonging to one of the States is situated at a distance which is less than the maritime projection of the other State. This Article literally states: In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea.165

This provision is clear and straightforward, considering both its grammatical structure and its logical structure. Its meaning and connotation are free from any ambiguity. Thus, there is no room for double interpretation. This, hence, derives directly from the text and there is no need to resort to complementary means of interpretation.

The expression “in the case of island territories” conveys an exception stemming from a specific and particular situation resulting from the unique circumstance of the presence of the islands. This exception for the case of island territories —pertinent circumstance—, is uniqueness in the relationship with the general rule which addresses the delimitation of the continental sea. Regarding the territorial aspect, the expression “island territories” is used as opposed to 165

Ibid.

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“mainland territories”. The two expressions are part of the jargon of the international law of the sea and are considered opposites, since one excludes the other. In other words, if something is island territories, it cannot be continental territory at the same time.

Article IV hence refers only and exclusively, to the unique circumstance of the presence of islands, in order to establish two provisions which are aimed at generating rights and obligations which, in that sense, differ from the operative structure of the remaining Declaration. These two provisions, applicable only by way of exception to the existence of islands are: a) The zone of 200 nautical miles shall apply to the entire coast of the island. b) If the islands belonging to one Party are situated less than 200 nautical miles from the general maritime zone belonging to another Party, the maritime zone of the island shall be delimited by the parallel at the point at which the land frontier of the States concerned reaches the sea.

The rule is clear and easy to understand. The parallel clause has been determined for an exception, as a rule to delimit island territories (“the maritime zone of the island or group of islands shall be delimited”), so as to prevent the islands belonging to one country from going under the sovereignty of the other country because it is situated less than 200 nautical miles from the latter (“If an island or group of islands belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries”).

The rule was included, as evidenced in the corresponding records of the meeting, by the delegate of Ecuador, Jorge Fernandez, in view of conserving Ecuadorian sovereignty over the islands of Puná, Santa Clara, and La Plata. In the first meeting of the Juridical Commission of the Conference on the Exploitation and Conservation of Marine Resources of the South Pacific, held on 11 August 1952, the delegate of Ecuador made an intervention to clarify Article 3 of the original draft presented by the delegation of Chile, which referred to the application of the Declaration on island territories.

The proposal by the delegate of Ecuador was that, in this case, i.e., when there were islands, the delimitation clause should run through the parallel of latitude.

The corresponding records of meeting records a summary of such intervention in the following terms: “Next, Mr. Fernandez observed that it would be convenient to make Article 3 more clear in order to prevent any error of interpretation of the zone of interference in the case of islands and suggested that the declaration 109

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be drafted based on the fact that the boundary line of the jurisdictional area of each country should be the corresponding parallel from the point where the boundary of the countries touches or reaches the sea.�166 The original text of Article 3, as presented by Chile pointed out: The indicated zone encompasses all waters within the perimeter made up by the coasts of each country and a mathematical parallel projected on the sea 200 nautical miles outward from the continental territory, following the coastline. In the case of insular territory, the 200 nautical mile zone shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, as determined in the first paragraph of this article, the maritime zone of the island or group of islands shall be limited, as far as applicable, to the distance that separates it from the maritime zone of the other State or country.167

The text suggested by the delegate of Ecuador better protected its interests and enabled an unquestionable formulation to define the maritime area of islands located less than 200 miles away from the general maritime zone of another State.

However, the original proposal for Article IV of the Declaration, Article 3 of the initial text, is significant, too, because it contains a reference to the method to be used for the tracing of the 200-mile special zone. The relevant section states: The indicated zone encompasses all waters within the perimeter made up by the coasts of each country and a mathematical parallel projected on the sea 200 nautical miles outward from the continental territory, following the coastline[...]168

The underlying idea in this wording was that the maritime zone, subject to the Declaration, encompassed the maritime space running from the coasts of each country up to the mathematical parallel of the sea, and that between them there were 200 miles constant, following the coastline. This projection of the maritime zone excludes any possibility of lateral delimitation by the parallel of latitude.

This part of the original Article 3 shows the rationality that explains why such delimitation provision was included as an exception for the Peru-Ecuador case, given the presence of islands in their maritime frontier zone. If the general projection of the area should follow the coastline, it was obvious that special 166 Cf. Conference on the Exploitation and Conservation of Maritime Resources of the South Pacific, 1952 and the Juridical Commission, Proposal on Continental Shelf and its Superjacent Waters, records of the first meeting, held on 11 August 1952.

167 Ibid.

168 Ibid.

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treatment would have to be given to such area where there were islands belonging to one of the parties situated less than 200 miles away from the maritime projection of the other party. And this was so done.

During the debates in the first meeting of the Juridical Commission of the Conference, presided over the Peruvian delegate Alberto Ulloa, the parties accepted, without much discussion, the proposal of Ecuador to amend the text.

The suggested amendment was accepted and the delegates of Peru and Chile, Alberto Ulloa and Luis David Cruz Ocampo, correspondingly, were charged with the final drafting of Article 3.

At the second meeting of the Juridical Commission, the Peruvian delegate submitted a new wording for Article 3 of the proposal, which now became Article IV for the final version of the Declaration. The text which included the Ecuadorian initiative was drafted by Ulloa with the collaboration of its Chilean colleague, Cruz Ocampo. The new Article reads as follows: In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea.169

The final wording did not include the reference to the 200-mile projection following the border of the coastline, perhaps because it was deemed redundant.

However, this criterion was implicit because otherwise, it would not have been possible to ensure that the three countries would possess 200-nautical-mile maritime zones. The exception of Article IV can only be understood in light of this criterion of projection of the zone following the coastlines.

Hence, Article IV of the Declaration of Santiago establishes a delimitation provision by way of exception for such circumstances where there were islands in the maritime frontier zone of the countries. This is the case of a special circumstance based in the geographical nature whose awareness claimed for the inclusion, by way of exception, of a unique rule applicable only to two countries: Peru and Ecuador.

There are no islands in the Peru-Chile maritime area. This is not only a geographical reality but also a juridical reality, as this is so depicted in the nautical charts published by Chile and internationally recorded. Consequently, the exception set out in Article IV in no event can be applied to the Peru-Chile 169

Ibid.

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maritime boundary. Under no reasonable juridical consideration, it is possible to deduce that this exceptional delimitation clause is applicable to a situation other than the special circumstance of the presence of Ecuadorian islands in the maritime frontier zone with Peru.

To assert, in contradiction with the ordinary language, the context, the object and purpose of the Declaration of Santiago, that Article IV of the Declaration establishes the parallel method to trace the continental maritime boundaries between Peru and Chile is excessive and has no grounds in any of the provisions of the Declaration of Santiago, not even in application of an extensive interpretation.

Taking into account —as has been pointed out— that the object and purpose of the Declaration of Santiago lies in the fact that each country shall have a 200mile constant projection, it could not in any event establish the method of the parallel for the delimitation of the continental sea, given the morphology of the coasts of Peru and Chile, a delimitation through such line would yield an extremely inequitable result, going against the rules of international law prevailing at such time and which, as has been seen, was aimed at delimiting the territorial sea through an equidistant line.

The Legal Advisory Office of the Ministry of Foreign Affairs of Chile, in a report requested by the Frontiers Department of such Ministry in 1964, recognizes that the Declaration of Santiago “is not an express agreement to determine the lateral division of their corresponding territorial seas.” The report actually reads as follows: The Declaration on the Maritime Zone that Chile, Peru, and Ecuador signed on 18 August 1952 contains a provision which, despite not being an express agreement on the determination of the lateral division of the corresponding territorial seas, is based upon the understanding that the division matches the parallel which passes through the point at which the land boundary that reaches the sea […]170.

The Legal Advisory Office recognizes that the Declaration of Santiago does not establish any boundary or delimitation provision whatsoever between the two countries; however, it argues that tacitly implies that the maritime boundary corresponds to the parallel that runs through the convergence point of the land boundary with the sea. Nothing in the Declaration of Santiago would legitimately warrant such conclusion. There is no phrase or reference in that sense. The Ministry of Foreign Affairs of Chile, Legal Advisory, Report No. 138, “El Deslinde Marítimo entre Perú y Chile”. In: Llanos Mansilla, Hugo, Teoría y práctica del Derecho Internacional Público, Vol. II, Santiago, Chile, Editorial Libromar, 1977, pp. 125-167.

170

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Declaration of Santiago, as has been seen, does not assume any reference to the point where the land boundary reaches the sea in connection with the continental maritime boundaries.

The Legal Advisory Office, aware that the Declaration of Santiago has no room for any interpretation in that sense, tried to support this assertion with a sui generis reasoning: the alleged and implausible existence of an understanding prior to the Declaration of Santiago which would have established the maritime boundary between the two countries through the parallel of latitude passing through the terminus of the land boundary: It has already been observed that these three countries did not agree therein (by the Declaration of Santiago) that thereinafter the parallel of latitude would divide their territorial seas, but instead they recognized that this was a pre-existing situation […]. With the information available, this Legal Advisory Office has not been able to determine when and how such agreement was achieved. It is worth, however, presuming that it predates and conditions the signing of the Declaration on the Maritime Zone of 18 August 1952.171

The thesis of an agreement prior to the Declaration of Santiago, in which the maritime boundary had been established through the parallel is self defeated, because no such instrument has ever been identified. And this cannot be otherwise, because the documentary evidence and institutional memory of the Ministry of Foreign Affairs of Chile itself prove it never existed. The Legal Advisory Office itself has so recognized by pointing out that it could not find in its records the supposed understanding prior to the Declaration of Santiago.

Another argument of the Legal Department of the Ministry of Foreign Affairs of Chile in favor of the thesis of the parallel is to assert that the Government of Chile could not have signed the Declaration of Santiago without previously ensuring the boundary runs through the parallel, because doing so would have meant that the overlap with the Peruvian zone would have been a mutilation of its own projection, something unacceptable to the Government of Chile: Chile could not have agreed to the establishment of a 200-nautical-mile area without previously agreeing that such area would be delimited among the contracting parties through the parallel of the point at which the land boundary reaches the sea, because any other solution would mean that our 200-nauticalmile area would have been curtailed perhaps from Iquique or Pisagua to Arica, and the Peruvian area would have moved southward from such port, which would have come between the waters subject to our sovereignty and the high seas.172 Ibid., p. 128 Ministry of Foreign Affairs of Chile, Legal Report No. 138, 1964 In: Llanos Mansilla, Hugo, op. cit., pp. 468-492.

171 172

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This argument has no legal grounds; it is rather a request of principle of a diplomatic nature which pinpoints, not without reason, that no country would sign an agreement which would ab initio curtail its maritime sovereignty. Yet, this argument is also valid for the other countries signatories to the Declaration of Santiago and obviously for Peru. Just as Chile could not accept an agreement that would curtail its 200-mile zone from Iquique to Arica, it would also be impossible for Peru to accept a line running through the parallel because this would cut off its 200-mile zone from Arequipa to Tacna.

Within the reasoning of the Legal Advisory Office of Chile, it is interesting to notice that such department had a poor understanding of the overlapping issue of the maritime zones of the two countries. Apparently, such department sees such overlapping event as unique or rare from a geographic or legal perspective, something unacceptable for Chile; when in fact this is a material and juridically objective material reality which stems from the 200-mile zone created under the Declaration of Santiago. The overlapping issue is the geographic pre-requisite of a maritime delimitation. If there were no overlapping, there would be no need for any delimitation since each country would determine its boundaries unilaterally.

Nevertheless, what is most significant of the reasoning by the Legal Advisory Office is that it proves that neither country could agree to, in the Declaration of Santiago, a delimitation rule that would curtail their corresponding maritime areas, for this reason, obviously, no provision was included in that sense. It was neither a concern nor a priority of the two countries at the time since they focused on obtaining the outer limit up to 200 miles.

The Chilean jurist and diplomat, Ignacio Llanos Mardones, in his book El Derecho de la Delimitación Marítima en el Pacífico Sudeste, also recognizes that the text under Article IV of the Declaration of Santiago does not establish a delimitation provision for the lateral continental seas (maritime boundary between Peru and Chile), but, at the same time, tries to substantiate the position of his country upon an extensive interpretation of Article IV and in the alleged existence of a regional customary law governing the bilateral relations which, before 1952, would have tacitly recognized the parallel as a delimitation provision.

This is an attempt to complement the weak thesis presented by the Legal Advisory Office of the Ministry of Foreign Affairs of Chile, arguing that the alleged boundary running along the parallel would have been established in an agreement which predates the Declaration of Santiago. Upon confirming that such agreement does not exist, Llanos Mardones tries to find “the previous agreement,” not in a conventional pact but rather in the hypothetical existence of a regional customary law. On this regard, he points out: 114

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A question that surfaces after a first reading of the delimitation clause of the 1952 Declaration is whether or not it shall be applied only on the maritime areas of islands, excluding the maritime areas of the continental territory. A purely textual interpretation would suggest that the delimitation of the maritime areas of the continental territory would not have been considered.173

Llanos acknowledges that the text of Article IV establishes a delimitation provision through the parallel of latitude only for the delimitation in the event of the presence of islands (Peru-Ecuador), but suggests an extensive interpretation to include in such provision the continental maritime boundaries.

This interpretation has no grounds or validity whatsoever. First, because in light of the wording of Article IV there is no doubt that it is an exception given the existence of relevant circumstances, i.e., a special geographic characteristic.

And, through interpretation, it is not possible to apply a rule to a situation which is excluded by the rule itself. Second, because if the spirit of the text had been the application of the exceptional delimitation provision (parallel of latitude) for island and continental delimitation, Article IV would have been drafted under different words and the parties would have directly stated that the island and continental maritime frontiers would be traced through a parallel of latitude.

And Article IV has not so prescribed. This Article establishes an exception to consider a special situation, in accordance with the rules of international law of the time. An exception cannot be assimilated to the rule.

The interpretation of treaties is aimed at determining the willingness of the parties as echoed in its text, and not at a subjective willingness opposing such wording.

It is a matter of identifying the derived willingness contained in the text of the treaty. In this sense, it is independent from any subjective factor. And the parties’ willingness, as has been unequivocally, clearly, and exactly expressed in Article IV, is that for the exceptional case of the existence of islands that with the extension of the maritime area of each country up to 200 nautical miles, which given their location could be included in the sovereignty of a neighboring Country, or whose maritime zone overlaps with the continental maritime zone of the other Party, the delimitation method is hence established in order to ensure that such islands shall remain under the sovereignty of the concerned State so as to prevent any excessive amputation of the continental maritime zone of the other State.

In accordance with the rules of interpretation of treaties, it is not necessary to resort to supplementary means of interpretation for the case of Article IV because its wording is not obscure or ambiguous in any way whatsoever. When a text is sufficiently clear —as has been determined by the International Court 173

Llanos Mardones, Ignacio, op. cit., p. 69.

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of Justice—, there is no need to resort to supplementary means, such as the preparatory works, among others. Hence, in Advisory Opinion on the Conditions for the Admission of a State to the United Nations, the Court pointed out that when the text of a treaty, in a literal sense, is sufficiently clear “…there is no room to move away from the constant jurisprudence of the International Court of Justice, in virtue of which there is no point in resorting to preparatory work.”174 The case before us, as has already been noted, the literal text of Article IV is clear on the use of common language and its grammar structure. There is no room for doubts; nor is there room for the existence of more than one interpretation.

Consequently, the exception contained in Article IV for island territories cannot be applied by “extension” to the continental territory, as suggested by Llanos Mardones, because the delimitation rule of the parallel for the island territories is the exception to the general rule (the provisions of international law in force) applied to continental maritime boundaries.

However, if we were to resort to the supplementary means of interpretation, they would confirm the spirit of Article IV through an authentic interpretation in light of the common and regular use of the language and its agreement with the purpose and goal of the treaty. The preparatory works for the drafting of the Declaration of Santiago confirm it, as recorded in the intervention by the delegate of Ecuador in the 1952 Conference. As has already been stated, the representative of Ecuador, Mr. Fernandez, asked for the amendment of the original Article III which established an exception to include a delimitation provision for the islands belonging to one of the States (Ecuador) which, given their proximity to the 200 nautical mile projection of a neighboring State (Peru), would require a delimitation method so as to keep them under the sovereignty of Ecuador or not to curtail too much the maritime zone of the islands. This is the source of the final drafting of Article IV. Regarding the argument of the existence of a hypothetical regional customary law that would have established the parallel line as the delimitation method before 1952, there are no objective elements to support such position.

At the time, as it has been noted, there was not even a general customary law.

Nevertheless, in practice the trend of the States and the prevailing opinio juris favored the equidistant line. Hence, for example, the provisions set out on the delimitation of the territorial sea between adjacent States in Resolution III of the Second Congress of the Hispanic-Portuguese-American-Philippine Institute of 174 Cf. ICJ, Advisory Proceeding of 3 March 1950 on the Competence of the General Assembly for the Admission of a member State to the United Nations.

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1953, as well as the provisions set forth in the Principles of Mexico on the Legal System of the Sea of 1956, prompt, as has been already seen, an equidistant line for the delimitation of the territorial sea at the time.

The inexistence of such alleged customary law is so obvious that the Decree of 23 June 1947 itself, in virtue of which Chile claimed 200-nautical-mile sea of sovereignty, did not establish any delimitation rule whatsoever. On the contrary, the phrase which points out to the extension of the maritime zone comprises the area inside the perimeter of consisting of the coasts and a mathematical parallel line in the sea necessarily implies the overlapping of the maritime areas of Peru and Chile175.

On this regard, Agüero affirms, quite rightly, that the system set out by the Official Declaration of 23 June 1947 to determine the surrounding area claimed by Chile “[…] would imply an overlap of its northern end with the maritime area belonging to Peru if the same principle were applied for the tracing thereof from the coasts at a mathematical parallel line of 200 nautical miles over the sea.”176 The hypothetical delimitation through the parallel, as is Chile’s claim and contrary to the provisions set forth by the international law of the time and currently in force, would result in a solution devoid of any equity whatsoever.

The morphological characteristics of the coasts of Peru and Chile are such that together they make up an angle of approximately 120°. In the hypothesis of a delimitation following the parallel, Chile would hence have an angle of 90° between such line and its coast, while Peru would have an angle of 30°. This would mean that the hypothetical application of the parallel as a delimitation method would result in the mutilation of the maritime zone of Peru of approximately 67,139.4 km2. This would mean that Peru would not have 200 miles along around 370 km of its coast, with its territorial sea, contiguous zone, continental shelf, and exclusive economic zone projection mutilated. Such projections of the sea of Peru in this large coastline would mean that Camaná (Arequipa) would have 120 nautical miles, while Punta Islay (Arequipa) 92 nautical miles, Punta Coles (Moquegua) 46 nautical miles, Punta Sama (Tacna) 27 nautical miles, Vila Vila (Tacna) 19 nautical miles, Santa Rosa (Tacna) 1.2 nautical miles, and the point The corresponding portion of the statement made on 23 June 1947 is the following: “The demarcation of zones for the protection of maritime hunting and fishing in the continental and island seas which are under the oversight of the Government of Chile shall be carried out, in virtue of such declaration of sovereignty (…) on the entire sea included inside the perimeter formed by the coast, with a mathematical parallel projected on the sea to 200 nautical miles outward from Chilean continental coast. This demarcation shall be measured in the case of Chilean islands by identifying the sea zone contiguous to the coasts thereof, projected in parallel thereto, two hundred nautical miles out from their outline.” Cf. Official Statement by the President of the Republic of Chile, 23 June 1947.

176 Agüero, Marisol, Consideraciones para la delimitación marítima del Perú, Lima, Fondo Editorial del Congreso del Perú, 2001, p. 316.

175

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where the common land boundary reaches the sea, 0 nautical miles. This would further deprive the peoples of Peru from a significant maritime area which is part of its economy and possibilities of achieving food safety.

This unwarranted hypothesis would not make it possible to enforce the Declaration of Santiago because such instrument would contain a rule which would impede it from achieving its purpose and goal.

Chile’s extreme claim would leave Peru with a dry spot in its coastal border, which is contrary to the essential principle that the “land prevails over sea” and that under such title any coastal State possesses sovereignty and jurisdiction over the sea adjacent to its coasts.

The application of the good faith principle (bona fide) states that it is a matter not only of abiding by the provisions of the treaty with a sound intention but also of following them so as to ensure its useful purpose, i.e., the realization of its purpose and goal. In addition, good faith prohibits, contrario sensu, for one of the parties to carry out acts that could jeopardize or impede the achievement of the goals and objectives of the treaty. The obligation of States to refrain from carrying out such acts has been pinpointed by international jurisprudence and is regulated by Article 18 of the Vienna Convention on the Law of Treaties. The ICJ, on the other hand, in case concerning military and paramilitary in Nicaragua, Judgment of 27 June 1986, rendered a judgment in that sense177.

In short, the Declaration of Santiago does not establish, not even by way of extensive interpretation, any maritime boundary or delimitation clause whatsoever between Peru and Chile. The border areas of the maritime areas of the two countries overlap. This overlap should be settled in accordance with customary international law, through an equitable agreement based on reciprocity. The Government of Chile so proclaimed in the 1947 Declaration mentioned earlier: This Declaration of sovereignty does not deny similar legal rights of other countries based on reciprocity nor does it affect the rights of freedom to navigate.178

Nevertheless, given the urgent priorities of the joint diplomatic actions to achieve the recognition of their 200-nautical-mile thesis, the two countries did not commence negotiations on their lateral boundaries nor did a dispute arise since neither of them asserted unilateral claims until 2000.

177 178

Cf. ICJ, Yearbook, 1984-1985, pp. 135-147.

Government of Chile, Declaración Oficial Presidencial, 23 June 1947.

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3. Agreement Relating to a Special Maritime Frontier Zone of 4 December 1954 The legal nature of the Agreement signed by Peru, Chile, and Ecuador on 4 December 1954 179 is an international instrument aimed at exempting from penalties small artisanal vessels sailing in and from the maritime zones on either country by accident.

This is an agreement which establishes a tolerance zone for the activities of artisanal fishing vessels in the maritime areas on the border between the two countries.

This is a tolerance area in which small vessels can carry out their fishing activities without being fined, arrested, or penalized therefore from one country or the other as long as they accidentally appear in such area; this has the nature of a practical and provisional arrangement aimed at preventing the application of fines and penalties to small artisan vessels within a given area off the common border zone.

The tolerance or permission zone begins as from 12 miles outward of the maritime zone of each country and its boundaries are 10 miles to the north and south of the parallel which crosses its land boundary. It excludes the territorial sea and it was agreed that the tolerance or neutral zone would begin after the 12 miles. Fishing within these 12 miles adjacent to the coast, which are not part of the tolerance or neutral zone, is reserved exclusively for the activity of fishing vessels of each country.

The text does not say anything in connection with the outer limit of the zone, but, since it is related to small artisanal vessels, it necessarily had to be constrained to the maritime area in which the artisanal fishing vessels could perform their activities or to the visibility threshold of small vessels. There are some judgment elements that would allow thinking that the zone would extend beyond the 12 nautical miles reserved exclusively to national fishermen of each country; specially, the reference made by a technical report on the visibility that small vessels would have regarding the projected signals of the beacons that the two countries agreed to install in 1968. This report shows that the visibility was up to 15 miles outward from the coast: c) Lanterns for night identification would be electric, sparkling, with standalone energy source, whose visibility features and approximated scope would be of 15 miles, with a lighting over the entire horizon and with a light green color.180

Evidently, this is just one indicator that the outer limit of the tolerance area had not been specified, which should correspond to the navigation capacity of artisanal vessels of the time. To have an idea of the meaning of such vessels 179 180

Cf. Agreement relating to a Special Maritime Frontier Zone, 4 December 1954.

Report by the technical delegations of Peru and Chile, 27 April 1968.

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in 1954 in Peru, whose fishing development was more advanced than that of Chile, we can mention the following quote on the fishing fleet at the end of the 40’s: “At the time, around 3,600 artisanal vessels, of which only 180 were motor boats, sailed in Peruvian sea. Yet, companies offering marine machine and fishing equipment were established, such as Wilbur-Ellis.”181 As pointed out in paragraph one of the preamble of the Convention, its origin rests in the confirmation that: […] experience has shown that innocent and inadvertent violations of the maritime frontier between adjacent States occur frequently because small vessels manned by crews with insufficient knowledge of navigation or not equipped with the necessary instruments have difficulty in determining accurately their position on the high seas.”182 Preamble paragraph two sets out another of the additional reasons for its signing, upon recalling that “(…) the application of penalties in such cases always produces ill-feeling in the fishermen and friction between the countries concerned, which may affect adversely the spirit of cooperation and unity which should at all times prevail among the countries signatories to the instruments signed at Santiago.”183 Preamble paragraph three expresses the parties’ willingness to exempt small fishermen from such penalties and, hence, eliminate the elements of friction which constantly occurred: “(…) it is desirable to avoid the occurrence of such unintentional infringements, the consequences of which affect principally the fishermen.”184 In its operative section, the Agreement established, as has already been stated, an exemption to the penalties or a neutral area starting from the 12 miles of sea adjacent to the coasts in which the small vessels deprived of nautical instruments which accidentally sail into the maritime zone of the other country are exempted from the corresponding penalties: FIRST: A special zone is hereby established, at a distance of 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the parallel which constitutes the maritime boundary between the two countries.185

The drafting of this Article has led to different interpretations thereof because of the phrase “(…) which constitutes the maritime boundary between the two countries.”

Trillo, Pedro and Tord, Luis E., “El Nacimiento de una Industria.” In: Libro de oro de la pesquería peruana, Lima, Sociedad Nacional de Pesquería, 2003, p. 94.

182 Agreement relating to a Special Maritime Frontier Zone, 4 December 1954, para. one of the preamble.

183 Ibid., para. two of the preamble.

184 Ibid., para. three of the preamble.

185 Ibid., para. two of the preamble.

181

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For the Government of Chile this phrase would have established a maritime boundary between the two countries running along parallel 21°18’00”. The phrase does not literally establish any boundary whatsoever, but instead presupposes one and, as we will see, this reference is related only to the maritime boundary between Peru and Ecuador.

The interpretation of that phrase, in accordance with the rules of international law, clearly indicates that the text does not establish a maritime boundary. It does not say “to establish between Chile and Peru a maritime boundary between its continental seas” nor does it contain any other like phrase, in the simple present tense or in any other verb tense implying the adoption of a decision or the establishment of an agreement. Consequently, it does not include a delimitation provision either, or the starting point of the alleged boundary or its tracing. The phrase has been written in a verb tense known as historic present, which implies the previous existence of a boundary, but the agreement itself does not establish any boundary whatsoever.

As has been seen, such previous existence is untrue for the Peru and Chile maritime boundary. Consequently, since the agreement cannot refer to a boundary that is inexistent, since we would be in front of an absurdity, it is obvious that this is an imperfect and defective drafting, whose sense and scope need not be found through a non-literal interpretation of the phrase but rather through the context of the object and the purpose of the agreement, as well as the documentation used to draft it.

The purpose of the Convention, whose provisions are articulated in only four operative articles, is only to establish a special zone sanctions free for small vessels manned by crews with insufficient knowledge of navigation or not equipped with the necessary instruments. This provision is included in the abovementioned Article one.

Its purpose was to prevent considering as infringement the presence of small vessels operating in the neutral zone which innocently and inadvertently work in the such area, exempt crews from fines and penalties, and protect fishing activities within the 12 miles exclusively for fishermen of either country. This has been established clearly in Articles Two and Three of the Agreement: SECOND: The accidental presence in the said zone of a vessel of either of the adjacent countries, which is a vessel of the nature described in the paragraph beginning with the words "Experience has shown" in the preamble hereto, shall not be considered to be a violation of the waters of the maritime zone, though this provision shall not be construed as recognizing any right to engage, with deliberate intent, in hunting or fishing in the said special zone.

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THIRD: Fishing or hunting within the zone of 12 nautical miles from the coast shall be reserved exclusively to the nationals of each country.186

The last Article of the convention is very important to determine the connection of this instrument with the Declaration of Santiago, because it contains an express decision and commitment of the parties through which the parties agree not to construe any of the provisions of the Convention as susceptible to amend or repeal the provisions of the Declaration of Santiago. This is decisive because in the unwarranted hypothesis that the convention were to contain a delimitation rule, such provision would be considered null and void by operation of Article Four because it would amend the provisions of the Declaration of Santiago, and this is forbidden by the 1954 Convention.

The drafting of such Article is as follows: All the provisions of this Agreement shall be deemed to be an integral and supplementary part of, and not in any way to abrogate, the resolutions and decisions adopted at the Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific, held in Santiago de Chile in August 1952.187

A first conclusion is that the Convention does not establish maritime boundaries between Peru and Chile. This reality is recognized by the Chilean jurist Ignacio Llanos, who points out: Strictly speaking, the Agreement relating to a Special Maritime Frontier Zone cannot be characterized as a boundary agreement. Since its own principle was to establish a special zone for small fishing vessels of the three States Party it is possible to consider that this is one of the agreements that cannot exist without any reference to a boundary agreement, usually prior.188

With the confirmation that the 1954 Convention does not establish the maritime boundary between the two countries, the author of this book wonders whether such prior agreement is the Declaration of Santiago, and recognizing the doubts about its scope, prefers to find a prior hypothetical agreement in the pre-existence of a regional custom that at the time —before 1952— as has also been reviewed, did not exist.

Report 138 of the Legal Department of the Government of Chile of September 1960 is consistent with this opinion, in the sense that the Declaration of Santiago does not fix a maritime boundary.

Ibid., Articles 2 and 3.

Ibid., Article 4.

188 Llanos Mardones, Ignacio, op. cit., p. 170 186 187

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Neither does this Declaration imply a pact by virtue of which the parties would have set their maritime division. Such declaration only reaffirms emphatically and positively a pre-existing fact […]189.

A second conclusion is that the 1954 Convention measures the exemption zone of 20 miles wide, 10 miles to either side from the parallel which crosses Boundary Marker No. 1 on the land boundary. This parallel is taken conventionally as a referent to establish the special zone, but any other referent could have been used.

The exact intention was: to use the parallel on the land boundary as a referent to establish the 10 nautical miles on either side of the configuration in the special zone of exemption of penalties. This has no relation with the jurisdictional maritime boundary, but with the determination of the perimeters of the special zone. The Convention at no time establishes any maritime boundary of the national jurisdictions of either State.

Certainly, a third conclusion is that the drafting of Article 1 includes an imperfection and ambiguity when stating the “parallel which constitutes the maritime boundary between the two countries [emphasis added by the author]”.

For this reason, it is necessary to apply a systematic interpretation of the norm, taking into account the purpose, goal, and context of the agreement, as prescribed in the Vienna Convention on the Law of Treaties.

It has been noted that the objective of the convention is clear and defined: to establish a zone exempt from penalties. Also, its goal is exact: not to consider as violations of the waters of the corresponding maritime zones, the innocent and inadvertent presence of small vessels of either country in the special zone created by the agreement, as well as prevent penalties and fines to artisanal fishermen.

The context in which this declaration was prepared and negotiated was during the Second Meeting of the Standing Committee of the Conference on the Exploitation and Conservation of Maritime Resources of the South Pacific, gathered in Santiago Chile on 8 October 1954. The rules of procedure for this conference were the same as the ones of the 1952 Conference, which approved the Declaration of Santiago, whose text does not include any reference to the establishment of maritime boundaries. The purpose of the two conferences, as per Article 1 of the rules of procedure, was “(…) to study and settle any problem related to the exploitation and conservation of the maritime resources of the South Pacific.”190 As a logical conclusion, the agenda only included topics related to cooperation and defense of the principles contained in the 1952 Declaration of Santiago.

Legal Advisory of the Government of Chile, Dicatamen número 138, September 1960, p. 127.

Rules of Procedure of the Conference on the Exploitation and Conservation of Maritime Resources, Article 1.

189 190

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The subsequent resolutions, proposals, and recommendations approved by the 1954 Conference have that same nature: supplemental recommendation on the declaration of sovereignty over the 200-nautical-mile zone, resolution on the annual regular meeting of the Permanent Commission; recommendation for the establishment of a neutral zone for fishing and hunting in the maritime frontier of neighboring States, and recommendation for the granting of taxing, exchange, and credit facilities in favor of maritime fishing and whaling industrial activities. There is no reference to the determination of maritime boundaries, as was the case of the first Conference in 1952.

Throughout the second session, eleven recommendations were approved in connection with the cooperation and coordination of policies for the defense of the 200 nautical miles. Recommendation VII proposed the establishment of a neutral zone for fishing and hunting in the maritime frontier of neighboring States. The text of such recommendation is meaningful and important for the interpretation of Article 1 of the Convention, because it consists of the first drafting of such text and because it shines light on why the expression “the parallel which constitutes the maritime boundary between the two countries” was used.

The recommendation comprises three preamble paragraphs and three operative ones. The first two preamble paragraphs describe the problem or situation identified as inconvenient by Peru, Chile, and Ecuador and to which the parties wished to agree: First, the fact that “experience has shown that innocent and inadvertent violations of the maritime frontier between neighboring States occur frequently because small vessels manned by crews with insufficient knowledge of navigation or not equipped with the necessary instruments have difficulty in determining accurately their position on the high seas”191.

Second, “The application of penalties in such cases always produces ill-feeling in the fishermen and friction between the countries concerned, which may affect adversely the spirit of cooperation and unity which should at all times prevail among the countries signatories to the instruments signed at Santiago.”192 These two provisions are clear with regard to the purpose and willingness of the parties regarding the nature and scope of the neutral zone. The reference to maritime frontier, as used in all documentation at the time, implies the concept of frontier zone and not that of lineal frontier.

191 Final Minutes of the second meeting of the Standing Committee of Conference on the Exploitation and Conservation of Maritime Resources of the South Pacific; recommendation for the establishment of the neutral fishing and hunting zone in the maritime frontier of neighbor countries. Santiago de Chile, 1954.

192 Ibid.

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The first operative paragraph, direct antecedent to Article 1 of the Convention, is extremely important for the interpretation thereof: To create a neutral zone as from the twelve nautical miles from the coast, 10 miles wide in each side of the parallel that runs through the point of the coasts which pinpoint the boundary between the two countries.193

The willingness to establish as referent 10 miles width on either side of the “the parallel that runs through the point of the coasts which pinpoint the boundary between the two countries” is straightforward. In the expression “(…) the parallel that runs through the point of the coasts which pinpoint the boundary between the two countries,” the word “boundary” unequivocally refers to the land boundary.

The original wording was neither ambiguous nor imperfect and did not imply the maritime boundary. It is under these terms that it was submitted to the consideration of Commission I, in charge of negotiating the text, along with other proposals, among which was the proposal for the Supplementary Convention of the Declaration of Sovereignty over the 200-Nautical-Mile Maritime Zone.

When discussing this last proposal, the delegate of Ecuador, always concerned by the situation of the Ecuadorian islands in the maritime frontier zone with Peru, insisted that the provision of Article IV of the Declaration of Santiago be included in the text of the supplementary convention. The minutes of such session record Ecuador’s concern as follows: Mr. Salvador Lara, Delegate of Ecuador, proposes including in this Convention a supplementary article to clarify the concept of the dividing line of the jurisdictional sea which has already been presented in the Conference of Santiago; nevertheless, it is worth including herein. Mr. LLOSA (Peru) and CRUZ OCAMPO (Chile) believe that Article 4 of the Declaration of Santiago is quite clear and there is no need for any further presentation [emphasis added by the author]. Since the delegate of Ecuador insists on his belief that it is necessary to include in this Convention a declaration in that sense, given that Article 4 of the Declaration of Santiago is aimed at establishing the principle of water delimitations regarding the islands [emphasis added by the author], Mr. CHAIR, asked the Delegate of Ecuador whether he would find acceptable that instead of a new article his exact word be recorded in the Minutes.194

This was so decided. It is obvious that the concern of the delegate of Ecuador was the same one he had proposed two years earlier during the negotiation of the Declaration of Santiago concerning the situation of the islands belonging to 193 194

Ibid.

Ibid.

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his country in connection with the 200-mile projection of the Peruvian maritime zone. The Minute is unequivocal as it reiterates that “Article 4 of the Declaration of Santiago is aimed at establishing the principle of water delimitations regarding the islands”195. Mr. Cruz Ocampo, delegate of Chile convened to this.

When the proposal for the Convention on a Special Maritime Frontier was submitted to Commission I, Mr. Salvador Lara, delegate of Ecuador, made the same proposal he had made at the time the proposal for the Supplementary Convention of the Declaration of Sovereignty on the 200-Nautical-Mile Zone.

He asked that this concept —which had already been agreed to in the Declaration of Santiago— be included. This proposal was accepted and the parties agreed to include such concept in the new wording of Article 1 of the Convention. Hence, the reference to an exception rule was included in the Declaration of Santiago; such decision established a delimitation provision running through the parallel between Peru and Ecuador. Obviously, this was done through an improper and imperfect drafting of such Article.

This explains why the drafting of Article 1 refers to “the two countries”. What other reasons would the Convention between three countries have to include a provision —of such significance, i.e., the preexistence of a maritime boundary— that nominally referred to “two countries”? If such phrase were to apply to the three signatory countries, Article 1 would have been drafted differently. The following expressions would have been used: “of the signatory countries,” “of the three countries,” or any other like expression.

The wording, as has been stated, is certainly imperfect; yet based on the analysis of the text in light of the context, purpose, and goal of the Convention, as well as taking into account the process for the preparation of the rule, it seems straightforward that the imperfect expression referring to the parallel only repeats the provision set out in Article IV of the Declaration of Santiago; i.e., the exception regarding the delimitation clause through the parallel in the event islands are present —exclusively in the Peru-Ecuador case. This also means that the imperfect wording of Article 1 of the Convention refers to the maritime boundary between “the two countries”, i.e., Peru and Ecuador.

The late renown jurist, Alberto Ulloa, who participated directly in this process as head of the Peru delegation to the first Conference, Chair of the Juridical Commission of the first 1952 Conference, and one of the authors of Article IV of the Declaration of Santiago, confirms this interpretation in his book Derecho Internacional Público, edited in Madrid, in 1957, published only three years after the 195

Ibid.

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negotiation and approval of the 1954 Convention and five after the Declaration of Santiago. In fact, he pointed out as a testimonial, given his direct participation in the process, that: Another Agreement relating to a Special Maritime Frontier Zone establishes a Special Zone starting at the 12 nautical miles off the coast, with 10 miles breath on either side of the parallel which consists on the maritime boundary between two of the signatory countries [emphasis added by the author]196.

A forth conclusion is that the willingness of the parties was to reiterate the safeguard so as to consider the special circumstance consisting of the presence of Ecuadorian islands within 200 nautical miles of the projection of the maritime zone of Peru on the frontier line with Ecuador.

This interpretation is, also, consistent with Article 4 of the Convention itself that stipulates that none of its provisions can amend or eliminate the rules set out in the Declaration of Santiago, among which, obviously, Article 4 regarding the delimitation by exception clause, for the Peru-Ecuador case.

However, even in the unwarranted case that the convention would have, by big mistake, referred to an inexistent delimitation, this could not be considered as an act establishing a boundary that does not exist. As Agßero has pointed out [‌] it is necessary to pinpoint that the fact that a treaty refers to an unreal situation does not mean in any way that by virtue of such agreement the parties have recognized the existence thereof. Just as a treaty which hypothetically deals with the condominium regime of two States over an island whose presence is wrongly assumed does not make such island exist, so too a treaty which mentions as an assumption a specific boundary agreed between two States, would not create such boundary.197

The 1954 Convention did not enter into force until thirteen years after it was executed, i.e., in 1967, when Chile deposited its ratification instrument. Such instrument does not refer to any maritime boundary. Such convention is classified as a legal instrument not because it refers to maritime boundaries, but in light of its purpose and goal; i.e., the establishment of a system to exempt small artisanal vessels from any penalties198. During those thirteen years, between 1952 and 1967, artisanal fishing in the frontier was not governed by any bilateral agreement.

The 1952 Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone, as has been pointed out, are not boundary delimitation Ulloa Sotomayor, Alberto, op. cit., p. 555., para. 646.

AgĂźero, Marisol, op. cit., p. 272.

198 Ministry of Foreign Affairs of Chile, Note Number 20664 addresses to the Secretary General of the Permanent Commission for the South Pacific, 11 October 1977.

196 197

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agreements because they do not consist of any delimitation provision and have not traced any maritime boundary between two countries. An additional evidence of this reality is the fact that the two legal instruments can be fully denounced without any exception whatsoever of all and each one of its clauses. Conversely, boundary treaties, given their nature, are perpetual and cannot be denounced.

Treaties typically include provisions addressing the extinction of their obligations and its denunciation. When this provision does not exist, international law considers that such agreement has perpetual existence, unless the parties have otherwise expressed their intention or that given the nature of the agreement it is possible to denounce the treaty. Hence, the 1969 Vienna Convention on the Law of Treaties, in its Article 56, establishes the rule that: 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.199

Obviously, this norm cannot be applied to boundary treaties because given their own nature they are perpetual and cannot be denounced. Congruently, international law stipulates that any boundary treaty, given the principle of intangibility and stability of boundaries, cannot be subject to any denunciation and that the parties express such willingness ab initio and ipso jure.

Both the 1952 Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone can be denounced if decided to by the parties.

This is an additional piece of evidence showing that they are not boundary treaties nor did they establish any delimitation clause between Peru and Chile. Yet, given their provisional nature —one concerning the claim of the 200-nautical-mile zone and the other the establishment of a special frontier maritime zone in virtue of which small artisanal vessels are exempted from any penalties— such agreements can be denounced by operation of Article 56, paragraph b) of the Vienna Convention. Moreover, they could also be denounced by operation of paragraph a), which establishes as a condition that “it is established that the parties intended to admit the possibility of denunciation or withdrawal”200. The Cf. 1969 Vienna Convention on the Law of Treaties, 23 May 1969, UN. Doc A/CONF.39/27 (1969), 1155 UNTS. 331 Article 56.

200 Ibid.

199

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parties in this case, Peru, Chile, and Ecuador, unequivocally stipulated that their intention was to execute treaties which could be denounced, within the process to draft the rules of the South Pacific System, during the Second Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific.

As has already been explained, the system created and arranged during the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific, held in Santiago between 11 and 19 August 1952. On that occasion the most important decisions were the approval of the Declaration of Santiago and creation of the Permanent Commission’s Conference. The instruments approved during the first conference, called Agreements of Santiago, became constitutive referents of the system; for this reason, the parties agreed that any subsequent treaty, agreement, or declaration should be strictly consistent with and not amend by any way of interpretation, the provisions set forth in the constitutive agreements of the system. Such instruments are: a) The Declaration of Santiago. b) The resolution on the organizational structure of the Permanent Commission of the Conference on the Exploitation and Conservation of Marine Resources of the South Pacific. c) The joint declaration concerning the problems of fishery in the South Pacific. d) The regulations on maritime fishing activities in the waters of the South Pacific.

The petrous provision of protection and intangibility of the provisions of such legal instruments was included in all of the conventions and agreements signed in the Second Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific, held in Lima in December 1954. The agreement of the parties was that no subsequent convention or legal instrument to the Agreements of Santiago should oppose to or amend the provisions contained in such agreements. The intangibility provision was drafted in the following way: All the provisions of this Agreement shall be deemed to be an integral and supplementary part of, and not in any way to abrogate, the resolutions and decisions adopted at the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific, held in Santiago de Chile in August 1952.

This petrous provision was introduced, using the same wording, in all of the conventions approved during the Second Conference on the Exploitation and 129

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Conservation of the Maritime Resources of the South Pacific. It has been included in Article 5 of the Supplementary Convention to the Declaration of Santiago201; Article 9 of the Convention on the Penalties System202; Article 7 of the Convention on Surveillance and Control Measures of the Marine Zones of Signatory Countries203; Article 8 of the Convention on the granting of permits for the exploitation of resources in the South Pacific204; and Article 3 of the Convention on the regular annual meeting of the Permanent Commission for the South Pacific205 and Article 4 of the Agreement relating to a Special Maritime Frontier Zone206.

With regard to this provision, in the Second Meeting of Commission I of the Second Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific, the Secretary of the Permanent Commission, Mr. Ruiz Bourgeois, who had been delegate of Chile to the first Conference (Santiago, Chile, 1952), took the floor when the meeting was debating over the Supplementary Convention to the Declaration of Sovereignty over the 200-nautical-mile zone. Ruiz Bourgeois reminded all delegates and the chairman, Mr. Alfonso Bulnes of Chile, that Article 5 of such Convention, the one related to the petrous provision, was related to Article 6 of the Convention on the Organization of the Permanent Commission, which is part of the 1952 Agreements of Santiago. This Article 6 provided that “any of the parties can denounce this Convention by giving notice to the other parties one full calendar year in advance.”207 Mr. Ruiz Bourgeois pointed out that provision on denunciation, established in Article 6 of the Agreement on the Permanent Commission, is applicable to all of the Agreements signed in Santiago, such as the Declaration of Santiago, and therefore, its validity also covered the other agreements to be signed in Lima during the Second Conference, evidently including the Agreement Relating to the Special Maritime Frontier Zone. The corresponding records of meeting recorded Mr. Ruiz Bourgeois’ intervention, as follows: 201 Cf. Supplementary Convention to the Declaration of Santiago, Art. 5. In: Ministry of Foreign Affairs of Peru, Instrumentos internacionales sobre derecho del mar, Lima, 1971, p. 156.

202 Cf. Convention on Penalties System, Article 9. In: Ibid., p. 158.

203 Cf. Convention on Surveillance and Control Measures of the Maritime Zones of Signatory Countries, Article 7. In: Ibid., pp. 160-161.

204 Cf. Convention on the granting of permits for the exploitation of resources in the South Pacific, Article 8. In: Ibid., p. 162-163.

205 Cf. Convention on the regular annual meeting of the Permanent Commission for the South Pacific, Article 3. In: Ibid., p. 164.

206 Cf. Agreement relating to a Special Maritime Frontier Zone, Article 4. In: Ibid., pp. 165-166.

207 Cf. Second Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific.

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Mr. Ruiz, Secretary to the Permanent Commission clarified that Article 5 of the Agreement under discussion is related to Article 6 of the resolution on the organization of the Permanent Commission which is part of the 1952 Agreements of Santiago. This Article authorizes the parties to denounce the Convention prior notice delivered one year in advance and shall be deemed applicable to the other three Agreements of Santiago, and in virtue of Article 5 of the Supplementary Convention, and the other like articles included in the other Agreements, shall apply to all the Agreements signed in Lima.208

When Mr. Ruiz Bourgois finished, none of the delegates present objected to the interpretation in the sense that, by operation of the petrous provision, all of the agreements approved by the Second Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific, including the Agreement on Relating to the Special Maritime Frontier Zone, like the ones approved two years earlier in Santiago de Chile, would be governed by the denunciation procedure set out in Article 6 of the Agreement on the organization of the Permanent Commission for the South Pacific. The corresponding minutes of the meeting were authorized under such terms.

Hence, it has been demonstrated that the willingness of the parties was to apply to all of the agreements approved during the first and second conferences, including the Declaration of Santiago and the Agreement on the Special Zone, the provision on denunciation set out in Article 6 of the Agreement on the organizational flow chart of the Permanent Commission for the South Pacific.

In the event that the intention or understanding of the delegates to the second conference of the South Pacific had been to consider the 1954 Convention, and before that, the Declaration of Santiago as maritime boundary conventions, the denunciation provision would have been denied or at least would have excluded the corresponding articles.

4. The 1968 Agreement to Build Leading Marks or Beacons to Guide the Small Fishing Vessels in the Special Zone and its Supplementary Documents The Government of Chile refers to and takes into account, in its arguments in favor of the alleged existence of the maritime boundary as supplementary to the 1952 Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone, the documents called “1968 and 1969 Records of Meeting or Acts�.

208

Ibid.

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This name is wrong. It is not exact. Such documents actually consist of technical reports209, second tier papers and of minutes recording the incidents occurred during the field work of a joint delegation of a technical nature.

In the first case, it refers to a report presented by the technical experts of Peru and Chile on 26 April 1968 with the recommendations for the establishment of leading marks or beacons that would allow small fishing vessels in the special zone to find their way. Nothing in such report constitutes a legal obligation between the two States. This document is not an Act, considering its content or form. This is simply a report or memorandum which registers the opinion of technical experts which they submit to their corresponding Governments, strictly addressing the technical characteristics of leading marks or beacons.

The other document is in fact an Act, also of a technical nature, prepared in 22 August 1969 by the Peru-Chile Joint Commission, designated with the mission of verifying the original geographic position of Boundary Marker Number 1 of the common boundary, as well as identify the position of leading marks or beacons that the Governments decided to place. This Act does not establish any legal obligations for the States.

A lot of publicity has been made around these documents although the diplomatic agreement from which they stem has not been publicized. The former are merely technical elements of the latter. This diplomatic agreement -concluded through the exchange of notes on 6 February and 8 March 1968, correspondingly- established the joint decision of Peru and Chile to put up the leading marks, lighthouses, or beacons to guide small fishing vessels sailing in the maritime frontier special zone.

All these documents are based on facts and decisions unrelated to an inexistent willingness of the parties to “materialize the maritime frontier�. An analysis of the documents exchanged between Peru and Chile is categorical in this sense. a) Agreement Concluded through the Exchange of Notes on 6 February and 8 March 1968

This agreement was concluded through the exchange of Notes on 6 February (Peru) and 8 March 1968 (Chile).

The Ministry of Foreign Affairs of Peru on 6 February 1968 sent the Charge d’Affairs of Chile, Jose Oyarzun Gonzalez, Note Number 6-4-9, in which Peru informs Chile that following the conversations held with Ambassador Fabio 209 Report by the representatives of Peru and Chile, Velando Ugarteche, Jorge and Forch Petit, Alejandro 26 April 1968.

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Pio Valdivieso and Colonel Alejandro Garcia, Director of State Boundaries and Boundary Department Head of the Ministry of Foreign Affairs, correspondingly, the Government of Peru considered: […] it is convenient for both countries to build reasonably big leading marks or beacons and visible at a great distance, at the point where the common boundary reaches the sea, close to Boundary Marker Number One.210

The wording of the note is exact and unambiguous. The Ministry of Foreign Affairs of Peru proposed the building of light posts or marks at the point where the common boundary reaches the sea, close to Boundary Marker Number 1 in order to guide small vessels and prevent any fishing incidents. There is no reference to the alleged installation of boundary markers to demark or materialize the maritime boundary, which, furthermore, is technically impossible. Similary, the Peruvian note shows an understanding and explicit reference to a difference between the end point of the land boundary (“at the point where the common boundary reaches the sea”) and the point which by agreement of the parties the leading marks for fishermen would be placed (“close to Boundary Marker Number One”).

The Government of Chile answered positively accepting the proposal made by Peru and repeating its nature and purpose. The answer was sent to the Ministry of Foreign Affairs of Peru through a Note, (J) 6-4/19 of 8 March 1968, addressed to the Ministry of Foreign Affairs of Peru, signed by the Chargé d’Affaires of Chile, Jose Oyarzun Gonzalez, who conveyed Chile’s agreement and conformity with the proposal to place marks to lead fishermen under the following terms: I am honored to answer the Note sent by your Excellency […] dated 6 February 1968 which mentions that based on the talks held in Lima by Peruvian and Chilean frontier and boundary authorities, it was agreed that it was convenient for the two countries to build reasonably big leading marks or beacons and visible at a great distance, at “the point where the common boundary reaches the sea, close to Boundary Marker Number One.” [Emphasis added by the author] On this matter, I would like to inform your Excellency that my Government finds your proposal acceptable so that such meeting of Peruvian and Chilean technical staff be held on Boundary Marker Number One, in the date and time your Excellency finds acceptable […].211

In its Note, the Embassy of Chile accepts all of the terms and using the same wording as the one of the Peruvian proposal which becomes the purpose of the agreement established through such exchange of Notes, i.e.,: 210 211

Ministry of Foreign Affairs of Peru, Note sent to the Embassy of Chile in Lima, 6 February 1968.

Embassy of Chile in Lima, Note sent to the Ministry of Foreign Affairs of Peru, 8 March 1968.

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[…] for the two countries to build reasonably big leading marks or beacons and visible at a great distance, at “the point where the common boundary reaches the sea, close to Boundary Marker Number One.212

None of the Notes sent by the two countries, in which they agree on the purpose and legal nature of the beacons or leading marks, refers to the maritime delimitation, to the materialization of a maritime boundary or the placing of markings to delimit their corresponding sovereignties regarding the adjacent sea.

The legal nature of the agreement stems from the mentioned exchange of Notes, regarding the initiative to build leading marks, beacons, or lighthouses to guide artisanal fishermen to prevent continuous incidents from either Party. The purpose of the agreement is to build the mentioned markers close to the point where the land boundary reaches the sea, specifically in the vicinity of Boundary Marker Number 1.

From the exchange of notes, it is possible to affirm that the two parties had clear certainty on the starting point of the maritime boundary (“the point where the common boundary reaches the sea”, written in exactly the same words in both the Peruvian Note and the Chilean Note), as well as the point where the leading marks should be placed (“close to Boundary Marker Number One”).

Peru’s express intention and decision was to build beacons to help guide artisanal vessels. This determination is clearly included in the communications sent to the Government of Chile. Such communications clearly identify the land boundary as the point from which the leading marks would be built to guide fishermen: “(…) for the two countries to build reasonably big leading marks or beacons and visible at a great distance, at “the point where the common boundary reaches the sea, close to Boundary Marker Number One.” The terms of the agreement are absolutely consistent with the preceding instruments upon which they were convened. On 22 December 1964, the Ambassador of Peru in Santiago delivered to the Director General of the Ministry of Foreign Affairs of Chile a detailed list of the Chilean fishing vessels which were carrying out irregular fishing activities in the coasts of Peru. Such Communication also announced that in the future Peruvian authorities would capture and penalize infringers213.

On 26 May 1965, the Embassy of Peru submitted another memorandum in which it expressed “the vivid concern of the Government of Peru for continuous Embassy of Chile in Lima, Note J) 6-4/19 sent to the Ministry of Foreign Affairs of Peru; Note number 81 Embassy of Chile, 8 March 1968, para. 1.

213 Embassy of Peru in Santiago, Chile, Memorandum 22 December 1964.

212

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incursions into its sea of Chilean fishing vessels.”214 Also, such communication denounced new events of violation of Peruvian territorial waters on 27 April 1965 by five Chilean vessels which were spotted when they were carrying out illegal fishing activities in front of the beach La Yarada.

In that same diplomatic Note, the Government of Peru, through its Ambassador in Santiago, proposed to the Government of Chile: […] as a means to prevent events like this from happening again, it is convenient for both countries to build, on their respective coasts, one beacon each, which shall be situated no more than five kilometers away from the frontier zone.

And, further mentioned that: […] in the event this proposal were accepted by the Chilean Government, technical talks began so as to complete it as soon as possible.215

On 3 December 1965, the Ambassador of Peru once again made a similar requests; he expressed that the repeated concern of his Government “regarding the actions committed by vessels from a country which shares the same position to defend the maritime zone.”216 In 1965, for the first time, this Note shows Peru’s idea of placing at around five kilometers off the boundary line (land boundary) two leading marks to help solve the annoying situation of continuous violations by Chilean fishing vessels along Peru’s coastline.

Once the agreement to place the beacons or leading marks for small vessels to find their way was reached, the two Ministries of Foreign Affairs began informal consultations on the implementation of such agreement. To this end, they decided to send a technical mission to the site so that it would perform an in loco inspection.

Through informal consultations between the two Ministries of Foreign Affairs, it was decided that such beacons, leading marks, or lighthouses be built in both territories, in the vicinity of the Boundary Marker Number 1 of the land boundary.

Reference to Boundary Marker No. 1 is merely conventional. Any other point could have been placed, but Boundary Marker No. 1 was the most practical solution, because it was the landmark closest to the terminus of the land boundary on the arc which meets the seashore. Another reason was that such milestone was the closest one to the point where the boundary reaches the sea; it had a position which had been established by the 1930 Joint Commission of Limits.

Embassy of Peru in Santiago, Chile, Memorandum 26 May 1965.

Ibid.

216 Embassy of Peru in Santiago de Chile, Memorandum 3 December 1965.

214 215

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This made it easier; given that it was simply a matter of confirming the position of the milestone, comparing it with the coordinates set out in the minutes of the demarcation commission. This was absolutely necessary because there was news that the remains of the milestone, which had been destroyed, could be laying around places different from their original position.

In order to certify the position of Boundary Marker Number 1, the two Governments designated the corresponding technical staff to confirm its position on site, in accordance with the coordinates of latitude and longitude set out in the minutes of the 1930 Joint Commission of Limits. The technical teams were designated under the leadership of Alejandro Forch Petit, Eng. for Chile and Minister Jorge Velando Ugarteche, for Peru. b) Instructions to the Technical Experts in Charge of Locating the Position of Boundary Marker Number 1 of the Land Boundary and Studying the Feasibility of Building Marks, Beacons, or Lighthouses to Guide Small Fishing Vessels

Both Governments prepared and delivered their technical experts identical instructions in order to locate the position of Boundary Marker Number 1 and to study the feasibility of building leading marks on the ground.

The instructions to Peruvian technical experts, dated 15 April 1968, unequivocally pinpoints that the purpose of the mission was:

[…] to study the placement of leading marks to indicate the location of Boundary Marker Number One of such frontier.217

The purpose of the mission of both technical commissions was not to trace an alleged maritime boundary. Its purpose was only and exclusively to establish the location of Boundary Marker Number 1 on the land boundary so as to subsequently build in its vicinity the towers or marks to guide small fishing vessels, pointing out its location. There is no reference to the tracing of a maritime boundary, which is a matter totally different from the nature and purpose of the decision taken by the Governments.

Such specific instructions fully ratify this understanding and leave no room for interpretation: 1. To study on the ground, along with the Chilean delegation, the places which would be most suitable to build leading marks, visible from the sea, aimed at indicating the location of Boundary Marker Number 1, called “seashore”.

Instructions for the delegation of Peru that would meet on the Peru-Chile boundary with the delegation of Chile to study the placement of leading marks to indicate the position of Boundary Marker Number 1 of such boundary, Lima, 15 April 1968.

217

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2. To agree on the signaling system to be placed on the beacons, which will consist on studies that could take the form of towers, frames, or columns.

3. To agree on a maintenance and preservation system of such beacons and signals.

4. The delegation of Peru proposed the following: a) The placement of two beacons or leading marks on the imaginary line which materializes the parallel which runs through Boundary Marker Number One, called “seashore”. b) That such structures should contain, in addition to the marks for daytime identification, lights whose visibility is no less than five miles, for night time identification; and radar reflectors conveniently arrange, for location activities on a permanent basis […].218

It is important to specify that the item 4 of the instructions indicates that the leading marks or beacons shall be placed on an imaginary line on the ground, which materializes the parallel that runs through Boundary Marker Number 1.

All parallel is materialized through an imaginary line. In this case, for beacons to be within range, they both had to be placed on the imaginary line, on the ground.

This concept is absolutely foreign and different from the materialization of a jurisdictional maritime boundary between the two States. It was simply a matter of placing the beacons along the imaginary line of the parallel of Boundary Marker Number 1 so that the signals projected in that direction can be aligned and guide artisanal vessels on what position they have at a given time. c) The Report Dated 26 April 1968 Prepared by the Technical Commissions that Studied on the Ground the Feasibility of Placing Beacons or Leading Marks

On 26 April 1968, the technical experts got together on the ground in order to study the placement of leading marks for fishing activities. After the field work, the delegations of experts signed a joint memorandum or report. The Government of Chile wrongly called this report the “Acta de 1968” (“1968 Minutes” or “1968 Records”). This name is wrong because it is merely a brief summary of the recommendations addressed to the Governments. This report includes the following paragraph: […] they agreed to prepare this document which is related to the mission they have been given by their corresponding Governments in order to study on the ground the placement of leading marks visible from the sea, which materialize the parallel of the maritime boundary which starts at Boundary Marker Number One.219 218 219

Ibid.

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For the first time, we see the expression “which materialize the parallel of the maritime boundary which starts at Boundary Marker Number One.” This is an erroneous and ambiguous and erroneous wording of the technical experts who “(…) agreed to prepare this document which is related to the mission they have been given by their corresponding Governments.” As has been discussed, the 1968 agreement, which set out the mission of the technical staff and the instructions they received does not refer to the “materialization of the maritime boundary.” This agreement deals with the “placement of two beacons or leading marks on the imaginary line which is materialized through the parallel which runs through Boundary Marker Number One, called “seashore”.

Within this context and the purpose of the 1968 agreement and the instructions received by the technical experts, it is clear that such expression refers to the placement of beacons or leading marks “over the imaginary line which materializes through the parallel which runs through Boundary Marker Number One.” The technical experts refer to this purpose of their mission with an expressly improper and ambiguous wording. The goal of their technical mission was to place beacons on a given spot; such spot is the imaginary line which materializes the parallel which runs through Boundary Marker Number One in such a way that the beacons —one on Peruvian territory and the other on Chilean territory— were align with the imaginary line which materializes the parallel which runs through Boundary Marker Number One. To give another interpretation to such expression would be contrary to the object and purpose of the mission of the technical experts. Moreover, they had no power or authority to express opinions on the maritime boundary on behalf of their Governments.

Finally, as has been discussed, this is a technical document that does not create any right or obligation and which includes a briefing by the technical experts —in this case, written in an ambiguous and equivocal manner, but leaves no doubt when compared to the mission they were entrusted with and with the agreement signed by the two Governments which established the purpose of this mission.

The phrase “which materialize the parallel of the maritime boundary which starts at Boundary Marker Number One” indicates that it is the parallel which starts at Boundary Marker Number 1 which is going to be materialized. This does not mean that the boundary starts at Boundary Marker Number One. This grammatical interpretation is consistent with the object and purpose of the agreement. The inverse interpretation, in the sense that the maritime boundary of leading marks for fishing vessels, 26 April 1968.

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starts at Boundary Marker Number 1 is not consistent with the grammatical expression and is contrary to the object and purpose of the agreement. As has been pointed out, the rules for the interpretation of treaties mandate that when there are two interpretations of the same text, the one to be followed is the one that is consistent with the object and purpose of the agreement. This has been confirmed by the International Court of Justice.

The party’s intention was to materialize the parallel starting at Boundary Marker No. 1 in a consistent and concordant with the Notes which originated the agreement and with the instructions themselves issued by the delegation of Peru (“Placement of two beacons or leading marks on the imaginary line which materializes the parallel which runs through Boundary Marker Number One, called “seashore”). In addition, the expression “maritime boundary” is not used as a line for the delimitation of sovereignty —a subject unrelated to the understanding of placing leading marks to prevent incidents with fishing vessels.

Instead it is used as frontier zone, or frontier area, in the sense of the special maritime frontier area agreed upon in the 1954 Convention. This is consistent if we consider that the technical experts had to bear in mind the area of allowance for the activities of small fishing vessels.

After a systematic interpretation of the Notes exchanged by both countries, the instructions of the delegation of Peru and the subject matter or purpose of the report we are analyzing, it becomes obvious that the task assigned to the delegations, as pointed out in the instructions and in the Notes, was to materialize the parallel passing through Boundary Marker Number 1 as a reference element to install and align the leading marks or beacons to be built in each of the two territories near the sea. d) Minutes Recording the Outcome of the Technical Works on the Ground

This interpretation is confirmed with the text itself of the minutes reporting on the completion of the works: Minutes (Acta) of 22 August 1969.

These minutes, once again, repeat the purpose of the technical delegations, i.e., to confirm the position of Boundary Marker No. 1 on the common (land) boundary, a conventional point of such boundary, the closest one to the sea in order to determine, from such point of reference, the location of the leading marks to be built to guide, provisionally, the activities of small fishing vessels.

Nevertheless, the expression “to indicate the maritime boundary” is still used.

In this case such expression cannot refer but to the special maritime zone for exemption of penalties on small fishing vessels. In other words, the reference line used to project 10 miles towards the south and 10 miles towards the north and thus determine the perimeter of the special exemption zone.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

The undersigned representatives of Peru and Chile designated by their corresponding Governments to verify the original geographic position of concrete Boundary Marker number One (No. 1) of the common boundary and to determine the leading points that the two countries have agreed to install to identify the maritime boundary and materialize the parallel running through such Boundary Marker Number One, situated on the seashore […]220.

A literal analysis of the text clearly shows that the act of “materializing” is related to the parallel running through Boundary Marker No. 1, in order to place on such positions beacons or leading marks, and not to “demarcate” an alleged maritime delimitation line. The need to situate the parallel of Boundary Marker No. 1 was a consequence of the material act of verifying the original geographic position thereof, as per the Minutes of the 1930 Joint Commission of Limits, as well as the decision of the two Governments to place two beacons for fishermen within a range running through an imaginary line of such parallel. This had no connection with the alleged jurisdictional maritime delimitation through the parallel running on Boundary Marker No. 1, which, by the way, could not be established by the technical experts performing field work. All the same, it is important to highlight that the object of their mission, referred to by the technical staff in their imperfect drafting of the minutes differs from the task they were assigned by the Government through the 1968 agreement, and, between them, the formal agreement between the two Governments shall prevail. This is evidenced with the documents: As a means to prevent such events [violation of Peruvian territorial waters by Chilean vessels], the Ambassador of Peru, on behalf of his Government, has proposed to the Government of Chile the convenience for the two countries to build, along their corresponding coasts, a beacon on either side, no more than five kilometers of the frontier zone.221 The Ministry of Foreign Affairs has taken note, with interest, of the suggestion made by the Government of Peru to build beacons in the vicinity of the international boundary line. However, a resolution of such nature could only be adopted after becoming aware of the pertinent technical criterion […].222 […] this Office believes, considering the issues discussed in the interview, that it is convenient for the two countries to build beacons or leading marks of reasonable size and visible from a great distance, at the point where the common boundary reaches the sea, close to Boundary Marker Number One.223 […] in light of the discussions held in Lima by boundary and limits Peruvian and Chilean authorities, it was determined convenient for the two countries to build Minutes, 22 August 1969.

Peruvian Memoradum, 26 May 1965.

222 Memoradum of the Government of Chile, 4 June 1965.

223 Ministry of Foreign Affairs of Peru, Note addressed to the Charge d’Affairs a.i. Chile, 6 February 1968.

220 221

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beacons or leading marks of reasonable size and visible from a great distance, at the point where the common boundary reaches the sea, close to Boundary Marker Number One.224 […] a) To place two beacons or leading marks on the imaginary line which materializes the parallel which runs through Boundary Marker Number one, called “seashore.”225 Finally, given that the parallel on Boundary Marker number One, made of concrete, which is to be materialized is the one corresponding to the geographic position set out for Boundary Marker Number One, made of concrete, in the minutes signed in Lima on 1 August 1930, the Representatives suggest that the Joint Commission verify the position of such pyramid before carrying out the works recommended.226 A 54º 11’ 30” angle was measured with Theodolite Wild T-2 number 24667 at the same Station of Boundary Marker Number One and with an origin at X.3 […] to determine topographically the parallel running through Boundary Marker Number One. Once the parallel was determined, the two points where the front and back leading towers would be placed were materialized over this line: front tower at 6.0 meters West of Boundary Marker number One on Peruvian territory; back tower at 1,843.8 meters (median distance with Geodimeter) East of Marker number One on Chilean territory.”227

The substantive documentation on the placement of signals, beacons, or leading towers to guide the fishing activities of small vessels; the Agreement established by the exchange of Notes of 1968, the instructions of 1968, the report of 1968, and the minutes of 1969, as well as the interpretation of their provisions in accordance with international law, which mandates that any legal text shall be interpreted not in as isolated way but rather as a unity, taking into account its object and purpose allow to deduce that: 1. The 1968 report includes the conclusions and recommendations of a preliminary technical study and the 1969 Minute, a briefing on the practical works performed on the ground in order to perform the agreements stemming from the Notes exchanged on 6 February and 8 March 1968. Through this agreement, the Governments of Peru and Chile decided “for the two countries to build beacons, lighthouses, or leading marks of reasonable size and visible at a big distance, at the point where the common boundary reaches the sea, Embassy of Chile, Note in which Chile accepts Peru’s proposal of placing leading marks to guide small vessels carrying out fishing activities, 8 March 1968.

225 Instructions to the delegation of Peru for the field works, 15 April 1968.

226 Report by delegation of Peru and Chile gathered on site to study the possibility of placing the leading marks for the fishing vessels, 26 August 1968.

227 Minutes 22 August 1969.

224

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Maritime Delimitation with equity: the Case of Peru vs. Chile

close to Boundary Marker Number One.” It is significant that this wording was negotiated and approved by the two countries, since it is included as identical text in the Peruvian and Chilean Notes.

2. The purpose of building such beacons or signals was to “give warning to fishing vessels which regularly sail in the maritime frontier zone.”228 3. The parallel to be materialized was not the one which would supposedly correspond to the jurisdictional maritime delimitation between the two countries, but the one the two parties decided to use as a point of reference to locate and install the beacons or leading marks, i.e., “to determine topographically the parallel running through Boundary Marker Number One.” 4. The use of the expressions “common boundary,” “boundary line” refers to the land boundary, as derived from the literal expression of the texts.

5. In this same way, the use of the expression “maritime boundary”, following a conceptual unit and grammatical interpretation of the texts and the relationship of such phrases with the object and purpose of the agreements, it cannot refer to any other area but to the frontier area of the zone of exemption of penalties and the location of the two beacons or signals, which with warning and provisional nature, should guide small fishing vessels for either side. This is a space reference to determine the perimeter of the special zone of exemption of penalties based on two conventional points of the land boundary, consisting on the location of two signals or leading marks, one on Peruvian territory and the other on Chilean territory. It is incorrect and contrary to the rules of interpretation set out in the Vienna Convention to assert that physical or electric signals or their installment, aligned with the parallel of Boundary Marker No. 1, mark or demarcate the jurisdictional maritime boundary between the two countries.

The legal nature of the leading towers located on Peruvian territory, 6 meters West of Boundary Marker No. 1, i.e., towards the seashore, called “front signal” in the corresponding minutes is exactly the same as the “back signal” on Chilean territory at approximately 1,850 meters from the first one. In order to place the beacons or signals the parties could have used any point of reference in the territory between the two countries, irrespective of the land boundary markers.

In fact this was the initial intention. For this reason the already mentioned Notes of the two countries referred to their willingness to place signals in the vicinity of boundary marker No. 1. As it was normal and usual from a technical point of view and from the perspective of facilitating the site works, what happened was 228

Note of Chile, 29 August 1968.

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that the reference to be used to align the signals, tower or beacons in either territory was the parallel running through Boundary Marker No. 1, which is the milestone closest to the land boundary (seashore). Overtime its foundation was destroyed; the technical commissions decided first that it was convenient to determine the original location of the marker, as well as its coordinates, i.e., the parallel on which it was located, in accordance with the minutes of the 1930 Joint Commission of Limits. Once the parallel of the milestone was located, the leading marks were placed within a range of such milestone which was used as a reference.

Moreover, the documents mentioned do not have the legal nature of international treaties generating rights and obligations, but rather are legal instruments that record the events that occurred in a specific field work.

Chapter 3: Disagreement on the Starting Point of the Maritime Boundary

As a result of the so called “incidente de la caseta” (“booth incident”) in 2001, there were diplomatic tensions between Peru and Chile thereby surfacing, as on other occasions, the maritime dispute between the two countries. This time, the Chilean Army placed a surveillance booth inside Peruvian territory. On April 4, the Ministry of Foreign Affairs of Peru issued an official communiqué229, in which such Ministry expressed its concern and surprise and announced that it had asked the competent military authorities to identify the exact location of the booth.

On April 8, a technical commission was sent to the frontier zone. After the corresponding topographic work and geodesic survey were conducted, it was confirmed that the Chilean booth was located on Peruvian territory, 52 meters to the north of the Peru-Chile land boundary line demarcated in 1930. Moreover, it was confirmed that the booth was situated 35 meters south of the parallel that sets the range of the leading marks or towers installed in order to guide fishing activities of small vessels in the penalty exemption zone of the maritime frontier230.

The Minister of Foreign Affairs of Peru, Javier Perez de Cuellar, based on such technical report, sent on 10 April 2001 a Note to the Minister of Foreign Affairs of Chile, Soledad Alvear, in which he expressed: […] a Peruvian technical commission has travelled to the zone on the 8th of this month and has confirmed the location of the booth, taking into account that the boundary line between Boundary Marker One and the seashore -which Ministry of Foreign Affairs of Peru issued an Official Note N° RE 04-0104-01, 4 April 2001.

Report by the technical commission in charge of determining the location of the booth installed by the Government of Chile in the vicinity of the frontier, April 2001.

229 230

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Maritime Delimitation with equity: the Case of Peru vs. Chile

follows the extension of the arc of the frontier line- was established in virtue of bilateral agreements for the delimitation of the common boundary in 1930.

This technical commission has confirmed that such surveillance booth is situated inside Peruvian territory. Consequently, the Government of Peru hereby presents its protest to the Government of Chile for the installation of such booth, which under no circumstance may remain on Peruvian territory; at the same time, all Chilean military or police patrol rounds in such area shall cease231.

In her answer on 11 April 2001, the Minister of Foreign Affairs of Chile, Soledad Alvear, for the first time in the history of our bilateral relations, assumed the thesis that the 1929 Treaty on land delimitation would have been amended by virtue of the 1968 report and 1969 technical minutes: With regard to the location of the surveillance booth Your Excellency mentioned in the Note I am hereby replying, I must insist that such booth was placed in Chilean territory to the South of the boundary demarcated by the two countries, among other instruments, by virtue of the Minutes validly concluded and in full force, dated 26 April 1968 and 19 August 1969. Such agreements were followed by the materialization of the parallel of the frontier starting on Boundary Marker Number One, called Seashore.”232

The incident was finally overcome on 12 April, with the decision by the Government of Chile to remove the booth from such location, based on the “exclusive and high purpose of contributing to the harmony in the frontier area”; pinpointing, however,: “Such movement, therefore, has no relationship whatsoever with boundary issues unquestionably determined between the two countries.”233 Irrespective of the motivation of the incident, the truth is that as a result thereof, the Government of Chile, for the first time in our bilateral relations, suggested the thesis that the 1929 Treaty, which delimited the land boundary between the two countries, thereby solving an issue pending since the 1879 War, would have been amended by the 1968 report and the 1969 minutes. According to the Government of Chile, Concordia Point, located on the seashore, would have been replaced, in virtue of a 1968 report and of technical minutes, by the point of the Boundary Marker N° 1, hence amending the 1929 Treaty.

The motivation behind this thesis would apparently be the need to grant a minimum of consistency to the Chilean position on maritime boundary delimitation in connection with the stipulations in the 1968 report and the 1969 minutes. In such instruments, based on this interpretation, the maritime boundary would have been fixed starting on Boundary Marker No. 1. In other words, such boundary would Ministry of Foreign Affairs of Peru, Note, 10 April 2001.

Ministry of Foreign Affairs of Chile, Note of 11 April 2001.

233 Ministry of Foreign Affairs of Chile, Note N° 407 of 4 April 2001.

231 232

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have been determined not on the point where the land reaches the sea, as set out in the 1929 Treaty, but instead on a dry point inside the territory. This thesis has elements that challenge the principle of pacta sunt servanda.

A guiding principle of international law is that maritime boundaries shall begin on the point where the land boundary reaches the sea. This is part of the principle “the land dominates the sea”. How can we affirm that there is a maritime boundary that would have been determined not on the point where the land boundary line reaches the sea, but within a point on the land surface of the States?

The recourse used by Chile is to affirm that the 1968 report and the 1969 minutes would have amended conventionally the 1929 Treaty. And, consequently, the terminal point of the land boundary would be Boundary Marker No. 1. The corollary of this thesis assumes, consequently, that the 1968 report and the 1969 minutes established the maritime boundary starting on Boundary Marker No. 1, with which there would be basic legal consistency in connection with the alleged existence of a maritime boundary. The weakness of this argument, apart from the fact that has already been proven that the report and the 1968 minute do not amend the 1929 Treaty, since they do not contain any stipulation in that sense, is drawn from the fact that they are neither international treaties nor contain legal obligations of any nature whatsoever.

The material and legal reality is very different from and conflicting with such arguments. In order to determine what the starting point is of the maritime boundary, whether Point Concordia or Boundary Marker N° 1, it is necessary to determine what is the point on the land boundary that reaches the sea. To this end, it is necessary to determine what the delimitation and demarcation established by the 1929 Boundary Treaty was, which determined the land boundary between the two countries, as well as the exact point where that boundary reaches the sea. Second, it shall be necessary to determine whether or not such demarcated boundaries were amended by the 1968 report and 1969 minutes.

1. The Boundary Established by the 1929 Treaty on the Point where the Land Boundary Reaches the Sea The 1929 Treaty is straightforward and simple in both the provisions and material execution. For this reason, the demarcation process did not give rise to any differences in interpretation between the parties. Article 2 of such Treaty stipulates The territory of Tacna and Arica shall be divided into two portions of which Tacna, shall be allotted to Peru and Arica to Chile. The dividing line between the two portions, and consequently the frontier between the territories of Chile and Peru, shall start from a point on the coast to be named “Concordia”, ten kilometers to 145

Maritime Delimitation with equity: the Case of Peru vs. Chile

the north of the bridge over the river Lluta. It shall continue eastwards parallel to the line ‘of the Chilean section of the Arica La Paz railway and at a distance of ten kilometers there from, with such sinuosities as may be necessary to allow the local topography to be used, in the demarcation, in such a way that the sulphur mines of Tacora and their dependencies shall remain within Chilean territory […] 234.

In virtue of this provision, the two parties agreed that the land boundary should start on a “point on the coast to be named called ‘Concordia,’ kilometers to the north of the bridge over the river Lluta”. The parties thus identify a point on the coast that reaches the sea, whose exact location shall be determined by the demarcation process. For this purpose a precise method was stipulated: to measure 10 kilometers from the north of the bridge over the Lluta River and a reference point on the coast on the seashore.

Based on in this unequivocal determination, the Joint Commission of Limits began and completed its work in 1930. The Commission took to the ground the boundary established through the corresponding demarcation process. If the delimitation is a formal proceeding to establish, in real or abstract term, the boundary lines between two States, as is the case of Article 2 of the 1929 Treaty, the demarcation is a material process by virtue of which the ideal line determined in the delimitation is materialized on the ground. This is a matter of material actions that imply complex technical activities. It is common, though not imperative, that the demarcation be signaled with the placements of marks, boundary marks, or signs that allow referencing to the frontier line determined in the boundary treaty.

Milestones or landmarks are legal property used to mark or reference the dividing line, but they do not, on their own, determine the position of the boundaries since it is determined by the astronomic, geodesic, or satellite measurements recorded in the corresponding minutes. If for any reason, due to the nature, topographic conditions, or hydrographic setting, it is not possible to place a milestone on the exact point of the boundary line, hypothetical case corresponding to, for instance, the watercourse of rivers or on the seashore that can be flooded with sea currents, such landmarks shall be placed on a different close and safe spot.

Before starting the work on the field, the Joint Commission of Limits agreed on the technical criteria to set out the boundary line on the ground. This was recorded in identical instructions that were given to each national Commission.

These instructions record all technical and geographic details that the two ¶ countries agreed upon in order to materialize the boundary on the ground. The Chilean instructions —identical to those of Peru- were released on 28 April 1930, signed by the Minister of Foreign Affairs, Manuel Barros C., registered 234

Cf. Treaty and Additional Protocol to settle the Tacna and Arica Issue, 3 June 1929.

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under number 5697/79 addressed to the Chairman of the Chilean delegation to the joint commission, Mr. Enrique Brieba.

Such instructions order: In order to trace the dividing line and to place the corresponding boundary markers on the points that were not determined since the last works of the, Chilean-Peruvian Limits Demarcation Commission were suspended, we have come to an agreement with the Government of that country on the tracing of the line; and agreement that this Commission should honor. As a Chilean delegate to the Joint Commission of Limits with Peru, you will follow the stipulations agreed upon, and, in agreement with the delegate of Peru, you shall move, as soon as possible, to place the dividing boundary markers on the line which shall be determined as follows: CONCORDIA BOUNDARY MARKER: Starting point on the coast of the boundary line. In order to set this point: 10 kilometers shall be measured from the first bridge of the Arica-La Paz railway over the Lluta River, northward, in the Pampa de Escritos, and an arc of 10 kilometers radius shall be traced towards the west centered on such bridge and which intercepts the seashore, in such a way that any point of the arc is 10 kilometers away from such bridge on the Arica-La Paz railway over the Lluta River.

This point of intersection of the arc traced with the seashore shall be the starting point of the dividing line between Chile and Peru [emphasis added by the author].

A boundary marker shall be placed on any of the points on such arc, as close to the sea as is possible, where it is protected from destruction by sea waves.235

Based on these instructions, the Joint Commission of Limits set on the ground the boundary line, which begins at “the point of intersection of the arc with the seashore.” All the same, it placed the first boundary marker on the place closest to point where the boundary reaches the sea, thus protecting it from destruction by sea waves. The outcome of the demarcation works was recorded in the Final Minutes of the Demarcation Joint Commission, where the boundary line was formally recorded in following terms: The boundary line demarcated starts on the Pacific Ocean, on a point on the seashore, located 10 kilometers toward the northwest of the first bridge over the Lluta River on the Arica-La Paz railway and ends in the Andean Mountains, on Land Marker No. 5 of the former Chile-Bolivia boundary.236 Representative of Chile to the Peru-Chile Joint Commission of Limits , Brieba, Enrique, Memoria sobre los Límites entre Chile y Peru de acuerdo al tratado del 3 de junio de 1929, presented to the Ministry of Foreign Affairs of Chile, vol. I. Technical Study and Documentation, Instituto Geográfico Militar, Santiago, Chile, 1929, p. 39.

236 Cf. Final Minutes of the Peru-Chile Joint Commission of Limits, 5 August 1930 235

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Cartography of the terminal point of the land boundary on the seashore, Punto Concordia, signed by the Chairman of the Chilean Demarcation Commission, Enrique Brieba, where the terminus of the boundary, as per the 1929 Treaty was recorded. We can clearly notice that Boundary Marker N° 1 is not the terminus of the land boundary. (Source: Enrique Brieba, op. cit., låmina IX.)

Cover Page of the Memorial presented by the representative of Chile to the Chile-Peru Demarcation Joint Commission, 1930.

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to Tacna

PERU

BOUNDARY

Marker Nº 1 18º 21’ 00” S

CHILE

Starting Point of the Maritime Boundary 18º 21’ 08” S 70º 22’ 39” O

Lluta River

Bridge

Lluta River

Pacific Ocean

City of Arica Peru-Chile land boundary as per the 1929 Treaty and its Supplementary Protocol.

(Source: Adapted illustration, taken from Agüero, Marisol, Consideraciones para la Delimitación Marítima del Perú, Lima: FECP, 2001.)

The understanding of the parties leaves no room for different interpretations.

The point on the seashore, situated 10 kilometers northwest from the first bridge over the Lluta River is the terminus of the land boundary where the land reached the Pacific Ocean. For this reason, it is the beginning of the maritime boundary, located at 18°21’08" S and 70°22’39” W. Boundary Marker No. 1 is only one of the 80 reference landmarks that were placed along the boundary line, as per the minutes of demarcation approved by the two countries on 5 August 1930237. This is the boundary which is closest to the beginning of the boundary line, approximately at 182.3 meters of the intersection point of the arc traced with the seashore. The Government of Chile in its communications wrongly calls this boundary marker ‘Seashore’. Its official name is “Boundary Marker No. 1”238.

The 1968 report and the 1969 minutes, which the Government of Chile, paradoxically, calls amendments to the 1929 Treaty, if read carefully, in fact, far from containing provisions that could be interpreted as amendments to the 1929 237 238

Ibid.

Ibid.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

Treaty actually confirm that the starting point is not Boundary Marker No. 1, but the intersection point of the arc with the seashore.

Hence, in the report of 26 April 1968, it is pointed out as an objective of the joint commission, in charge of placing beacons or leading marks guiding small fishing vessels, the following: 1. To place two leading marks, with day time and night time signaling. The front leading mark shall be placed in the vicinity of Boundary Marker No. 1 on Peruvian territory […]239.

The drafting assumes that Boundary Marker No. 1 is not the terminus of the land boundary; otherwise, there would have been no need to specify that such milestone should be placed “in the vicinity of Boundary Marker No. 1 on Peruvian territory”. Here, the assumption is that Boundary Marker No. 1 is not the final point of the land boundary; if it were so, there would have been no need to include “vicinity”. This is even clearer in the minutes of 22 August 1969, which reports on the work carried out. Such report states: Once the parallel was determined, the two points where front and rear leading marks would be placed were materialized. Front leading mark at 6 meters West of Boundary Marker No. 1, on Peruvian territory; back leading mark at 1,843.8 meters (distance measured with geometer) to the East of Boundary Marker No. 1, on Chilean territory.240

It clearly states not only that the beacon is placed on Peruvian territory but also that such territory is to the West of the Boundary Marker —i.e., toward the sea— i.e., that between the Boundary Marker and the sea there is a portion of Peruvian territory. This is further confirmed in another section of the 1969 minutes, the one on the execution of field works, where it states that: […] the 180° angle towards the sea was measured from the original position of Boundary Marker No. 1, thereby materializing such direction by a mark (jalon) placed on the seashore [emphasis added by the author] and which was called ancillary point to Boundary Marker No.1.241

There, the reference to seashore, distinguished from Boundary Marker No. 1, shows that the 1969 minutes reports on the practical works of building of the beacons under a clear and unequivocal understanding that the starting point of the land boundary is the point of the arc which intersects with the seashore.

Nowhere in the minutes is reference made to Boundary Marker No. 1 as the terminus of the land boundary and therefore the starting point of the maritime boundary.

239 Report by Peru and Chile technical experts who did field work to determine the position of Boundary Marker No. 1 and to install 2 beacons with day time and night time signaling, 26 April 1968.

240 Minute of 22 August 1969.

241 Ibid.

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As has been seen the 1968 report and the minutes imply the exact knowledge that the terminus of the boundary is at intersection of the arc with the seashore since it is necessary to affirm —as these documents assert— that one of the leading towers is on Peruvian territory, to the west of Boundary Marker No. 1, i.e., towards the sea.

Ignacio Llanos, Chilean Internationalist, also has this understanding. Upon wondering whether or not the 1968 document and the 1969 minutes amended the 1929 Treaty, he answered negatively: Neither the 1968 document nor the 1969 minutes allude to the land boundary in the segment between the leading mark close to the sea and the low-water line, does this means that the land boundary was implicitly amended in its westernmost sector and that, from such point, the last segment of the land boundary is the parallel of Boundary Marker N° 1? The answer should be no since the terminus of the land boundary corresponds to the terminus of the arc ‘Concordia’.242

However, Llanos adds a conclusion that is contradictory: “As a result the terminus of the land boundary would not coincide with the starting point of the maritime boundary.”243 This would take us to an absurd: the maritime boundary would start 245.41 meters inward of Peruvian territory, which is the distance between Boundary Marker No. 1 and the seashore along the parallel244.

Llanos interpretation fails the test. This is an absurd thesis which would additionally imply that the maritime boundary would not start in the adjacency with the sea but instead inland. Under this hypothesis, the southernmost coast of littoral of Tacna, exactly where the arc intersects the seashore, would be bathed by waters under the sovereignty and jurisdiction of Chile.

This hypothesis breaches and is contrary to the fundamental principle and rule of the maritime delimitation law, in virtue of which “the land dominates the sea”. As we have seen, it is such which warrants the entitlement of sovereignty over the sea adjacent to a coastal state.

There is no legal or diplomatic instrument supporting the thesis of the Chilean Government, not even the mentioned texts of the 1968 report nor the 1969 minutes, in the sense that the starting point of the maritime boundary is Boundary Marker No. 1 and not the point of intersection of the arc with the sea, as established in the 1929 Treaty.

Llanos Mardones, Ignacio, op. cit. p. 154.

Ibid., p. 154.

244 Cf. Minute of onsite confirmation on the location of the Chilean booth on the common land boundary, Tacna, 8 April 2000.

242 243

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Maritime Delimitation with equity: the Case of Peru vs. Chile

Chapter 4: Dispute Arising out of Chile’s Denial of Peru’s Sovereignty and Jurisdiction over a Space of the Maritime Domain (28,471.86 km2) Different from the Area under the Maritime Boundary Dispute

The Government of Chile contests in a sui generis manner, in addition to the 67,139.4m2 —subject matter to the maritime boundary dispute—, another big area of maritime domain of Peru, 28,471.86 km2, approximately. This matter, just as the one on the starting point of the maritime boundary, is an extreme claim by Chile.

The legal entitlement of Peru over such area, in accordance with international law, stems from the principle of adjacency. This is the same entitlement of Peru over its entire projection up to 200 miles; it is also the same entitlement in virtue of which Chile and all coastal states ground their sovereignty and jurisdiction rights. The internal legal act, considered a unilateral act —in accordance with international law—, in virtue of which Peru perfected its sovereignty and jurisdiction entitlement over this area, is formally made up by the provisions in Law 28621, which establishes the baselines of the Peruvian maritime domain.

200

es

mil

12

0m

iles

20

0m

iles

Peruvian Sea

200 miles

Starting Point of the Maritime Boundary

ile s 20

0m

20 0m

ile

s

165 miles

KEY International boundary Department / regional boundary Maritime Boundary, according to Peru Maritime Boundary, according to Chile Department / regional Capital City

Chilean Sea

Kilometers Nautical Miles

Source: Ing. Ángel Gozar Manari Cartographic design: Grupo Geo Graphos 2007

The shadowed triangle corresponds to the maritime domain of Peru, regarding which Chile carries out administrative acts contrary to international law, disavowing Peru’s sovereignty and jurisdiction.

(Source: Adapted illustration, taken from Agüero, Marisol, op. cit., p. 322).

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The Government of Chile adduces that this area is high seas, in which it unilaterally claims a sort of preferential economic rights and jurisdictional prerogatives, because it believes that the maritime area alluded to is part of its “presential sea”245 . This means a disavowal of Peru’s sovereignty and jurisdiction.

The concept of “presential sea” is not recognized by international law. It has been defined as “the space of high seas adjacent to the exclusive economic zone where Chile shall be observing of and participating in the same activities as those carried out by other States and, acting within the legal status of the high seas established by the United Nations Convention on the Law of the Sea, constitute for the State of Chile a means to protect its national interests and to counteract threats directly or indirectly menacing its development and therefore, its security.”246 According to this thesis, in this “presential sea” zone the Chilean State can enact rules and carry out economic activities and security oversight. The concept has this dual meaning: economic and military: In other words, the concept of presential sea in Chile implies remaining in the high sea existing between the EEZ [Exclusive Economic Zone] of the continent and the outer limit of the continental shelf of Easter Island and the Salas and Gomez Islands, in view of protecting its national interests and, in turn, carry out economic activities which contribute to the development of the nation (…). This relation of use, which implies the idea of a rational exploitation of resources, i.e., to prevent depletion and rupture of the natural balance of the area under exploitation, is associated not only to the development of fishing fleets but also to scientific research on the behavior and cycles of the resources to be exploited, their location, and exploitable volumes. In addition, it will be necessary to determine control and audit mechanisms for fishing activities through international, regional, or sub-regional agreements to establish a resource management system and, hence, conserve species and protect the environment from any type of pollution.247

This thesis itself would be irrelevant for the maritime dispute with Peru, were it not because the Chilean laws and the international acts of such country include within the presential sea that important portion of maritime domain of Peru.

245 The institution of “presential sea”, not recognized by international law, has been included in Chilean domestic legal system. The thesis was originally suggested by Admiral Jorge Martinez Busch, Former Commander in Chief of the Chilean Navy, who envisioned such thesis as Chile’s reply to the challenges of “ocean policies”. Cf. Martinez Busch, Jorge, “Ocupación efectiva de nuestro mar. La gran tarea de esta generación.” In: Revista de Marina, vol. 107/796, No. 3, 1990, pp. 233.

246 Martinez Busch, Jorge, “La Pesca en el mar presencial”. In: Seminario La Pesca en el Mar Presencial y los Derechos del Estado Rector del Puerto, Santiago de Chile, 28 March 2000.

247 Ibid.

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Pursuant to the Fishing and Agriculture General Act of 1991248, the presential sea is delimited to the South by the South Pole (Antarctic Zone), to the North by parallel 18°21’00”, to the West by a line that starts from the coastline up to Easter Island, thereby closing an ellipsis. By placing parallel 18°21’00” as the boundary of the presential sea in the North, which is the one that Chile intends to claim for the maritime boundary with Peru, the projection of the presential sea includes such vast area of Peruvian maritime domain.

This claim has no grounds in international law, whether conventional or customary. This is a unilateral denial of Peruvian maritime domain without any grounds whatsoever, because the 200-mile projections of either country do not overlap in that area.

The chart below shows the unlawful projection of the Government of Chile, including in its presential sea a portion of Peruvian maritime domain.

Presential Sea

Antartic Chilean Territory

KEY Presential Sea Exclusive Economic Zone Continental Shelf Source: Ministery of Defense of Chile Cartographic design: Grupo Geo Graphos 2007 Projection estereographic - Polo Sur (Diagrama esquemático, no tiene valor jurídico

Projection of Chile’s “Presential Sea”, including an overlapping area of Peruvian and Chilean maritime areas, as well as the maritime domain zone of Peru that Chile claimed as “high seas”.

248

Law 19.080, Amending the General Fisheries Law 18.892 of 28 August 1991.

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The Government of Chile has included in its domestic law the figure of presential sea, including its corresponding map. The main laws denying Peru’s sovereignty over this area are the following: a) Law 18.892 of 1989 and its amendments, General Law on Fisheries and Aqua-culture (Decree No. 430/91) and 19.080 of 1992. Article 2 thereof includes in the legal system of Chile the definition and scope of presential sea under the following terms: […] the portion of high seas, existing for the international community between the limit of our continental exclusive economic zone and the meridian which running through the western border of the continental shelf of Easter Island, extends from the parallel of Boundary Marker No. 1 of the international boundary line dividing Chile from Peru up to the South Pole.249

Article 172 of Law 19.080 empowers the Office of the Under Secretary of Fisheries and the Chilean Navy to carry out fishing activities and security surveillance in the area called presential sea; i.e., the zone including the maritime space under Peruvian sovereignty. Article 43 of that same law provides that Chilean Fishing vessels with crews with 85% Chilean nationals are exempted from paying the single fishing patent (“patente única pesquera”). b) Law 19.300 of 1994, Environmental Framework Law. Article 33 thereof establishes that […] the competent agencies of the State shall develop programs to measure and control air, water, and soil quality so as to protect the right to live in a pollution-free environment. These programs shall be carried out at a regional level. Regarding EEZs and the Presential Sea of Chile, background information thereon shall be compiled.250

These provisions are enforced upon Peruvian maritime domain in the disputed zone; this is an unlawful act from an international law perspective. c) Law 19.624, Article 124, subjects to the jurisdiction of Chilean Civil Courts infringements committed in the presential sea, among other areas: […] if any infringement is committed in or commenced in the territorial sea, in the EEZ, or the presential sea or an area of high sea as stipulated under subsection h) of Article 110, the Civil Courts of the cities of Arica, Iquique, Tocopilla, Antofagasta, Chañaral, Caldera, Coquimbo, Valparaiso, San Antonio, Constitución, Talcahuano, Valdivia, Puerto Aysén, Punta Arenas or Eastern Island shall have jurisdiction to try such matters251.

Law 19.080, Article 2.

Law 19.300, Law on Environmental General Basis, 1994.

251 Law 19.624, Article 124.

249 250

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In all of these laws, the Government of Chile introduces, contrary to international law, administrative or jurisdictional powers over an area that is part of Peruvian maritime domain. On each of these occasions, the Government of Peru has made its reservations and corresponding protests.

The dispute is substantiated with the ratification process of the Galapagos Agreement or Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific. The Government of Peru has asserted that it will not ratify such agreement as long as Chile insists on including the concept of “high seas” within a maritime space that belongs to Peru252. Peru has also raised this issue and made a reservation in connection with the creation of a regional high seas fisheries organization, to which Chile, Australia, New Zealand, and Peru would be members, because the documents prepared by the Government of Chile state parallel 18°21’00” as one of the limits for the scope of application of such organization253.

International law does not recognize any State any right of any nature over spaces that make up part of the 200-mile-area extension of other States, particularly in areas where there is no overlap. The position of Peru on this second component of the maritime dispute has the legal strength arising out of not only its own entitlements and rights, but also of the inexistence of a legal ground to support Chile’s claim.

The dispute in this case consists in the illegal power that the Government of Chile arrogates to itself to enact laws, reserve powers of conservation to itself, regulations, preferential fishing, security, and jurisdictional attributes over the maritime domain of Peru, thereby breaching essential principles and rules of international law.

Chapter 5: The Effectivités and the Behavior of the States in the Maritime Delimitation Law and the Peru - Chile Dispute

1. Effectivités As has been noted, it is not possible to draw from the Declaration of Santiago or the Agreement relating to a Special Maritime Frontier Zone the existence of a delimitation line through parallel of latitude and even less from parallel 18º 21’00”. Nor is it possible to arrive at the conclusion that there is a commitment The positions of the two countries are recorded in numerous memoranda exchanged between 22 February 2005 and 9 March 2005.

253 Cf. Embassy of Peru in Chile. Note 5-4-M/276 addressed to the Ministry of Foreign Affairs.

252

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which forces the parties on such claimed parallel line, based on the content of the 1968 report and 1969 minutes.

Likewise, there is no bilateral legal instrument or custom whatsoever generating legal obligations between the two States in favor of the Chilean claim of conferring to a significant portion of Peruvian maritime domain the legal condition of high seas, or substantiating Chile’s nonexistent right to legislate, establish jurisdictions, or apply its thesis of presential sea over such area.

Hence, following juridical hermeneutics, natural to maritime dispute settlements, we must analyze the issue of the effectivités and the behavior of the states in order to determine whether Peru and Chile would have accepted to trace the boundary through the parallel of latitude tacitly, as asserted by one of the parties.

In the overlapping area, the Government of Chile unlawfully and always provisionally exercises certain jurisdictions. This is a force policy that Peru has pointed out not to recognize but as such in order not to hinder the existing peaceful relation. All of this, under the rules of the international law in force.

The Government of Chile, repeatedly, has referred to the effectivités (exercise of jurisdictions) exercised over the overlapping area, recognizing upon this element the character of additional grounds to its claims. This claim is clearly wrong.

Certainly, possession or occupation constitutes a form of original acquisition of sovereign rights over a territory. And, within this context, the discussion of the land boundary disputes, the effectivités play a key role, which is recognized by the international courts. However, this is essentially related to land delimitation, but not to maritime delimitation, which has its own specificities.

Even though there are common elements in the attribution of sovereignty and jurisdiction rights over a space, there are substantial differences between land delimitation and maritime delimitation that gives the effectivités significance and value which is different in each case. With land delimitation it is not possible to have two valid entitlements over the same space, i.e., the entitlement of one Party will always prevail over that of the other party; yet with Maritime Delimitation Law there will always be two equally valid entitlements since they stem from the principle of adjacency and distance. It is because of the existence of two legally valid entitlements that we face the overlapping or superposition of the corresponding areas of sovereignty and jurisdiction, which is the foundation of maritime delimitation.

Only when such overlap occurs is it necessary to delimit. For this reason, while in land delimitation over a disputed area the arbitration award or delimitation will assign the area to the State that has a stronger entitlement, in the case of 157

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maritime delimitation it is never possible to assign the entire space under dispute to one of the parties, but instead is always divided based on equitable principles.

This has both theoretical and practical consequences of utmost importance on the different roles play by effectivités in the cases of land delimitation and maritime delimitation. Occupation and exercise of state jurisdictions, as well as the acts of sovereignty, are usually determining factors in the case of land boundaries. This is not the case in maritime delimitation. In the case of land sovereignty, occupation is mode that comes from the acquisition of land, but this is not the case with maritime spaces upon which States exercise sovereignty and jurisdiction254.

International law does not recognize sovereignty and jurisdiction over maritime spaces on the merits of occupation, possession, or exercise of effectivités. In maritime delimitation, occupation does not generate rights for the attribution of sovereignty over maritime space adjacent to the coasts of the State. This has so been determined by the International Court of Justice, which, on a judgment on the North Sea Continental Shelf, pointed out that “the right over the continental shelf is independent from its effective exercise.”255 Prosper Weil, when explaining the different roles played by effectivités in the land and maritime delimitations, recalls that concerning the former occupation and effective exercise of sovereignty, to the extent that they are elements that contribute to establish a legitimate entitlement, are decisive; however, in the case of maritime delimitation they do not have such nature256. Weil points out that occupation, effective exercise of sovereignty and jurisdiction of the State, to the extent that they contribute to establish the foundations of the title, are essential in land delimitation, but have no substance in maritime delimitation: “L’occupation, l’exercice effectif des souverainetés étatiques, les actes de souveraineté: autant d’éléments qui contribuent à établir le titre le meilleur, donc le seul juridiquement à retenir dans les problèmes de délimitation terrestre, mais qui sont sans pertinence dans la délimitation maritime.257 Weil recognizes that the Court has referred to the effectivités but within a context different from the one it is applied to as a source of land sovereignty entitlements: Sans doute la Cour s’est-elle intéressée dans Tunisie/Libye au comportement des parties et à la présence de puits de pétrole dans la zone à délimiter, mais elle l’a fait moins sous l’angle de l’effectivité que pour ‘tenir compte de tous les indices On the effectivités of the maritime boundary in connection with the land, cf. Bardonnet, Daniel, Frontières maritimes. In: Annuaire François de droit international, vol. 35, 1989, pp. 1-64.

255 ICJ, Recueil, 1969, para. 23.

256 Weil, Prosper, Perspectives du droit de la délimitation maritime, París. Éditions A. Pedone, 1988, pp. 117-118.

257 Ibid., p. 100 254

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existants au sujet de la ligne ou des lignes que les parties elles-mêmes ont pu considérer ou traiter en pratique comme équitables’.258 [Without a doubt, the Court was interested in the Tunisia vs. Libya case in the behavior of the parties and in the presence of the oil wells in the area to be delimited, but it did so first from the effectivités perspective in order to take into account all of the existing hints in connection with the line or lines that the parties have, in practice, negotiated or considered as equitable.]

Weil warns on the risks and negative effect that the possibility that maritime delimitation law could be driven towards the consideration of fundamental entitlements on effectivités: “Il n’y en avait pas moins là un risqué de voir le droit de la délimitation s’orienter vers la mise en balance de titres faisant appel, entre autres, à l’effectivité, ce qui aurait non seulement incité les Etats à des actes d’occupation tels des forages intempestifs, mains conduit à un profond bouleversement du droit de la mer ; aussi comprend-on les réticences exprimées par certains juges".259 [There was at least the risk of seeing the law on delimitation lead towards the consideration of entitlements based upon, among other things, effectivités; this would not only have taken the States to occupation acts such as hasty explorations, but also to deep changes in the law of the sea; hence the warning expressed by several judges is understood.]

2. Behavior of the States The Behavior of the States, as a way to express, tacitly or expressly, their consent or acquiescence is one of the ways to establish or create international obligations that can be claimed at all levels of international law.

The general rule which drives the consequences of the behavior of the States in international law is expressed in the principle “non venire contra factum propium” (no one can legally go against his own actions)260 . The theory of actos propios (own acts theory) related to the institutions of the Anglo-saxon estoppel and the German verwirkung apply both to the legal relations of domestic law and international law, and within the latter, specifically to the behavior of the parties involved in land, boundary, or demarcation disputes. As we shall see in the case of maritime delimitation, the requirements for its application tend to be more rigorous. Luis Maria Vives sees it as “(…) a general principle of law […] which makes the behavior of an individual who hold a right illegal when it is contrary to a previous legally valid and efficient one, performed by the same individual.”261 Ibid.

Ibid., p. 100 260 Perelman, Chaim, La lógica jurídica y la nueva retórica, Madrid, Editorial Civitas, 1988, p. 123.

261 Vives, Luis Maria, La doctrina de los actos propios, vol. 1987-B, L.L., p. 946, No. II-A. 258 259

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In accordance with the actos propios principle, it is not lawful for a legal or natural individual to go against his own acts when such acts have been the expression of his own consent and have been motivated by behaviors driven towards creating, amending, or extinguishing legal relations.

Alejandro Borda points out, quite rightfully, that this stems from the general principle of good faith in complying with the legal obligations and adds that in order to enforce it three requirements or conditions shall occur: a) a previous relevant and effective behavior; b) the exercise of a power by the legal individual itself which creates a litigious situation and which is contradictory to its previous behavior; and c) the identity of subjects involved in both behaviors262.

International law has introduced the figure of the Anglo-saxon stoppel; such institution in domestic law has an eminently defensive procedural nature, and which takes two main forms in English law: estoppel by res judicata, which is applicable to judicial judgments; and estoppel by representation, which operates at the level of expression of willingness. The latter one has been taken by international law, with a broad conception on certain cases and with a restrictive criterion in other cases263.

There is an increasing resort to estoppel in international law in its by representation application. Martin mentions eighteen cases in which the parties have invoked the principle, it has been reasoned and used by judges or arbitrators, or it has been referred to in extenso by dissenting opinions of certain judges.264 This author suggests a broadly accepted definition of estoppel in international law, prepared based on the characteristics that such institution presents, whether explicitly or implicitly, in connection with arbitration awards or jurisdictional judgments: […] when one of the parties, in light of its declarations, its acts, or behavior, has taken the other party to believe in the existence of a given state of affairs, based on which it has been led to take some actions or refrain from taking some actions, to the extent that this has led to change their relative positions (in detriment of the second party or in benefit of the first party, or the two at the same time), the first party could not, by way of estoppel, establish vis à vis the second party a state of affairs that is different from the one originally presented as if it were an existing one.265 Borda, Alejandro, La teoría de los actos propios, Buenos Aires, Abeledo-Perrot, 1993, p.67 Cf. Martin, Antoine, L’estoppel en droit internationale public, (Thèse présentée a la Université de Genève), Éditions A. Pédone, Paris, 1979 ; also cf. Bowett, D. W. “ Estoppel before International Tribunals and its Relation to Acquiescence."In: British Yearbook of International Law, No. 33, 1957, pp. 176-202 ; cf. MacGibbon, I., “Estoppel in International Law”. In: The International and Comparative Law Quarterly, vol. 7, No. 3, July 1958, pp. 468-513 and Pecourt-García, Enrique, “El principio del ‘estoppel” en derecho internacional público”. In: Revista española de Derecho Internacional, vol, 14, 1962, pp. 98-139.

264 Ibid., pp. 68-69.

265 Ibid., p. 260. Translation into Spanish taken from: Diez de Velasco, Manuel, Instituciones de Derecho Internacional Público, Madrid, Tecnos, 1973, p. 268.

262 263

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The majority of the doctrine agrees that estoppel in international law is an analogy to the restrictive conception of estoppel by representation of the English Law, and therefore, for this institution to operate, the party that invokes it shall: a) Establish the existence of an initial declaration, act, or behavior, which, having been issued by an entity with the authority to engage the State, expresses freely and unequivocally a given state of affairs. b) Prove that it has been led to act or refrain from acting based on the faith that such declaration, act, or behavior conveyed. c) Establish that the other party, to which the initial declaration, act, or behavior is imputable, has changed its position, or attitude, going back on its words or contradicting itself on an essential point of such initial declarations, acts, or behaviors. d) Show that such change has created a detrimental situation to it or an advantageous situation to the other party, or the two things.

On the matter of maritime delimitation, the Court has omitted to use directly the word estoppel, irrespective of the fact that, according to some scholars, it has used the principle. In any event, the principle actos propios originally from Hispanic Law, shares some elements with the institution of estoppel, to the extent that some writers liken them. However, they differ in that the principle actos propios is not limited to an eminently procedural or defense matter, but is also has a substantive nature to determine the existence of rights or obligations. For this reason, the judgments of the Court on territorial matters are closer to the principle actos propios or the behavior of States than is the institution of estoppel.

In any event, under any of such interpretations or names given to this principle, the judgments and arbitral awards have established that the behavior by a State when it incurs in venire contra factum propium is unlawful.

As judge Alfaro has pointed out in his single opinion on the Temple of PrÊah VihÊar case, [‌] whatever term or terms be employed to designate this principle such as it has been applied in the international sphere, its substance is always the same: inconsistency between claims or allegations put forward by a State, and its previous conduct in connection therewith, is not admissible (allegans contraria non audiendus est). Its purpose is always the same: a State must not be permitted to benefit by its own inconsistency to the prejudice of another State (nemo potest mutare consilium suum in alterius injuriam) 266 .

266

ICJ, Recueil, 1962.

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The States have alleged before the International Court of Justice, in a significant number of cases, the prior behavior of the parties as an expression of their consent, tacit or express, regarding given international obligations. The way in which such allegations have been processed by the Court has been heterogeneous, with an evolution trend in favor of applying ever stricter standards in order to proved acquiescence stemming from the behavior of one of the parties, especially in the cases of maritime delimitation.

In the judgment on fisheries (Great Britain vs. Norway), December 1951, the Court pointed out that the Norwegian authorities applied their delimitation system consistently and persistently since 1869 until the beginning of the dispute. The United Kingdom alleged that it had not had full knowledge of such system, that it had not consented thereto, and that consequently could not be imposed upon the UK. The Court settled: “La Norvège a pu avancer, sans être contredite, que le promulgation de ses décrets de délimitation de 1869 sont, ainsi, qu’il a été démontre plus haut, l’application d’un système bien défini et unifie, c’est en définitive ce système lui-même qui aurait bénéficie d’une tolérance général, fondement d’une consolidation historique qui le rendrait opposable a touts les Etats.”267 Another case in which the behavior of the States has been determining in the establishment of requirable obligations it’s the Grisbadarna268 case on the determination of the territorial waters between Sweden and Norway. The Permanent Court of Arbitration, in its 1909 Award, based on the subsequent behavior of the two States grounded the validity of the Sweden and Denmark (Norway) Convention of 26 October 1661. The Judgment on the Temple of Préah Vihéar (1962)269 case and the Arbitral Award made by the King of Spain on 2 December 1906270 are also rulings in which the behavior of the parties has played a determining role.

As the Court itself has pointed out, however, these rulings have essentially dealt with territorial waters (territorial sea) and not with big ocean spaces like the ones international law currently recognizes as areas of sovereignty and jurisdiction of the States.

On the other side of jurisprudence, are the more recent cases in which the Court has denied allegations based on the behavior of the parties; it has not taken them Arrêt, “Affaire des pêcheries (Norvège/Royaume Uni)”, Recueil, 1951, p. 138.

Grisbadarna Arbitration, 4 American Journal of International Law, 1910, pp. 226-227.

269 ICJ, “Temple of Préah Vihéar Case (Cambodia vs. Thailand)”, Reports 1962, pp. 6-146.

270 Cf. ICJ “Arbitral Award Made by the King of Spain on 23 December 1906 Case (Honduras vs. Nicaragua)”, Reports, 1960, p. 192.

267 268

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into account or, if it has done so, it has not played a determining role, especially in connection with the delimitation of the continental shelf and the exclusive economic zone.

In the North Sea continental shelf cases (Federal Republic of Germany vs.

Denmark, Federal Republic of Germany, The Netherlands)271, both Denmark and The Netherlands alleged that the Federal Republic of Germany, by its behavior, public statements, proclamations, and other types of documentation and its own acts had acted according to the obligations arising out of the 1958 Convention of the Continental Shelf, whose provisions were fully enforceable in this instance.

The Chamber, after analyzing and assessing the arguments of the parties, particularly their own acts and the behavior of the Federal Republic of Germany, decided that [...] it was clear that the Court could not accept this type of thesis, except in the

situation that the behavior of the Federal Republic had been absolutely defined and constant and even under such hypothesis, i.e., if such State had actually had a real intention to manifest acceptance on recognition of applicability of the conventional regime, then it must be asked why it was that the Federal Republic did not take the obvious step of given expression of this readiness by simply ratifying the Convention.272

In the Judgment the Chamber ponders over the requirements that such behavior of States shall meet in order to deduce from such behavior a legal rule: 1) acts or behaviors of States shall consist in a regular practice; 2) they shall express, testify, in light of their nature or by the way in which they are implemented, the conviction that such practice has become in an obligation given the existence of a legal rule.273 This means that the acts considered shall not only represent a systematic practice but also be performed with awareness and conviction that they are carried out as an obligation arising out of a legal rule. As Gomez-Robledo rightfully pointes out: “The need of such a conviction, i.e., the existence of a subjective element, is embedded in the very notion of ‘opinio juris sive necessitatis’.

The States concerned shall have the feeling that they are conforming to what would be a legal obligation.”274 In the case of the judgment on the Gulf of Maine275, after the Court had determined that between the parties (the United States and Canada) there was Cf. ICJ. Recueil, 1969.

Cf. Gómez-Robledo Verduzco, Alonso, op. cit., p. 43-44.

273 Cf. ICJ. Recueil, 1969, p. 44, para. 77 274 Gómez-Robledo Verduzco, Alonso, op. cit., p. 44.

275 Cf. ICJ. Recueil, 1988.

271 272

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no conventional obligation which would have trace a unique boundary between their respective maritime zones, the Court believed that it had to examine whether the parties had established a legal obligation of such nature, as a result of other factors. In other words, “The question, which the parties have argued at length during the present case, is whether the conduct of the parties over a given period of their relationship constituted acquiescence by one of them in the application to the delimitation of a specific method advocated by the other party, or precluded it from opposing such action, or whether such conduct might have resulted in a ‘modus vivendi’ ”276.

The Chamber, upon discussing the matter, reviewed the concepts of estoppel and acquiescence, indicating that irrespective of the status of either one in international law, they stemmed from the principles of good faith and equity. The Court pointed out that these institutions stemmed from different legal reasoning, acquiescence is equal to a tacit recognition expressed through a unilateral behavior, which the other Party can construe as consent277; while estoppel, on the other hand, is connected to the idea of prescription. Except for the element of prejudice or harm which necessarily leads to estoppel, the Court believed it represented aspects different from a single institution.

The Chamber recalled that estoppel is a figure that is still in evolution and which requires conditions or requirements which are stricter than those of acquiescence in the sense that the party who so invokes shall ground its claim on the fact that the declarations or behavior of the other party are detrimental to it or beneficial to the other party. Such detriment and benefit therefore are essential elements that must concur for estoppel to be applicable278.

The case is illustrative. Canada started to grant in 1964, hydrocarbon exploration and exploitation permits in the Georges Banks, based on the median line that divided the jurisdiction with the United States in that area. The United States, on the other hand, believed that the granting of offshore permits by Canada was based only on Canadian domestic administrative acts that could not become acquiescence or configure estoppel at an international level. Amongst Canada’s arguments regarding United States own acts, which would have consented to the maritime delimitation through a median line, there were communications in Cf. ICJ. Recueil, 1988 p. 303.

During the trial, the Government of Canada defined acquiescence in the following terms: “When a Government, Party to a dispute, is aware, directly or by deduction, of the behavior of the other Party or the affirmation of rights that such Party makes and refrains from protesting when such behavior or such affirmation of rights occurs, it is tacitly accepting the legal position expressed by the behavior of the other party or by the affirmation of rights thereof.” In: Recueil, 1984., p. 304, para. 129.

278 Ibid., p. 308, paras. 141-148.

276 277

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which even the authorities of the Bureau of Land Management of the United States Department of the Interior had asked the Government of Canada on the connection between the granted permits area and the median line of delimitation established in the 1958 Geneva Convention, as well as the formal communication of 14 May 1965, the Hoffman Letter, in which according to Canada the United States had accepted the median line as the maritime boundary.

This communication was answered by the corresponding Department of Canada on 16 June 1965, which confirmed that the median line used had been the one construed in accordance with Article 6 of the 1958 Geneva Convention on the Continental Shelf. Throughout the proceedings the parties presented diplomatic documents, which according to Canada established the acquiescence of the United States and in any case were grounds for estoppel.

In general, in its presentations, the Government of Canada pointed out that the United States’ acts and behavior that should be considered as relevant are: a) Proof of a real acquiescence on its part, in connection with the acceptance of a median line as the boundary between the corresponding maritime jurisdictions, as well as estoppel which impeded the United States from opposing to the median line. b) The existence, even if it is only a hint, of the establishment of a modus vivendi or a de facto boundary that the two States had recognized and consolidated with their reciprocal behavior. c) Hint on the type of delimitation that both Canada and the United States considered equitable279.

After analyzing the arguments of either Party, the Chamber concluded in its judgment that the behavior of the States had been subject to argumentations in either sense, it could not be concluded that the United States would have expressed its acquiescence in the delimitation of the Georges Bank zone through a median line. At the same time, the Chamber pointed out that “it is probably true that the attitude of the United States on maritime boundaries with its Canadian neighbor had been characterized with uncertainties and lack of consistency, until the late sixties. This fact does not however impede us from confirming that the events alleged by Canada do not allow to conclude that the government of the United States had recognized once and for all the median line as the boundary between their jurisdictions on the continental shelf; this also allows us to conclude that the simple absence of reaction to the granting of Canadian exploitation permits in 1964 until the Aide Memoire of 5 November 279

GĂłmez-Robledo Verduzco, Alonso, op. cit., p. 140.

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1969, had as a legal consequence that the United States cannot in the future claim a boundary following the northeast channel.280 Moreover, the Chamber, after analyzing the facts, pointed out that it was not legitimate to consider that the United States had tacitly accepted the Canadian thesis or that it could have lost its rights. To conclude otherwise would mean going beyond the conditions set out in international law for acquiescence or estoppel 281.

Upon grounding its judgment, the Chamber wished to explain that its decision of not considering the conduct of the United States as an expression of acquiescence was adopted with the full understanding of the jurisprudence antecedents which in other cases had taken into account the behavior of the parties. In this sense, the Chamber pointed out that the antecedents of the judgments on fisheries in Great Britain vs. Norway, the case of Grisbadarna on delimitation of the fishing zones between Norway and Sweden, the matter of the Temple of Préah Vihéar, and the Arbitral Award of the King of Spain did not apply to the case of the Gulf of Maine. This was so because the duration or time of the States’ behavior was different in the case of fisheries; the pertinence of applying the Grisbadarne dispute to the present cases is arguable, since the rights on the exiting maritime spaces at the time were substantially different from those existing at the present time; because the case of Préah Vihéar has a very different nature; and because the Award of the King of Spain was based on express declarations of Nicaragua and long standing behaviors282.

In the judgment of the Tunisia/Libya case, the Court rendered an opinion on the behavior of the States. The Court pointed out that it had to “‘tenir compte de tous les indices existants au sujet de la ligne ou des lignes que les parties ellesmêmes ont pu considérer ou traiter en pratique comme équitables’[…] et elle a retenu en conséquence comme pertinent le fait qu’il s’était établi entre les parties une ‘ligne de facto’”283 [to take into account all of the existing hints on the line or lines that the parties themselves have considered or negotiated in practice as equitable […] and consequently, the Court has considered as pertinent the fact that the parties had established a de facto line.] Under this spirit, the Court recognized as valid the de facto line that Tunisia and Libya had established through the fishing permits that they each had granted284. Without prejudice, Weil points out that in this judgment, the Court did take into account the parties’ behavior not as a binding obligation per se but rather only as a pertinent circumstance in Cf. ICJ. Recueil, 1984, p. 307, para. 137.

Ibid., p. 308, para. 142.

282 Cf. ICJ. Recueil, 1984 pp. 309-310 paras. 146, 147.

283 Cf. ICJ. Recueil, 1982 para. 118 284 Ibid., para. 133 B2.

280 281

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terms of maritime delimitation law285. But even in this case, the author expresses a reasonable warning regarding the use of the parties’ behavior in maritime delimitation: Comme on eu l’occasion de l’observer, ériger le comportement des parties en circonstance pertinente susceptible d’établir l’équité ou l’iniquité d’une ligne d’équidistance risqué de faire glisser le droit de la délimitation maritime vers la prose en considération de l’effectivité. Il est peut-être significatif que, mis à part le recours discret à ce concept dans la sentence de 1985, la jurisprudence n’ait pas confirmé l’approche de Tunisie/Libye : non seulement Golfe du Maine a-t-il rejeté l’argumentation des parties fondée sur leur comportement antérieur, mais il a pris soin de préciser que l’équité ne requiert pas le maintien dans l’avenir des pratiques d’exploitation actuelles. On peut penser que désormais cette circonstance pertinent très discutable n’interviendra plus qu’exceptionnellement286 [As we have been able to observe, to raise the behavior of the parties under pertinent circumstances capable of establishing equity or inequity of an equidistant line, entails a risk of slipping delimitation right towards taking into account effectivités. This is perhaps significant that, beyond resorting discretely to this concept in the 1985 judgment, jurisprudence has not confirmed the approach of the Tunisia/Libya: the judgment in the Gulf of Maine case not only rejected the argumentation of the parties based on its prior behavior, but also was careful in pointing out that equity does not require in the future the continuance of the present exploitation practices. It is possible to think that heretofore this pertinent circumstance, quite arguable, shall only operate under exceptional circumstances.]

On the other hand, on the same issue of the Continental self between Tunisia and Libya (Judgment of 24 February 1982), the Court analyzed certain lines which had presumably been established unilaterally, both by Tunisia and Libya, through their own acts287. The Court observed that such lines had not been agreed upon, but had been established unilaterally. On this matter the Court determined that such delimitation traces could not be taken into account because “an attempt by a unilateral act to establish international maritime boundary lines regardless of the legal position of other States is contrary to recognized principles of international law”288 .

The Court, in support of this consideration, quotes in its judgment what it had already decided in an earlier judgment on fisheries (United Kingdom/Norway): The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, Weil, Prosper, op. cit., p. 273.

Ibid., pp. 273-274.

287 Tunisia was claiming ZV line (vertical zenith) 45° northeast, while Libya proclaimed a northward line which projected over the sea the last segment of the land boundary based on its Petroleum law No. 25 of 1955.

288 ICJ, Recueil, 1984, p. 66, para 87.

285 286

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because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.289

More recently, the judgment on the territorial and maritime dispute between Nicaragua and Honduras, judgment 8 October 2007, the Court has broadly referred to the behavior of the States in the context of the maritime delimitation and has insisted on the restrictive nature of its jurisprudence on this regard: L’établissement d’une frontière maritime permanente est une question de grande importance, et un accord ne doit pas être présumé facilement. Une ligne de facto pourrait dans certaines circonstances correspondre à l’existence d’une frontière convenue en droit ou revêtir davantage le caractère d’une ligne provisoire ou d’une ligne a spécifique, limitée, telle que le partage d’une ressource rare. Même s’il y avait eu une ligne provisoire jugée utile pour un certain temps, cela n’en ferait pas une frontière internationale290.

[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.]291

This judgment is meaningful, given the nature of the case —in its maritime component—, the Court had to decide upon, once again, a single boundary, which included the territorial sea, the exclusive economic zone, and the continental shelf. In addition, taking into account that Honduras based its claim that the boundary had already been delimited through parallel 14°59’8” North latitude (parallel No. 15) on both uti possidetis, which would have been recognized in the Gamez-Bonilla Treaty and the Award made by the King of Spain in 1906, and the tacit recognition that Nicaragua would have made of such boundary, the judgment makes and important analysis on the behavior of the parties before rendering a decision.

In its judgment, the Court denied the argumentation by Honduras on the existence of a historical boundary on parallel 14°59’8”, deciding that such boundary could not strive away neither from the uti possidetis principle, nor the provisions of the Gamez-Bonilla Treaty, nor through a tacit recognition based on the behavior of the parties.

289 Ibid., p.67, para. 87.

290 CIJ, Arrêt “Affaire du différend territorial et maritime entre le Nicaragua et le Honduras dans la Mer des Caraïbes”, 8 Octobre 2007.

291

Translated by the author.

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The Court recognized that parallel 14°59’8” had played some role in the behavior of the parties, particularly as of 1961, when both Nicaragua and Honduras granted a number of oil concessions that stated that their northern and southern maritime boundaries were along the parallel line 14°59’8”292. All the same, the Court acknowledged that the fishing regulations in the zone had accepted such parallel as the dividing line.293 Nevertheless, the Court believed that the acts of the parties regarding parallel 14°59’8” as the maritime boundary line or as the dividing line in the fishing zone were insufficient; neither its characteristics nor the short time in which such events occurred, would allow deducing the existence of a delimitation along the parallel.

Consequently, the Court declared that there was no tacit delimitation running on parallel 14°59’8”. When tracing the new boundary line, the Court analyzed the possibility of using the equidistance method and concluded that given the existence of special circumstances, in the sense established in Article 15 of the Convention on the Law of the Sea, such method was not applicable. The Court, always encouraging equity in the outcome, decided for the bisector line as the prevailing method for delimitation294.

The jurisprudence of the Court on the behavior of the parties as a source of binding obligations for maritime delimitation is certainly plural and heterogeneous, its acceptance depending on specific circumstances, the maritime spaces subject to the dispute, the nature of the their own acts, and especially the concurrence of several elements that international law requires in order to considerer that the behavior of the parties have generated rights and obligations that can be demanded, i.e., for acquiescence to be enshrined.

1. The behavior of acquiescence shall be tried on through inductive reasoning that takes into account sufficiently consolidated and convincing practices “and not just based on deductive interpretations originating in a priori preconceived ideas.”295 2. The practices shall be constant, systematic, and long-lasting within a reasonable time frame.

3. They must express an intention to act in accordance with a legal obligation which is assumed that it induces the behavior. This shall be reflected in the way in which the practices are carried out, as well as its content. This 292 293 294 295

Ibid., p.69 para. 256.

Idem.

Ibid., p.90, para. 320.

Cf. ICJ Recueil, 1984, p. 299.

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subjective element shall be expressed in a feeling of acting in accordance with a legal obligation296.

The specific case of the Peru-Chile dispute shows the complexity which is common to any maritime dispute regarding spaces recently included in international law and which is not necessarily limited to the territorial sea. This situation is even more heterogeneous in the behavior of the States, if we take into account that between 1947 and 1982, when the Law of the Sea Convention was approved, the behavior of Peru and Chile, as well as that of the other Latin American Countries that make up the South Pacific System, have long been driven towards the actions and political and diplomatic strategies aimed at getting the international community to recognize the unilateral claims in favor of a 200-mile zone of sovereignty and jurisdiction.

Only as of the eighties, when it was a negotiated evidence that the essential elements of the 200-mile thesis would be recognized by international law through the Law of the Sea Convention, did the concern of the lateral boundaries become more defined and recurring.

3. Peru and Chile’s Behaviors in Connection with the Maritime Dispute The acts corresponding to the behavior of Peru and Chile in connection with their maritime boundaries can be systematized, from a historical approach, into four major phases or stages: 1. Phase one, is the period corresponding to the claims on fishing rights in the “territorial seas” zone (1821-1947). During this phase there are no antecedes that would allow to determine the positions of either country with regard to the maritime boundary, nor are there practices that would allow to assume it did exist in implicit terms.

2. Phase two, dominated by unilateral and institutional claim of a maritime area of sovereignty and jurisdiction with an outer boundary of 200 nautical miles constant and the signing of an agreement for the exemption of penalties in favor of small artisanal fishing vessels of the two counties in the maritime frontier zone (1952 - 1954).

3. Phase three (1954-1980), characterized by the international momentum of the 200-mile thesis (outer limit) international; the entry into force of, in 1967, of the Agreement relating to a Special Maritime Frontier Zone of 1954, and the beginning of its practical application in 1972, when the construction 296

Gómez-Robledo Verduzco, Alonso, op. cit., p. 44.

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of the beacons or leading marks —aimed at providing guidance within the exemption zone for the activities of the artisanal fishing vessels— was completed.

4. Phase four, since 1980 until now, when with the evolution of international maritime law and the inclusion of essential elements of the 200-mile thesis in the international law of the sea, priority shifted towards lateral delimitation and to the defense of the contradictory positions that both countries argue on the maritime boundary. a) Phase One (1821 -1947)

In the first phase, sprouting in connection with the sovereignty of the new States over the sea adjacent to their coasts, there is an early concern for the use of the maritime resources in favor of the needs of the population and the interests of the State, particularly in Peru. On 6 September 1883, a Supreme Decree was approved to establish that the fishing of cetaceous and amphibious species in the beaches and islands of Peru was exclusively reserved to its citizens297. Such Decree grounded such measure on the fact that foreign vessels invaded “national property” and, also, deprived native people from performing their traditional activities. As a practical measure, it granted fishing and hunting permits, only available to Peruvian vessels. This provision shows the early concern of the State of Peru to preserve and use, in benefit of its populations, the marine resources.

Such decree did not establish the scope of application of such law not a limit on the sea adjacent to its coasts.

Supreme Decree of 5 august 1840 regulated specifically the fishing regime on the coasts and islands of the Republic, with the same logic of protecting the fishing industry and artisanal activities. Since the Decree of 1833 reserved the fishing industry only for Peruvian citizens, it prohibited such activities to any nonPeruvian vessel and established penalties for any vessel “caught fishing within the distance of one league outward of the points of the forbidden places.”298 This case further insists on the protection by the State of cetaceous species and the protective action against indiscriminate hunting, as well as protection of the national fishing industry, that were the key drivers of the subsequent claim in favor of a 200-mile jurisdictional sea in 1947.

In 1936, ninety six years later, the Civil Code established the first rules governing territorial waters: “The following belong to the State: the territorial sea and its Supreme Decree of 6 September 1833, Colección de Leyes y Decretos, Lima, 1883, p. 322.

Fishing Regime in the Coasts and Islands of the Republic. Supreme Decree 5 August 1840, Colección de Leyes y Decretos, Lima, 1840, p. 663.

297 298

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beaches and the adjacent area as set out in the Law on such matter.”299 The Constitutions of 1823, 1826, 1834, 1839, 1856, 1860, 1867, 1920, and 1933 did not include any reference to any maritime space subject to the sovereignty and jurisdiction of the State. The contiguous area refers to the legal system on land along the sea.

As we can confirm from the existing records prior to 1947, there are antecedents that would allow to determine the position of either country with regard to the maritime boundary; neither are there any practices that may lead to that conclusion, even in implicit terms; let alone, the existence of an international custom establishing a method for maritime delimitation in the region. This was the general rule in Latin America and around the world. The only space governed by territorial rights were the so called territorial waters, liken to the legal system under the understanding that they comprised three miles.

Since there were no practices on lateral delimitation between the two States, the great concern was now the outer boundary due to the indiscriminate whaling and the presence of foreign fleets that performed their activities in front of Peruvian and Chilean coasts taking advantage of the marine resources resulting from the hydro-biological system created by the Humboldt Current.

At the beginning of the 1940’s, artisanal fishing began developing and the first fish processing plants were set up. In 1939, there was only one fishing company registered. In 1945, the number was twelve, among which some quite important companies, such as Compañia Pesquera Coishco or Industrial Pesquera S.A.300 Entrepreneurs also established some institutional structures and, along with fishermen, suggested claiming sovereignty and jurisdiction over the adjacent sea, within a national vision on conservation and exploitation of the maritime resources. b) Phase Two (1947-1945)

The second phase begins with the proclamation by Chile and Peru of 200-mile national maritime zones; thereby beginning a process which would bring about deep changes around the world on the institutions of the law of the sea.

On 23 June 1947, the Government of Chile approved an official declaration, which had a political-diplomatic nature, signed by President Gabriel Gonzales Videla, which established a unilateral claim of sovereignty on the sea adjacent its coasts up to a distance of 200-miles. The declaration was inspired by the Truman Proclamation and Civil Code of Peru, 1936, Article 832, subsection 2 Cf. Trillo Pedro, Tord, Luis Enrique, “El Nacimiento de una Industria.” Libro de oro de la pesquería peruana, Lima, Sociedad Nacional de Pesquería, 2003, p. 94.

299 300

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by like initiatives adopted by the Governments of Mexico and Argentina, between 1945 and 1946, and was based in the need to keep for the State its ownership over the known natural resources and those to be discovered in the future and which are found in the continental shelf and in the sea adjacent to its coast. The decree is further substantiated in political and geographic considerations arising out of the topography of the Chilean territory and its lack of landlocked extension, which makes the life of the country to be connected to the sea and all present and future resources trapped in them, more than the case of any other nation301.

In the operative section of the declaration, Chile proclaims its sovereignty over the continental shelf adjacent to the continental coasts and islands in the national territory, irrespective of the depth and, at the same time, the national sovereignty on the sea adjacent to their 200 nautical mile zones.

The declaration points out that the limit of such extension is not final because the Government reserves the right to modify it. It further states that such claim of sovereignty shall be exercised without disregarding “similar legitimate rights of other States on the basis of reciprocity, nor does it affect the rights of free navigation on the high seas.”302 Article three explicitly refers to the outer limit of the claimed maritime zone: The demarcation of the protection zones for whaling and deep sea fishery in the continental and island seas under the control of the Government of Chile will be made in virtue of this declarations of sovereignty at any moment which the Government may consider convenient, such demarcation to be ratified, or amplified, or modified in any way to conform with the knowledge, discoveries, studies and interests of Chile as required in the future. Protection and control is hereby declared immediately over all the seas contained within the perimeter formed by the coast and the mathematical parallel project into the sea at a distance of 200 nautical miles from the coasts of such island, projected parallel to these islands at a distance of 200 nautical miles around their coasts.303

A 200-mile outer limit whose “demarcation” will continue being the mathematical parallel projected seaward to a distance of 200 miles from the continental coasts.

There is no reference to any delimitation clause for the lateral boundaries.

Nevertheless, in 1951 when the Government of Chile prepared the proposal of the Declaration of Santiago, originally called “Project on the Continental Shelf and its Superjacent Waters”304, in the part concerning the extension of the 301 Cf. Official Declaration of the Government of Chile, 23 June 1947. In: Orrego Vicuña, Francisco, Chile y el derecho del mar, Santiago de Chile, Editorial Andrés Bello, 1972, p. 33, preamble para.

302 Ibid., Article 4.

303 Ibid., Article 3.

304 Cf. Minutes of the First Meeting of the Conference on the Exploitation and Conservation of the

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200-mile zone, it used the same formula of the 1947 Declaration but adding a phrase that implied a method to determine the lateral boundaries, different and excluding the corresponding parallel of latitude: Article 3.- The indicated area comprises all of the waters within the perimeter formed by the coasts of each country and a mathematical parallel projected seaward to a distance of 200 nautical miles from the continental territories, following the coastline [emphasis added by the author].305

Here, a method for lateral delimitation is implicitly established to guarantee to all countries, under equal and equitable conditions, access to the 200 miles of sovereignty and jurisdiction, since, given the shape of their coasts, the projections of their maritime zones up to 200 miles in accordance with their coastlines implies the overlapping of the projections of Peru and Chile and, therefore, a negotiation that will allow to divide the space.

This text was finally excluded from the final Declaration of Santiago, probably because it was considered repetitive with the concept itself that each country was to enjoy 200 nautical miles off its coasts. In any event, what is important from the Chilean drafting of the original proposal of the Declaration of Santiago is that its understanding of the method of the parallel was excluded and that its vision on lateral delimitation followed the direction of the coastline. This is relevant too, in relation to the inexistence, at the time, of ideas or definitions consistent on lateral delimitation issues, as evidenced with Supreme Decree No, 781 of Peru. However, it is yet more significant as eloquent evidence that before 1952 there was no element present in the region that would lead to believe in the alleged existence of a customary right that would have adopted the delimitation rule of the parallel, as is the intention of some Chilean jurists and, eventually, the Legal Department of Chile.

On 1 August 1947, the Government of Peru approved Supreme Decree No. 781, signed by the President, Jose Luis Bustamante y Rivero, in virtue of which, Peru claimed its sovereignty over the continental shelf, irrespective of its depth and breadth, as well as an adjacent sea up to 200 miles.

In accordance with international law of the time, the decree, like the Chilean declaration, take a geomorphologic view of the continental shelf by extending its sovereignty and jurisdiction up to the physical extension of its structure. In neither document did the 200-mile extension include the continental shelf: Maritime Resources in the South Pacific, Proposal on the Continental Shelf and its Superjacent Waters.

305 Cf. First Conference on the Exploitation and Conservation of the Maritime Resources in the South Pacific, Minutes of the first meeting, proposal submitted by the Government of Chile: Declaraci贸n sobre z贸calo continental y las aguas que lo cubren., Article 3.

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1° To declare that national sovereignty and jurisdiction are extended to the submerged continental or insular shelf adjacent to the continental or insular shores of national territory, whatever the depth and extension of this shelf may be.306 2° National sovereignty and jurisdiction are exercised as well over the sea adjoining the shores of national territory whatever its depth and in the extension necessary to reserve, protect, maintain and utilize natural resources and wealth of any kind which may be found in or below those waters.307

The purpose of these two declarations, clearly stipulated in their corresponding whereas sections, was to establish a legal system for the adjacent sea up to 200 miles so as to guarantee the conservation and exploitation of the natural maritime resources, ensure marine economy for the benefit of their peoples and to protect their resources from foreign fishing and hunting.

Following almost the same rationale as the declaration of the Government of Chile, Article 3 stipulates that Peru reserves the right to establish the “demarcations” of the continental and island control and protection zones; at the same time, it declared that such control on the adjacent sea was exercised up to a distance of 200 miles. Like the Chilean declaration, it brings forward a criterion to measure the area of 200 miles in the zone comprised between the coasts and an imaginary line running parallel to the sea, adding that this “200 nautical mile zone shall be measured following the line of the parallels of latitude.” The text is the following: 3°. As a result of the previous declarations the State reserves the right to establish the limits of the zones of control and protection of natural resources in continental or insular seas which are controlled by the Peruvian Government and to modify such limits in accordance with supervening circumstances which may originate as a result of further discoveries, studies or national interests which may become apparent in the future and at the same time declares that it will exercise the same control and protection on the seas adjacent to the Peruvian coast over the area covered between the coast and an imaginary parallel line to it at a distance of two hundred (200) nautical miles measured following the line of the geographical parallels. As regards islands pertaining to the Nation, this demarcation will be traced to include the sea area adjacent to the shores of these islands to a distance of two hundred (200) nautical miles, measured from all points on the contour of these islands308.

Unlike the Chilean declaration which “demarks” its 200-mile area using only the concept of mathematical parallel (“protection and control is hereby declared Cf. “Supreme Decree N° 781 of 1 August 1947”. In: Revista Peruana de Derecho Internacional, No. 25 and 26, July-December 1947, p. 301.

307 Ibid., p. 301.

308 Ibid., p. 302.

306

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immediately over all the seas contained within the perimeter formed by the coast and the mathematical parallel projected into the sea at a distance of 200 nautical miles from the coasts of Chilean territory”) the Peruvian decree alludes that the imaginary line parallel to its coast, traced over the sea at a distance of 200 nautical miles, is measured following the parallels of latitude.

Clearly, the intention is not to establish a lateral boundary given that the use of the plural form to define parallels of latitude only implies the intention of projecting the zone 200 nautical miles off the coast up to the high sea. Obviously, in the Peruvian decree, the tracing of the 200-mile area would imply a lateral line along the parallel of latitude. This is contrary to its purpose and goal: to obtain a maritime area of 200 nautical miles constant of sovereignty and jurisdiction. On this point the Peruvian Decree of 1947 is evidently contradicting itself. There is a relation of exclusion between the object and purpose of the decree: to obtain a 200-mile zone; and the reference to the parallel of latitude as a guide to draw the extension of such zone. However, this provision, as well as the Chilean declaration, had in this aspect a provisional nature. The Peruvian decree is also specific in this sense.

The text reserves the State the right to establish the demarcation of the control and protection zones of the national resources of the continental and island seas under its jurisdiction309. The wording of the text in which the Peruvian State did not reserve the right to amend the demarcation is made in the future tense, which confirms its provisional reference to the parallel of latitude. In addition, this was an administrative act exclusively for domestic purposes, unilateral in nature, and as such could not establish an international agreement.

Supreme Decree N° 781 was amended by the Petroleum Law, No. 11.780, approved on 12 March 1952, four months before the negotiation of the Declaration of Santiago, which established as the outer limit of the continental shelf, 200 nautical miles constant measured from the low tide line. This law for oil exploration and exploitation purposes divided the territory into four areas, one of which was the continental shelf, which was defined as “(…) located between the western limit of the coastal zone and an imaginary line drawn at a constant distance of 200 miles seaward from the low-water line of the continental coast”310.

With this provision, the Government of Peru was decades ahead of the subsequent evolution of Maritime Delimitation Law by abandoning the geo-morphologic concept of the continental shelf, contained in Supreme Decree No. 781 of 1947, and replaced it by a legal conception based on the concept of distance. The geomorphologic structure of the continental shelf of Peru ranges from 2 to 70 309 310

Idem.

Petroleum Law No. 11.780, 12 March 1952, Article 14.

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miles. This is the distance implicitly referred to in Decree 781. The Petroleum Law extends Peru’s sovereignty and jurisdiction over the continental shelf up to 200 nautical miles.

Upon amending the provision of Decree 781 and proclaiming a 200 nautical mile constant projection for the continental shelf from the low tide line of the coastal profile, the Petroleum Law No. 11.780 assumed implicitly a delimitation rule excluding the parallel of latitude. This is not mentioned in its text. The projection of the Peruvian continental shelf up to 200 miles implied overlapping or superposing with the projection of the Chilean continental shelf, under the criterion of its projection based on distance. The Government of Chile at the time did not express any reservation or compliant by the provision set forth in the mentioned law.

The lack of precision of the States in the implicit treatment of the lateral delimitation of their continental seas is evidenced in these original domestic legal instruments with regards to the outer limit up to a distance of 200 miles, whose priority and almost exclusive concern was economic.

On 18 August 1952, the two countries, along with Ecuador, negotiated and approved the Declaration on the Maritime Zone or the Declaration of Santiago.

As has been seen, this international treaty in no event established a general delimitation rule applicable to the continental seas. On the contrary, its object and purpose, —that each signatory country has a constant 200-mile maritime zone off its shore— excluded by definition the parallel of latitude as a method to delimit the lateral maritime boundaries. The Declaration of Santiago only established a delimitation clause by the parallel of latitude for Peru and Ecuador, given the existence of Ecuadorian islands in an area smaller than 200 miles off the coasts of Peru. This provision, as we saw upon analyzing the text of the Declaration of Santiago, is an exceptional title, because it considers the existence of a special or pertinent situation: the presence of islands. If the intention of the Declaration of Santiago had been to establish a lateral delimitation clause, to be generally applied, it would have expressed it directly.

Along with the Declaration of Santiago, Peru, Chile and Ecuador approved other legal instruments mainly driven to the consolidation of their proclamation on the 200 miles and the preservation, defense, and organization of the fisheries in the South Pacific. These instruments, related to the institutional organization of the Permanent Commission for the South Pacific, the Regulation for submarine hunting activities in the waters of the South Pacific, the Complementary Convention to the Declaration of the sovereignty on the 200-mile maritime zone, the Convention on the system of sanctions, the Convention on the Measures on 177

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the Surveillance and Control of the Maritime Zones of the signatory countries, and the Convention on the granting of permits for the exploitation of the resources in the South Pacific, among others signed between 1952 and 1954, have no reference to the lateral boundary of the countries let alone to an alleged boundary of general application by the parallel of latitude. The Convention itself on the creation of the Permanent Commission for the South Pacific makes no reference to lateral boundaries nor does it confer upon the new organization any responsibility on the administration of boundaries or the power to solve the problems related thereto, although it is conferred the power to manage a record of the whaling companies, their floating station and land stations.

These instruments, when they refer to the maritime jurisdictions of either country, do so using a conception of maritime boundary not as a line —because the boundary maritime line was not established— but as a frontier zone in which sovereignties yet to be delimited coexist. The set of these regulations, as has been indicated, encourage the defense of the maritime resources and the fisheries organization and the related economic activities.

Hence, for example, Article 4 of the Regulation for whaling activities stipulates: “Pelagic hunting of whales could only be carried out in the maritime zone of jurisdiction or sovereignty of the signatory countries prior permit (…)”311.

Article 22 expresses on that same sense: “The captains of the vessels engaged in the whale hunting industry are compelled to immediately give notice by radio to the corresponding authorities if they become aware of the presence of whaling vessels or factory ships of foreign flag within the jurisdictional waters of the signatory countries (…).”312 Provisions of this sort are also present in the Convention on Measures on the Surveillance and Control of the Maritime Zones of the signatory countries: “Each signatory country is responsible of the surveillance and control of the exploitation of resources within its maritime zone through the agencies (…) may only be performed by each country within its jurisdictional waters. However, vessels or airplanes may enter the maritime zone of another of the signatory countries without special authorization if its cooperation has been expressly required.”313 Concerning provisions related to the jurisdictional exercise of the countries, if the boundaries had been established, they would have been expressly mentioned in these regulations. On the contrary, the concept of frontier zone is present implicitly in all of these rules.

311 Reglamento para las faenas de caza marítima en las aguas del Pacífico Sur. In: Ministry of Foreign Affairs, op. cit., p. 150.

312 Ibid.

313 Ibid., p. 160.

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The convention on the special frontier zone of 1954, as has been established, consisted of a neutral zone in which the small vessels could carry out their fishing activities without being arrested or penalized, but, as has been analyzed, it does not establish any maritime boundary or delimitation provision. The agreement for the establishment of leading marks for artisanal fishermen of 1968, as well as the technical documentation for its application, the 1968 report and the 1969 minutes did not establish —considering their nature, purposes and texts— any delimitation clause; although some of such documents do refer to, in general terms, the “maritime frontier delimitation”. The existence of this phrase in the 1954 Convention and the technical documents arising out of the 1968 Agreement cannot be construed as establishing a maritime boundary. They are rather references to the delimitation clause by exception included in Article IV of the Declaration of Santiago for the Peru-Chile case or to a reference boundary in the special maritime frontier zone that was established in 1954 to exempt from penalties the small fishing vessels. The use of such ambiguous terms in some cases seems natural for the time, given the lack of precision of the concepts and categories in the law of the sea that were used at the time.

These perceptions appear in an important legal provision, approved by the Government of Peru a year after the 1954 Convention and three years after the Declaration of Santiago, aimed at determining the scope of application and the outer limit of its 200-mile zone. On 12 January 1955, Supreme Resolution No. 23 on the delimitation of the 200-mile Maritime Zone was approved.

The express purpose of this norm was to determine the Peruvian maritime zone of 200 miles referred to in Supreme Decree of 1 August 1947, and the Declaration of Santiago. It was made because it was necessary to point out the cartographic and geodesic works so as to determine the 200-mile Peruvian Maritime Zone.

In its operative section, it establishes: 1° The specified zone is delimited at sea by a line parallel to the Peruvian coast and to a constant distance from such coast of 200 nautical miles.

2° In accordance with paragraph IV of the Declaration of Santiago, the abovementioned line must not cross the parallel which corresponds to the point at which the Peruvian frontier meets the sea.314 The text defines the perimeter of the maritime zone of Peru, in accordance with Supreme Decree No. 781, as amended by the Declaration of Santiago and compatible with its text under the following terms: “A maritime area between 314

Ibid.

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the coast and an imaginary line in the sea, parallel to the coasts, in such a way that between the imaginary line and coast there is a constant distance of 200 nautical miles.�315 The jurisdiction over the constant 200 miles in the entire littoral, excludes, in the boundary with Chile, any possibility of using the parallel of latitude for delimitation.

The second part of the operative section of Supreme Resolution of 12 January 1955 is consistent with this affirmation, since, as provided in the Declaration of Santiago, only reiterates that in the case of the exception set out in Article IV of the Declaration, the 200 nautical miles line could not surpass the one of the corresponding parallel to the point where the boundary of Peru and Ecuador reaches the sea. In other words, it keeps the exception of the delimitation provision by the parallel between the two countries given the existence of special circumstances: the presence of islands.

This resolution, also consistent with the provision of the Petroleum Law No. 11.780, which established the same criterion to measure the breadth of the submarine shelf, which was made expressly compatible with the text of the 1947 Decree with the Petroleum Law and the Declaration of Santiago. The reference to constant 200 miles, measured from the coast, excludes the possibility of establishing a lateral boundary with Chile through the parallel of latitude. The Government of Chile has full knowledge of such rule. It did not lodge any reservation or complaint whatsoever.

Obviously, if the understanding of the Government of Peru regarding the 1954 Convention had been such that it would have been deemed to establish a maritime boundary with Chile, the Supreme Resolution of 18 August 1952 would have invoked, quoted, and taken into consideration such fact. Conversely, since this is not the understanding in Peru, the 1954 Convention is not mentioned in Resolution No. 23, which confirms that this convention only established a penalty exception zone in favor of artisanal vessels.

In this initial phase of the maritime claims of Peru and Chile in order to expand their sovereignty and jurisdiction up to 200 miles so as to defend their economic interests and natural resources, the priority of their Governments was their outer limit. No delimitation clauses of boundaries were established between Peru and Chile. Implicit references that can be drawn from several instruments regarding initial appreciations, necessarily provisional on lateral delimitation, are isolated, unilateral, and without any legal effects for international law and also contradictory, even in the acts of each country. The extremes are given by 315

Ibid.

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reference to the parallel of latitude in a Peruvian Supreme Decree of 1947 and the coastlines in the original proposal of the Declaration of Santiago presented by the Government of Chile.

Based on the behavior of the parties, it is possible to affirm that for Peru and Chile the proclamation of 200 nautical miles constant from the coasts implied sovereignty and jurisdiction over an area of such distance that had to be materialized uninterruptedly throughout their corresponding coastlines. This necessarily implied, given the configuration of their coasts, an overlap of their corresponding projections.

Regarding the legal nature of the 200-mile zone, there was neither unanimity nor agreement, not even inside each country. But this was common place throughout the entire region, given the incipient development of the law of the sea and the confrontational nature with which the big powers reacted to the Declaration of Santiago.

Amadeo Drinot Delgado, when comparing between the Truman declaration and the subsequent Latin American declarations, clearly shows the situation in search for principles, rules, and institutions which did not yet exist at the end of the forties or beginning of the fifties: Although it is true that the two types of declarations are aimed at impeding the depopulation and destruction of the fishing fields, it is possible to notice a clear difference between the two because the Latin American nations have taken their rights significantly further than the US Proclamation. Very briefly, and following Gidel, we shall review some of such differences. Starting from the view point of the legislative technique we find the first distinction: where the Latin American States have included in one text the concerns over fisheries and the natural resources, the Government of the United States has issued two Proclamations to address such matters. A second difference refers to the determination of the distance up to where coastal States can exercise the rights they are proclaiming.

It is the procedure followed by Latin American countries. Hence, we can see that Mexico has pointed out the isobath of 200 meters for its continental shelf as a measure to protect its resources. Peru and Chile, on the other hand, have established a 200-mile zone of sovereignty from the seashore towards the high seas, such distance can be changed at any time. The United States, instead, as we have seen, did not fix any measure on this specific issue.316

The Truman Declaration had a significant impact on the concern of the Latin American countries over indiscriminate fishing and hunting in their adjacent seas. When the United States claimed jurisdictional rights over the continental 316 Drinot Delgado, Amadeo “Problemas jurĂ­dicos vinculados a la plataforma submarina.â€? In: Revista Peruana de Derecho Internacional, vol. XII, 1952, p. 189.

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shelf, it opened the way for the Latin American thesis —much more audacious than the US thesis— to be expressed in the international scenario.

In this way, with their unilateral proclamations of 1947, Peru and Chile went ahead with their claim of 200 miles by approving, along with Ecuador, the Declaration of Santiago. They did so also within the scope of the joint action against indiscriminate whale hunting and fishing by foreign vessels with the Regulations on maritime hunting in the waters of the South Pacific. And, finally, they did so within the scope of mutual cooperation in the maritime frontier zone, with the approval of the 1954 Agreement relating to a Special Maritime Frontier Zone.

Certainly, this Agreement includes a reference to the pre-existence of a maritime boundary which, however, had never been established earlier. On this regard, there are opposing interpretations between Peru and Chile. Chile asserts the preexistence of the boundary, while Peru asserts that such reference only alludes to an exception contained in Article IV of the Declaration of Santiago, i.e., to the pre-existing maritime boundary between Peru and Ecuador. The 1954 Agreement did not enter into force until 1967, when Chile ratified it. During that thirteen year period it was not only not in force, but it was never enforced either. As a consequence, the maritime frontier zone regime did not differ from the one of the previous period. This means, that such area was not subject to any specific regulation.

Any practice that can support the hypothesis of a customary law that would have established a delimitation method for the lateral maritime boundary between the two countries is inexistent during this period. Nor can it be determined that there were any records of communications, declarations, or diplomatic correspondence in which the countries have made any reference to the lateral maritime boundary, beyond the one included in the 1954 Agreement. During this time, fishing activities in the frontier zone were governed by the domestic laws of either country. c) Phase Three (1954-1980)

The third period runs from 1954 to 1980. During this phase, between 1954 and 1967, the status quo continued without there being a specific regime for fishing activities nor any administrative acts of any sort by the parties in connection with the lateral boundary issue. During this phase, the 1954 Agreement was a valid legal instrument but not in force, since it would only enter into force in 1967.

After that year, the Agreement enters into force, but it was only enforced after 1972, when the building of range beacons to guide fishing vessels was completed.

After 1972, the agreement is implemented through the leading marks of beacons 182

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or lighthouses which were installed as a result of the understanding agreed upon in virtue of the exchange of notes in 1968. Nevertheless, with time, the functionality of such beacons aimed at signaling the limits of the special area of exemption of penalties stopped being useful by the gradual inclusion of modern navigation instruments in the small fishing vessels. With the destruction of the leading mark or lighthouse installed in Peruvian territory caused by an earthquake in June 2001, and the subsequent clean-up of the debris, the 1954 Agreement continued to be applied in the special maritime frontier zone, but without using beacons or lighthouses which were replaced by modern guidance instruments.

At the same time, the countries were still concerned about the international negotiations on the law of the sea, especially, the meetings of the Conference on the Law of the Sea in 1958 and 1960. There is no record on Peru’s or Chile’s position, nor any diplomatic documentation making any reference to lateral delimitation, and each country undertook its own 200-mile constant projection.

The Ministries of Foreign Affairs worked jointly in defending and promoting the 200-mile thesis and the inclusion of other countries to the maritime system established in the Declaration of Santiago. To this end, the parties sign in Quito on 6 October 1955 the Protocol of Accession to the Declaration on the Maritime Zone, signed in Santiago317.

This protocol is based on the inexistence of lateral boundaries, for this reason the provisions on accession included one on the freedom of countries to determine their maritime boundaries based on the reality of the profile of their coasts and their geography.

The protocol opens the Declaration of Santiago to the accession of the other American States and establishes the terms and conditions, accordingly. One of such clauses included an agreement on the right of countries to determine their breadth and boundaries of the maritime zone, this was declared compatible with the text and the obligations stipulates in the declaration. The reference to “extension” refers to the outer limit and the expression “boundaries” to lateral boundaries. The text of such provision so establishes in an express manner when referring to the right of each state to establish “(…) the extension and form of delimitation of their corresponding zones, whether regarding a portion of or its entire littoral.” The full text of this clause recognizes each state’s freedom to choose the methods or the delimitation provision of their lateral boundaries —this confirms that the Declaration of Santiago did not establish nor prejudge such boundaries— is as follows: 317 Cf. Protocol for Admission to the Declaration of Santiago on “Maritime Zone”, Santiago, 6 October 1955. In: Ministry of Foreign Affairs of Peru, op. cit., p. 178.

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The three Governments (Chile, Peru and Ecuador) declare that the adhesion to the principle stating that the coastal States have the right and duty to protect, conserve and use the resources of the sea along their coasts shall not be constrained by the assertion of the right of every State to determine the extension and boundaries of its Maritime Zone. Therefore, at the moment of accession, every State shall be able to determine the extension and shape of delimitation of its respective zone —off its coastline, partially or in its entirety— according to the particular geographic conditions, with the extension of every sea and the geological and biological factors that determine the life, conservation and development of the maritime fauna and flora in its waters.318

This clause is an authentic interpretation of the Declaration of Santiago, which establishes that except for the exception contained in Article IV, each State has the right to determine the way in which it will determine its maritime boundaries on “a portion of or its entire zone”, in light of its geographic reality.

During this phase, in which a significant provision on the interpretation of the Declaration of Santiago is accorded, the 1954 Agreement relating a Special Frontier Zone could not be applied since it only entered into force thirteen years after its signing, in 1967, when the Government of Chile ratified it. Its approval and ratification were materialized through decrees of 16 August and 21 September 1967. Neither of these decrees nor the communication form the Chilean Embassy to the Secretariat of the Permanent Commission for the South Pacific have any reference whatsoever that such agreement has established a maritime boundary319.

Throughout these years, the parties exchanged communications on protests for the intrusion of vessels of either country into the maritime zone corresponding to the other Party. Hence, on 26 May 1965, the Embassy of Peru presented a memorandum to the Ministry of Foreign Affairs of Chile in which Peru protested against the incursion of vessels from that country up to the La Yarada beach. This communication referred to the territorial sea of Peru. In it, the Peruvian Embassy, on behalf of its Government, suggests the idea that “the two countries build, on their corresponding coasts, [the idea of the frontier as a frontier zone remains] a beacon each, no more than five kilometers away from the frontier line.”320 The Ministry of Foreign Affairs of Chile replied through Note D.F.D.L. No. 4 of 4 June 1965, under the following terms: The Ministry of Foreign Affairs has taken with interest the suggestion made by the Government of Peru, in the sense of building leading marks in the vicinity Ibid.

Cf. Permanent Secretary of the Commission for the South Pacific, Official Letter 420/70 addressed to the President of the Peruvian Section of the Permanent Commission for the South Pacific, 6 October 1970.

320 Embassy of Chile, Note 81, 8 March 1968.

318 319

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of the international boundary line. However, a solution of such nature can only be adopted after knowing what the pertinent technical criterion is and which shall be informed to this Ministry as soon as possible.”321 On 6 October, Chile sent a similar Note of protest, this time due to the presence of Peruvian vessels322.

None of such communications include any reference whatsoever to the maritime boundary, let alone to the parallel as a delimitation provision. However, it does refer to the jurisdictional zones.

In 1968, the parties agreed to build such beacons, by exchanging Notes of 6 February and 8 March 1968. In the first Note, the Government of Peru informed Chile that […] this office deems convenient for both countries […] to proceed to build posts or signs of considerable dimensions and visible at great distance, at the point at which the common boundary reaches the sea, close to boundary marker 1”; adding that “if the Honorable Government of Chile agrees with this proposal, I would very much appreciate to let me know, as well as the name of the technician to be appointed in order to have a meeting on the ground with the technician appointed by the Government of Peru with the purpose of building the abovementioned signal.323

The reply by Chile, which concurred to the forming of the agreement, was delivered on 8 March 1968 under the same terms: I have the honor to answer Your Excellency’s Note No. (J): 6-4/9 of 6 February, informing that, as a result of the conversations held in Lima between Peruvian and Chilean authorities on frontiers and limits, it was deemed convenient for both countries to build posts or signs of considerable dimensions and visible at great distance, at the point at which the common boundary reaches the sea, close to boundary marker No. 1. On this regard, I can inform Your Excellency that my Government finds your proposal […] acceptable324.

The agreement arrived at by such exchange of Notes is straightforward and precise: to build reasonably big leading marks visible at a great distance to guide artisanal fishermen at the point where the common land boundary reaches the sea, close to Boundary Marker Number one. The Notes do not point out an alleged intention of establishing a maritime boundary through the parallel. The object and purpose of the agreement is simply the building of such leading marks or beacons. When such understanding was implemented, the technical experts, as has been explained, prepared a report and a minute recording their field work, in which they refer to “signaling of the maritime boundary” Cf. Ministry of Foreign Affairs of Chile Note DFDL. No. 4 of 4 June 1965.

Cf. Ministry of Foreign Affairs of Chile, Memorandum of 6 October 1965.

323 Cf. Ministry of Foreign Affairs of Peru, Note of 6 February 1968.

324 Embassy of Chile in Lima, Note 8 March 1968.

321 322

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inappropriately, an issue that was not part of the agreement not the mandate given by the Governments to perform their technical tasks.

The beacons aimed at guiding artisanal fishing vessels in the frontier zone did not start operating until 1972. During all this time, artisanal fishing continued under the provisions of domestic laws and by the provisions of the 1954 Agreement regarding the permits to perform fishing activities in the Special Frontier Zone and the non arrests and application of penalties.

During this time there are no inter-State agreements or defined and constant practices that would allow to affirm that there were customary delimitation rules for the corresponding maritime international jurisdictions and let alone that they refer to the parallel of latitude. There were regular practices by artisanal fishermen who, given the case, accepted the 1954 Agreement to avoid penalties in such special maritime frontier zone. Likewise, such practices and other naval practices triggered administrative actions from either side regarding the limit of the zone of exemption from penalties. Some of them show inconsistent or inappropriate use of the language.

Between 1972 and 1980, the situation continued along those lines and without either country intending to claim the existence of any lateral maritime delimitation. The overlapping problem of the corresponding projections was not discussed, perhaps because the two countries were focused on leading negotiation efforts within the framework of the final phase of the Third United Nations Conference on the Law of the Sea. Their priority was to achieve modalities that would allow their unilateral claims of 1947 to be included in international law and in this way enshrine the 200-mile thesis as part of a global conventional agreement.

In short, during this phase coordinates and joint actions between the two countries were reinforced within the scope of the final phase of the process where such negotiation efforts were successful in the Third United Nations Conference on the Law of the Sea, which enshrined the South Pacific countries’ 200-mile thesis. Along with the recognition by the law of the sea of new spaces subject to the sovereignty and jurisdiction of a State, this new concept created a new situation, which led to shift concerns and priorities from claiming the outer limit to the problem of the lateral delimitation. d) Phase Four (1980-present)

In 1980, based on the progress of the negotiations at the Law of the Sea Conference and in light of specific consultations regarding the rules for delimiting the new spaces which had been recognized in the draft convention, 186

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the delegation of Peru made a specific intervention on this matter, suggesting for the first time its vision on the lateral delimitation of adjacent continental seas.

Ambassador Alfonso Arias-Schreiber, president of the Peruvian delegation, expressed at the conference on 27 August 1980: […] With respect to the criteria on delimitation of the territorial sea, the exclusive

economic zone and the continental shelf between States whose coasts are adjacent, Peru considers that, in the absence of a specific delimitation convention expressly agreed upon on that specific matter to definitely establish the limits of such zones, and where there are no special circumstances nor historical rights recognized by the parties, the median line or the equidistance line should apply as a general rule, because this is the most appropriate manner of arriving at an equitable solution, being this criterion well reflected in the present articles of the integrated text.325

The debates over maritime delimitation rules during the conference, within which Ambassador Arias-Schreiber made his intervention, the delegation of Chile made no reference whatsoever to the position expressed by Peru nor did it make any reservation of its position thereto. Nor did it affirm the existence of any boundary between the two countries.

In the case of Chile, the internal debate on the legal nature of the maritime zone evolved simultaneously to the progress of the negotiations on the Convention on the Law of the Sea. From the initial positions, which considered the maritime zone as territorial sea, there was a movement towards an understanding that was fully compatible with the new institutions that the draft convention already conveyed as universal consensus.

In 1977, after the second period of sessions of the Conference on the Law of the Sea, the works were decisively driven towards recognizing three main maritime spaces: territorial sea, continental shelf, and exclusive economic zone.

Chile was the first country in the South Pacific to interpret the Declaration of Santiago in such terms as to consider the 200-mile extension as patrimonial sea.

In this sense, on 14 July 1977, and executive decree was approved determining the baselines of a 12-mile territorial sea326. Such decree did not refer to the continental shelf or the exclusive economic zone. Evidently, this recognition of 12-mile territorial sea meant that the remaining 188 miles corresponded to a functional sovereignty with an economic nature.

In 1982, the negotiation on the Third Conference on the Law of the Sea ended and the convention was approved. Upon signing it, the Government of Chile President of the delegation of Peru, Declaration before the Third United Nations Conference on the Law of the Sea, Geneva, 27 August 1980.

326 Cf. Republic of Chile, Executive Decree, 14 July 1977.

325

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made a statement in which it pointed out that the 200-mile economic sovereignty zone established in the convention has considered, in his view, the terms of the claim made in that sense by the 1947 Declaration327. At the same time, Chile made a reservation on its position regarding the tribunal that had been established in the convention to settle jurisdictionally any delimitation dispute. Probably, such exclusion was made taking into account the absence of a maritime delimitation with Peru.328 The approval of the Convention on the Law of the Sea enshrined, in general terms, the 200-mile thesis that in 1947, Peru and Chile had unilaterally proclaimed; as well as the tripartite claim which together with Ecuador was made in 1952 upon approving the Declaration of Santiago. For the first time in history Conventional Law recognized the 200-mile rights of sovereignty and jurisdiction in four different spaces in terms of their breadth and legal nature: territorial sea, contiguous zone, continental shelf, and exclusive economic zone. These spaces did not have the same legal nature as the maritime zone referred to in the 1952 Declaration of Santiago; let alone the small maritime frontier zone of exemption of penalties established by the 1954 Agreement as of mile 12.

In a pending lateral demarcation —given the overlap of the corresponding maritime areas—, like that of Peru and Chile, the inclusion of such maritime spaces in international law, had necessarily to produce developments within the scope of the positions of the two countries regarding the delimitation or their common maritime boundary. The two countries had this same understanding.

From this moment, the issue of lateral delimitation became a standing issue in bilateral relations, being increasingly expressed, through opposing and excluding positions between the two countries.

The Government of Peru sent, on 23 May 1986 a special envoy in order to discuss and encourage the opening of negotiations to establish the maritime boundaries.

In this demarche, the Government of Peru expressed that the arrangements established in 1954 and implemented as of 1972, which had established the exemption of penalties zone, had fulfilled their goal, but in the light of the new advances in the Law of the Sea, as of the approval of the Convention of the Law of the Sea, the time had come to delimit the maritime frontier. At the end of the interview between the special envoy and the Minister of Foreign Affairs of Chile, the Embassy of Peru delivered to the Ministry of Foreign Affairs of Chile Note 5-4-M/147 a memorandum in which it explained the position of Peru. The key points of this communication pointed out: 327 328

Cf. Law of the Sea Bulletin, N° 5, July 1985, p. 9.

Ibid.

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[…] Currently, the existence of a special zone —established by the “Agreement relating to a Maritime Frontier Zone”— referred to the line of the parallel of the point at which the land boundary must be considered as a formula which, although it fulfilled and fulfils the express object of avoiding incidents with “seafarers with scant knowledge of navigation” is not adequate to satisfy the safety requirements nor for the better attention to the management of marine resources, with the aggravating circumstance that an extensive interpretation could generate a notorious situation of inequity and risk, to the detriment of the legitimate interests of Peru, that would appear seriously damaged.

The definition of new maritime spaces, as a consequence of the approval of the Convention on the Law of the Sea, which counted with the vote of Peru and Chile, as well as the incorporation of its principles into the domestic legislation of the countries, adds a degree of urgency, insofar as both States shall have to define the characteristics of their territorial seas, contiguous zones and exclusive economic zones, as well as the continental shelf, that is to say, the seabed and subsoil of the sea, also up to 200 miles, including the reference to the delimitation of those spaces at international level.

The current ‘200-mile maritime zone’ —as defined by the Meeting of the Permanent Commission for the South Pacific in 1954— is, with no doubt, a space that differs from any of the abovementioned zones, in respect of which the domestic legislation is almost non-existent as far as it concerns to international delimitation. The only exception might be, in the case of Peru, the Petroleum Law (No. 11780 of 12 March 1952), which established ‘an imaginary line traced seaward at a constant distance of 200 miles’ as outer limit for the exercise of the State competences over the continental shelf329. This law is in force and it is worth noting that it was issued five months before the Declaration of Santiago.330

The Government of Chile, upon receiving such proposals, did not state that the boundary had already been established; let alone that it had been done so through the parallel. Aware that delimitation had not yet been established, all Chile did was name the competent agencies that would assess the Peruvian proposals. This was recorded in an official communiqué from the Ministry of Foreign Affairs of Chile of 24 May 1986. The text of such communiqué is quite relevant since it implicitly assumes that there is no maritime boundary between the two countries: With regard to the information reported by the press regarding the fact that Peru and Chile would be undergoing negotiations on the maritime delimitation between the two countries, the Ministry of Foreign Affairs of Chile must point out the following: Petroleum Law No. 11.780 of 12 March 1952.

Embassy of Peru, Note 5-4-M/147 addressed to the Ministry of Foreign Affairs of Chile, Santiago de Chile, 23 May 1986.

329 330

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1.- The Peruvian Ambassador, Juan Miguel Bákula, recently visited the Ministry of Foreign Affairs of Chile, on that occasion we addressed the participation of the two counties in the Permanent Commission for the South Pacific, as well as the need to reinforce the actions of such entity.

At such meeting, we also exchanged viewpoints on Chile’s position to the Fishery Development Latin American Organization (OLDEPESCA).

2.- During this visit, Ambassador Bákula conveyed the interest of the Government of Peru to begin in the future talks between the two countries on the viewpoints regarding the maritime delimitation.

The Ministry of Foreign Affairs, taking into account the good relations between the two countries took not thereof and expressed that in due time studies would be done on that regard.331

The communiqué is straightforward. It shows that the understanding was that there were no maritime boundaries between the two countries, for this reason it decided to study the Peruvian proposal. If they had been convinced that the boundaries had already been established, the Ministry of Foreign Affairs of Chile would have so stated, dismissing the Peruvian proposal and under no circumstance would it have decided to submit the matter to a study.

Subsequently, that same year and in all probability in connection with the discussion described above, the Government of Chile took the initiative to introduce in its laws the provisions of the Convention of the Law of the Sea. On 13 October 1986, Chile approved Law 18.565, Amending Provisions of the Civil Code; this time to include the spaces recognized by the Convention on the Law of the Sea. The new wording of Articles 593 and 596 of the Civil Code is as follows: Article 1.- The following amendments shall be made to the Civil Code: 1.- Replace Article 593 by the following text: ARTICLE 593 . - The adjacent sea, up to a distance of twelve nautical miles from the corresponding baselines is territorial sea and under national domain. However for matters concerning the prevention and penalties of the infringements to the law and regulations, fiscal, immigrations and health, the State shall exercise its jurisdiction over a maritime space called contiguous zone, which runs up to a distance of twenty-four nautical miles, measured in the same way.

2.- Insert as Article 596 the following text: ARTICLE 596.- The adjacent sea, up to a distance of twelve nautical miles from the corresponding baselines from which the breadth of the territorial sea 331

Ministry of Foreign Affairs of Chile, Press Release, Santiago de Chile, 24 May 1986.

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is measured, and beyond the latter, is called exclusive economic zone. In it the State exercises its rights of sovereignty to explore, conserve, and manage living and non-living natural resources present in the waters adjacent to the seabed, on the seabed and subsoil, and to develop any other activity in view of the economic exploration of this area.

Article 2.- Maritime delimitation referred to in Articles 539 and 596 of the Civil Code shall not affect the maritime boundaries in force.332

In this Article 2 reference is made to the “maritime boundaries in force.” In principle, this clarification is unrelated to the subject matter of the Code, which referred to the outer limits and not the boundary with other countries. Most likely, this phrase was included in order to, for the first time, affirm the existence of boundaries between the two countries, although expressed in general terms and not in nominal ones. It is meaningful that this reference was made five months after the completion of the mission of Peru’s envoy who proposed to commence talks in order to proceed to the maritime delimitation in accordance with the new spaces created by the Convention on the Law of the Sea. On 28 August 1991, the Government of Chile passed Law No. 19.080. This provision amended the General Law on Fisheries and Agriculture No. 18.892. The new law included a section on definition, among which it included a definition for presential sea: Presential sea: is the part of the high sea, existing for the international community, between the boundary of our continental exclusive economic zone and the meridian which crossing on the western edge of the continental shelf of Easter Island, extends out from the parallel of Boundary Marker No. 1 of the international boundary line which separates Chile and Peru, up to the South Pole.333

In this law the Government of Chile presented its thesis on the existence of maritime boundaries in a more precise manner that Law No. 18.565. First, for the first time, reference is made to parallel of Boundary Marker No. 1 as a boundary line (“[…] extends out from the parallel of Boundary Marker No. 1 on the international boundary which separates Chile and Peru […]”)334. It is not until 1991, and with a domestic law, that the Government of Chile began to affirm that the maritime delimitation would run through the parallel of Boundary Marker No. 1 on the land boundary. Second, through this law, Chile included in the presential sea a big space of ocean of the maritime domain of Peru by introducing in this way the second component of the dispute by enacting laws Law 18.565, Amending Provisions in the Civil Code, 13 October 1986.

Republic of Chile, Law 19.080 334 Ibid.

332 333

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applicable in space that is Peruvian sea which is beyond the scope of Chile’s maximum aspiration.

These unilateral acts do not give the State of Chile any right, as it has been pointed out by the International Court of Justice, the first rule on the delimitation of maritime spaces between neighbor states is that such delimitation shall be achieved by an agreement between the parties335. There is no unilateral maritime delimitation.

On 21 September 2000, the Government of Chile deposited with the Office of the Secretary General of the United Nations, pursuant to paragraph 2 Article of 16 and paragraph 2 of Article 84 of the Convention on the Law of the Sea, a set of nautical charts in which it established the boundaries of its 200 mile maritime zone, including the tracing of its maritime boundaries. One of them is Chart N° 6, entitled Rada de Arica a Caleta Matanza, which included Chile’s projections towards the high seas starting from the normal baselines, and depicting its lateral maritime boundaries. The chart shows the existence of an alleged maritime boundary with Peru following the parallel line 18°21’00”.336 The Government of Peru, upon learning about such communication, immediately issued a protest declaration and a reservation delivered to the Office of the Secretary General of the United Nations. In such declaration, Peru pointed out that: To date Peru and Chile have not concluded, pursuant to the applicable rules of international law, a specific treaty on maritime delimitation; therefore the indication that parallel 18°21’00 is a maritime boundary between the two States has no legal grounds337.

In that same communication, once again Peru expressed its desire to establish such boundaries through diplomatic negotiations: In this regard, the Government of Peru, in Note No. 5-4-M/147 of 23 May 1986, conveyed to the Government of Chile its official position on the need to go ahead and give formal and final delimitation to the maritime spaces between the two countries; this communication was recently reiterated through Note RE(GAB) No. 6-4/113 of 20 October 2000, as it is a pending issue;” and concluded that: “As a consequence, the Government of Peru does not recognize the indication that the parallel line is a maritime boundary between Peru and Chile.338 Cf ICJ, Recueil, 1984, pp. 311 - 312, para. 154.

Cf. Office of Legal Affaire, Division for Ocean Affairs and the Law of the Sea, 2001; Servicio Hidrográfico y Oceanográfico de la Armada Chilena, Rada de Arica a Caleta Matanza, líneas de base normal, mar territorial de 12 millas, zona contigua de 24 millas, zona económica exclusiva y plataforma continental, 2000.

337 Permanent Mission of Peru to the United Nations, Note 7-1-SG/005 9 January 2001.

338 Ibid.

335 336

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Before then, the Government of Peru had expressed its disagreement with Chile’s intention of tracing the maritime frontier through the parallel of latitude 18°21’00” in a bilateral Note, which read as follows: Regarding this matter, the Ministry of Foreign Affairs hereby conveys its disagreement with the cartographic tracing of that line and with the indication made on the abovementioned Nautical Chart, since there is no specific treaty for the delimitation of the maritime boundary between the two countries; and, in consequence, it should reiterate the considerations indicated in Note No. 5-4M/147 of 23 May 1986, handed by the Embassy of Peru in Santiago to the Honorable Ministry of Foreign Affairs of Chile.339

That exchange of direct communications between the two Ministries of Foreign Affairs and through the Office of the Secretary General of the United Nations, the juridical dispute was substantiated, based on the attitude of the Government of Chile in asserting based on these communications the existence of a maritime boundary through parallel 18°21’00”. In this way, the critical date for the dispute is 21 September 2000 (Note by Chile to the Office of the Secretary General of the United Nations) and 20 October 2000 (Note by Peru to the Ministry of Foreign Affairs of Chile expressing its disagreement). It is on this critical date that the dispute arose as per the definition given by the International Court of Justice in the Judgment on the Palestine/Mavrommatis case340, i.e., as a disagreement of interests or thesis expressed in opposing or contradictory positions.

A few weeks after such declaration of reservation and protest by the Government of Peru with the United Nations, Chile’s Navy placed a surveillance booth within Peruvian territory, in the vicinity of Boundary Marker No. 1 of the land boundary. This event does not have any apparent logical explanation, because there was an agreement not to place surveillance booths near the boundary line.

It seems to find its explanation as an action redirected to create a favorable situation to the Chilean thesis of the existence of maritime boundaries. If this were the case, they would not have acted in good faith.

When the Government of Peru found out about this, it immediately sent a Note of protest on 10 April 2001, signed by the President of the Council of Ministers and Minister of Foreign Affairs, Javier Perez de Cuellar. In it Peru expressed its surprise for the placement of such booth in its territory and asked the Government of Chile to remove it immediately, along with any police patrols in Peruvian territory341. Previously, the Government of Peru had sent a technical Permanent Mission of Peru to the United Nations, Note RE (GAB) No. 6-4/113, 20 October 2000.

ICJ, Judgment Number 2, series A, No. 2, No. 11.

341 Ministry of Foreign Affairs, Note No. 6/23 addressed to the Ministry of Foreign Affairs of Chile, 10 April 2002.

339 340

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mission to the boundary line, with the mandate of confirming in situ the location of the surveillance booth in a sector of the boundary between Boundary Marker No. 3 and Boundary Marker No. 1. The outcome of the topographic and geodesic surveys confirmed that the Chilean booth was located on Peruvian territory, at fifty two meters to the north of the boundary line demarcated in 1930 and at thirty five meters south of the parallel used as reference for the marks place in accordance with the 1968 Agreement. The next sketch map shows the location of the Chilean booth in Peruvian territory, as well as the distance between Boundary Marker No. 1 and the starting point of the land boundary on the seashore, which is 245.41 meters.

BO

RD

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SKETCH MAP OF THE LOCATION OF THE CHILEAN BOOTH

L

LE PARAL

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ON CH

BEAC

Pacific Ocean KEY Boundary Marker International boundary Chilean Booth

Cartographic design: Grupo Geo Graphos 2007

The incident with the booth once again substantiated the juridical dispute between the two countries with regard to the maritime boundary, but this time in a stronger manner. With Note No. 406 of 11 April 2001, the Minister of Foreign Affairs of Chile Soledad Alvear, answered the Peruvian communication of 10 April, which only conveyed a strong and energetic protest without mentioning the maritime boundary 194

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issue. However, the answer from the Ministry of Foreign Affairs of Chile established a connection between the location of the booth and its maritime intentions: With regard to the location of the surveillance booth mentioned by Your Excellency in the Note I hereby answer, I must insist that it was located on Chilean territory to the South of the boundary demarcated by the two countries, among other instruments, through valid minutes concluded and fully in force of 26 April 1968 and 19 August 1969. Such agreements were followed by the materialization of the parallel of the boundary which starts at Boundary Marker number 1, called Seashore (‘Orilla del Mar’)342.

The emphasis placed on the maritime boundary issue in the answer given by Chile indicated that the location of the booth would have only been an action to trigger the incident and set on record, in a diplomatic Note, new elements that the Government of Chile would add to support its intentions. These new elements, which had not been previously used, are the reference to the 1968 report and 1969 technical minutes, without mentioning the agreement which they stem from, i.e., the exchange of Notes of 6 February and 8 March 1968.

This omission can be explained by the fact that such agreement establishes clearly that the installation of the leading marks for small artisanal vessels did not refer to any “materialization of the maritime boundary.”

On 25 March 2002, the Government of Chile reacted to the communication of the Government of Peru on 9 January 2001, in which, alluding to the chart deposited by Chile with the Office of the Secretary General of the United Nations, informed such organization that there were no maritime boundaries between the two countries343. The Government of Chile reacted a year later, on 25 March 2002, through a declaration by its Permanent Mission to the United Nations, in which he expressed that Chile and Peru have determined quite some time ago their international maritime boundary, as evidenced in the international instruments entered into along with Ecuador, called Declaration of Santiago of 18 August 1952 and the Agreement relating to a Special Maritime Frontier Zone, signed in Lima, on 4 December 1954 […].344

The declaration also contains a reference to the position of Chile to not recognize the starting point in the land boundary established in the 1929 Treaty at the point where the arc’s projection reaches the seashore: Cf. Embassy of Chile, Note 406, 11 April 2001.

Ministry of Foreign Affairs of Peru, Declaration, 9 January 2001.

344 Declaration by the Government of Chile on the maritime boundary between Chile and Peru, New York, 25 March 2002.

342 343

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Later, on 26 April 1968, authorized representative of Chile and Peru drafted a Minute in compliance with the mandate entrusted to them by their respective Governments to study on the ground the installation of leading marks visible from the sea, that would materialize the parallel of the maritime boundary starting at boundary marker number one; such minute records the outcome of their work and was approved expressly by the two Ministries of Foreign Affairs. A year later, from the 19 to the 22 August 1969, there was a meeting of the ChilePeru Joint Commission on the Verification of the Position of Boundary Marker Number One and to Signal the Maritime Boundary and determined the location points for the leading marks —two light beacons, whose characteristics had been agreed in order to identify the maritime boundary and materialize the parallel running through Boundary Marker Number One, thereby setting on record the work carried out.345

Apparently, this part of the declaration would be intended to substantiate the report of 26 April 1968 and the minutes of 22 August 1969, technical documents concerning the implementation of a 1968 diplomatic agreement, which the declaration ignores, would have amended the 1929 Land Boundary Treaty, hence trying to force to a construction of arguments that would allow to affirm that Boundary Marker No. 1 is the beginning of the maritime boundary.

In October 2002, the Government of Peru, in application of its jurisdictional power and to prevent any type of incident, removed the debris of the leading tower or mark located on Peruvian territory and that was placed in application of the 1968 Agreement. In its press release dated 30 November, it reported that the debris from the beacon had been removed. The text of the communication mentioned: 1. Today, Navy staff, in accordance with the coordination between the Ministry of National Defense and the Ministry of Foreign Affairs, has removed the debris of the beacon located in Peruvian territory, in the vicinity of the boundary with Chile. Such beacon had been destroyed by an earthquake on 23 June 2001.

2. Such beacon had been built by Peru in 1972, in application of the agreements signed in 1968 and 1969 between the Governments of Peru and Chile, and was intended to provide, along with a similar beacon on the Chilean side, the necessary orientation to small vessels that carry out fishing activities in the zone, and which now are equipped with their own guidance instruments.346

The Government of Chile sent a diplomatic note of 30 November 2002, in which it pointed out that unidentified people coming from Peru were demolishing the Peruvian beacon that had been built in compliance with the Government of Chile, adopted in 1968, to signal by means of the aligning with a Chilean tower 345 346

Ibid.

Ministry of Foreign Affairs of Peru, Press Release 155-02, 30 November 2002.

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“the maritime boundary agreed upon between the two countries, on the parallel of Boundary Marker No. 1.”347 Two days later, the Government of Peru answered the Chilean Note expressing its disagreement with its content and pointing out that personnel from the Peruvian Navy had been in charge of removing the debris of the beacon. It was further clarified that cleaning tasks were not, as the Government of Chile had mentioned “the demolishing of a beacon”, but instead the removal of debris, given the legal nature of the beacon. The Ministry of Foreign Affairs of Peru clarified the comments made by the Government of Chile reminding them that the only purpose of such leading marks were to guide fishing activities in the zone where the Boundary Marker No. 1 of the common land boundary is located and not —as pointed out in the Chilean Note— the tracing of a maritime boundary.

Finally, the Government of Peru clarified that the starting point of the boundary in the land was not Boundary Marker No. 1, but the one located on the seashore in accordance with the provisions of the 1929 Treaty and the Minutes of the Boundary Demarcation Convention of 1930348.

With this exchange of communications, each country gave details of its position on the beginning of the maritime boundary and insisted on their opposing and contrasting positions on maritime delimitation.

In the following years, claims continued to take place between one country and the other regarding the maritime dispute through the exchange of diplomatic communications of the Ministries of Foreign Affairs in which they consistently and systematically express their opposing and contrasting juridical positions.

Concerning the meetings and encounters of the Ministers and Vice Ministers of Foreign Affairs of the two countries, this topic became a permanent one in their bilateral agendas.

Since 2001, the numerous meetings of the Vice Ministers of Foreign Affairs of Peru and Chile, the subject matter was always discussed in view of establishing a modus operandi to solve it. In such consultation, the countries exchanged opinions on their perceptions about the topic. And on the Peruvian side, it was common to affirm the convenience and imperative need to find a diplomatic solution.

This quiet and informal dialog was also discussed by the Heads of State when President Alejandro Toledo visited Santiago de Chile on 22 and 23 August 2002.

In the interview between the two Presidents, President Toledo stated: 347 348

Ministry of Foreign Affairs of Chile, Note No. 72, 30 November 2002.

Cf. Ministry of Foreign Affairs of Peru, Note to the Embassy of Chile, 2 December 2002.

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Yes. We have informally talked with President Lagos about the maritime boundaries. We have an interpretation that is slightly different, but let us leave our Ministers of Defense and Foreign Affairs work on the matter and any initiative by Peru will be in the framework of peace, integration, and cooperation.349

On the other hand, President Lagos added: I fully interpret what President Toledo has stated. I believe this is a matter that should be addressed at the corresponding level and what is important is that if we stick to these topics, as important as they may be, we are not going to work on these others that are more substantive.350

Between 2001 and mid-2004, the dispute was addressed constantly and systematically through informal consultations between the Ministers and Vice Ministers of Foreign Affairs, almost always as confidential. On all of these occasions, the two parties expressed and affirmed their own perceptions and positions.

It is in this context that, in which positive agenda of cooperation had reached very important levels and in which the dialog on the issue of maritime delimitation had been recurring in the meetings of the authorities responsible for guiding the policies of the two countries, and in my capacity as Minister of the Republic of Peru I sent the Minister of Foreign Affairs of Chile, Soledad Alvear, Note No. 6/43 of 19 July 2004, which based on the reflection on the key role of the two States had in determining the Law of the Sea, on behalf of the Government of Peru, I proposed commencing diplomatic negotiations to settle definitively and in accordance with international law the maritime delimitation dispute351. This Note showed the willingness of the Government of Peru to find a compromised solution through direct treatment between the Parties: Cf. Newspaper La Republica, Lima 24 August 2002.

Ibid.

351 Sending such Note was part of a global strategy to face and solve the maritime dispute with Chile in view of obtaining historic stability for the bilateral relations in the medium and long terms by overcoming the dispute which is the only boundary-related pending matter between the two countries. This strategy stemmed from a political and diplomatic analysis which stated that concealing the problem or setting it aside was contrary to the interests of Peru and that, in addition, it would only create a cyclical instability in bilateral cooperation and understanding within a positive agenda. Relations between the two countries shall be based on mutual respect and mutual benefit and this requires sound stability that can only be achieved once the maritime issue is settled. This political-diplomatic strategy was complemented by legal analysis studies on the maritime dispute, which indicated that it was essential —in conformity with international law— to test the real possibility of finding a solution through diplomatic negotiation based on good faith. Only in the event that the Government of Chile were to object to a negotiated settlement, would Peru turn to the jurisdictional option foreseen in Article XXI of the Pact of Bogota. This juridical vision was prepared several months before the Note was sent, with the contribution of the Legal Department and the Advisor on the Law of the Sea of the Ministry of Foreign Affairs and with the valuable contribution of the international law firm Foley Hoag LLLP Attorneys at Law. 349 350

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Lima, 19 July 2004 Her Excellency, I have the honor of addressing Your Excellency with the purpose of making reference to the juridical dispute on maritime delimitation existing between Peru and Chile.

Before dealing with this mater, I would like to recall, Your Excellency, the unification of criteria and collaboration between Peru and Chile in the development of the new Law of the Sea. In the formative stage of the accurately called new Law of the Sea, Peru ad Chile played very important roles in the progressive development and codification of this legal order. Both countries carried out actions that had enormous significance in the international recognition of the sovereignty and jurisdiction of the coastal State in the sea adjacent to the 200 nautical miles, an extension largely surpassing the traditionally existing ones. In this initial stage, of the new Law of the Sea, our countries concentrated their efforts with the main purpose of extending and defending the sovereignty and the jurisdiction in the adjacent sea up to nontraditional but fair and equitable measures. Those efforts were oriented to the protection of these new zones and their resource.

In the evolution of law, many States were opposed to this innovative and bold extension of the sovereignty and jurisdiction of the coastal State. However, our countries, in a coordinated, decisive and effective way, not only were reluctant to accept this objection – which was based, in part, on international law build up in past centuries – but also convinced the international community of the justice and equity of its cause. From the 1950s until the difficult negotiations at the United Nations Third Conference on the Law of the Sea, this supportive, coordinated and efficient work – to which other countries of the region adhered, produced very positive results in the consolidation of the new principles and institutions of the Law of the Sea. However, and in spite of this broad and close collaboration in the development of the Law of the Sea, Peru and Chile still have pending the maritime delimitation of their respective adjacent zones, since no specific treaty on this very important issue has been concluded between both countries.

With respect to the maritime delimitation between our countries, Peru addressed a Note to the United Nations Secretariat General containing a Declaration disseminated by such international organization through Circular Letter No. 13 of the Law of the Sea in March 2001, published by its Bureau of Oceanic Affairs and Law of the Sea; in this document, it is indicated, among others, that “until now Peru and Chile have not signed, in accordance with the pertinent rules of the 199

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international law, a specific treaty on maritime delimitation”; that “the Government of Peru, in Note 5-4-M/147 dated 23 May 1986, informed the Government of Chile about its official position regarding the need to initiate the formal and final delimitation of the maritime spaces between the two countries, communication that has recently been reiterated by Note RE (GAB) 6-14/113, dated 20 October 2000, due to the fact that the issue is still pending” and that “consequently, the Government of Peru does not recognize the indication of the parallel line as a maritime limit between Peru and Chile”.

Likewise, other Notes have been exchanged between Peru and Chile that reveal totally dissenting and opposed juridical positions about the maritime delimitation which in accordance with the international law, evidence a juridical dispute.

Peru considers that the stability of friendly and cooperative bilateral relations with Chile, as well as the promotion of shared interests in all aspects of the bilateral relationship will find a larger dynamism to the extent that an agreement on the juridical dispute could be reached, whose solution is still pending.

These considerations, of utmost importance in the bilateral relation, lead me to formally submit a proposal, to Your Excellency, for the commencement, as soon as possible, of bilateral negotiations to solve this dispute. I also suggest that these negotiations start within the next 60 days. They could be carried out in the city of Lima, in the city of Santiago de Chile or in the city chosen by mutual agreement.

The purpose of these negotiations should be the establishment of the maritime limit between Peru and Chile, according to the provisions of international law, through a specific treaty on this issue.

The Peruvian position on the maritime delimitation between States with adjacent coasts was officially presented by the President of the Peruvian Delegation to the United Nations Third Conference on the Law of the Sea, in his communication, dated 27 August 1980, which in its seventh paragraph reads as follows: “With respect to the criteria on delimitation of the territorial sea, the exclusive economic zone and the continental shelf between States whose coasts are adjacent, Peru considers that, in the absence of a specific delimitation convention expressly agreed upon on that specific matter to definitely establish the limits of such zones, and where there are no special circumstances nor historical rights recognized by the parties, the median line or the equidistance line should apply as a general rule, because this is the most appropriate manner of arriving at an equitable solution, being this criterion well reflected in the present articles of the integrated text.”

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I avail myself of this opportunity to reiterate to Your Excellency the assurances of my highest and most distinguished consideration. manuel rodriguez cuadros

Minister of Foreign Affairs of Peru To Her Excellency Mrs. María Soledad Alvear Minister of Foreign Affairs of Chile This invitation to open the negotiation process was answered by the Government of Chile, first through a public communiqué, then through a diplomatic Note. In both of them, the Ministry of Foreign Affairs of Chile mentioned that it could not commence diplomatic negotiations because, according to its position on the subject of maritime boundary, it had already been settled in 1952 and 1954.

In the formal answer sent by the Minister Soledad Alvear, through Note No. 16723, after expressing its agreement with “insofar as recalling the joint effort to achieve a close cooperation in maritime affairs and particularly in the establishment of the 200 mile maritime zone”, as well as other fundamental agreements that resulted in the South Pacific System and “In this same spirit and with an equal conviction of the importance of the cooperation developed”, she pointed out that “I find it necessary to express Your Excellency that it is not appropriate to refer to negotiations of treaties in force, that have established the maritime boundary between Chile and Peru at parallel 18°21’03”352.

Once the answer from the Government of Chile was received, the Ministry of Foreign Affairs of Peru issued Official Communiqué RE/22-04 of 11 September 2004 pointing out that: The reply of the Government of Chile has insisted on its position in the sense that the maritime boundary would have already been fixed between the two countries. The Government of Peru, expresses, once again, that no agreement whatsoever between the two countries has established any maritime boundary.353

All the same the communication reminded that […] on that occasion, the Government of Peru suggested to the Government of Chile to provide an answer within 60 days following the submission of the abovementioned Note, as sign of good faith towards a bilateral solution to the legal dispute existing between the two countries.” The Ministry of Foreign Affairs of Minister of Foreign Affairs of Chile, Alvear, Maria Soledad, Communication addressed to the Minister of Foreign Affairs of Peru, Manuel Rodriguez Cuadros, 10 September 2004.

353 Ministry of Foreign Affairs of Peru Official Communiqué RE/22-04 of 11 November 2004.

352

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Peru finally determined: “With the answer given by the Government of Chile, the legal dispute between the two countries is once again formally substantiated, and consequently, unless a change of circumstances, the possibility of seeking a solution through direct negotiations has been exhausted. Therefore, the Government of Peru may resort to the peaceful dispute settlement mechanisms established in international law, including the jurisdictional methods established by the rules and regulations of the United Nations and the Inter-American System.354

The exchange of Notes, following the Peruvian initiative to commence formal diplomatic negotiations made it evident that it was impossible at that time to begin such negotiations given the attitude of the Government of Chile to deny the existence of such dispute.

Peru, as the last step in a number of events on this subject, out of good faith and with a constructive spirit, suggested, in accordance with international law, commencing negotiations; and upon confirming that this would not be possible given Chile’s denial, made clear its point of view according to which all the requirements to resort to pacific means of jurisdictional nature, were completed; hence, Peru implied that it could turn to the Pact of Bogota and the International Court of Justice.

It is worth taking note that the communiqué does not absolutely dismiss the diplomatic negotiation. Its careful wording points out that “(…) consequently, unless a change of circumstances [emphasis added by the author], the possibility of seeking a solution through direct negotiations has been exhausted.” The phrase “unless a change of circumstances” expresses, in light of the principle of good faith, a positive safeguard for the future in case there is a hypothetical change of attitude by the Government of Chile that would allow for the commencement of negotiations. In this way, although we have confirmed that the condition established in Article II of the Pact of Bogota to resort to a jurisdictional instance, the communiqué assumes a prudent and farsighted attitude to protect the opportunity for direct settlement, to the extent that circumstances change.

On the other hand, this communiqué —already analyzed— signed by the Minister of Foreign Affairs, Ignacio Walker is very relevant; it is the only joint document of the two countries on this subject, which recognizes the maritime dispute355.

For international law, a legal dispute is the conflict of interests and thesis on a fact or situation with a legal nature. The Ministers of Foreign Affairs, in the declaration under evaluation, described a legal dispute almost under the same terms as those defined by the International Court of Justice. In that sense, we Ibid.

Rodriguez Cuadros, Manuel and Walker, Ignacio, Joint Statement of the Ministers of Foreign Affairs of Peru and Chile, Rio de Janeiro, 4 November 2004.

354 355

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indicated that maritime delimitation “is a matter of legal nature”, “regarding which Peru and Chile have opposing views”. The declaration recognizes the existence of the dispute almost under the same terms as those of the Court.

In addition to diplomatic correspondence related to maritime delimitation, the Governments continued to exchange persistently and systematically reciprocal communications protesting on the arrest or intrusion of fishing vessels into the jurisdictional waters of the other country. In all of these communications, the Consulate of Peru in Arica, upon reporting on the arrest of Peruvian vessels or Chilean vessels, as well as answer communications from the Naval Commander’s Office and Port Authority of Arica in a systematic and permanent way, has pointed out and points out that “it believes timely to insist on the persistent position of Peru in the sense that the international maritime boundary between the two countries has not been established.”356 On 24 May 2005, the Ministry of Foreign Affairs of Chile sent the Embassy of Peru in Santiago a communication in which it referred to these continuous and persistent communications, between the Consulate of Peru and the Captaincy of the Port of Arica, and it precise that regarding “the communications by the Captaincy of the Port of Arica and the Consulate, placing doubt on the existence of a maritime delimitation, it is appropriate to remember that it has been in forced for several decades, and has been respected by the constant practice of the countries.

Therefore, there is no reason to refer to persistently opposing positions regarding such arrests.”357 This communication was duly answered: “The Embassy of Peru must reiterate the position asserted by the State of Peru, for several decades, in the sense that, not being a maritime boundary between Peru and Chile, it is thus necessary to establish it in accordance with international law.”358 In responds to another communication of the Government of Chile of 13 September 2005, the Embassy of Peru reiterated the position of Peru: In this regard, this Embassy expresses to the Honorable Ministry that the mentioned Consulate General of Peru follows instructions based on Peru’s long-standing and well-known position in that there is no international maritime boundary between Peru and Chile, because there is no a maritime delimitation treaty. This persistent position of Peru has been informed to the Honorable Government of Chile throughout several decades, through many official communications and it Communication from the Adjoin Consul of Peru in Arica to Captain; Captain of the Port of Arica, 3 January 2005.

357 Ministry of Foreign Affairs of Chile, Communication addressed to the Embassy of Peru, Santiago de Chile, May 2005.

358 Embassy of Peru, Communication addressed to the Ministry of Foreign Affairs of Chile, Santiago de Chile, 3 June 2005.

356

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was even contained in a proposal to negotiate a maritime delimitation treaty as referred to in Note number (GAB) 6/43 of 19 July 2004, whose purpose was to commence the bilateral process in order to settle this pending issue.359

Within the scope of the development of the Peruvian Legislation on the sea adjacent to its coasts, the Executive Branch sent the Congress of Peru, in October 2005, a draft bill regarding the establishment of baselines for the maritime domain of Peru. The Legislative Branch, within its public information practices and transparency in the preparation and approval of laws, published such draft law. Upon taking note of the draft law, the Minister in charge of Foreign Affairs of Chile sent a communication on 28 October 2005 to the Embassy of Peru in Santiago de Chile indicating that the draft bill under review by the Peruvian Congress was a “glaring disregard to the ChilePeru boundary established by treaties, such as the ones of 1952 and 1954, as well as other agreements which refer to the parallel that constitutes the maritime boundary agreed upon between the two countries and internationally recognized and which begins in Boundary Marker Number One. The situation suggested above, as well as a likely approval of such draft bill is not acceptable and is devoid of any legal effect for the Government of Chile.” And added: “I must point out the firm decision of the Government of Chile to continue fully exercising the sovereign and jurisdictional rights to which it is entitled on land and maritime spaces, as it has been doing since its establishment under, actually, international law and the agreements which relates it to Peru and that this draft law intends to disavow.”360 On 31 October 2005, the Minister of Foreign Affairs of Peru, Oscar Maurtua, answered pointing out that it was unusual in the relations between States for one of them to make reservations to draft laws of the other which are under review by the Legislative Branch and that additionally “warn on the convenience of its approval.” The communication of the Minister of Peru considers these appreciations of the Government of Chile as unacceptable and contrary to the principle of non-intervention. Furthermore, he points out that the parallel that Chile is alleging as the starting point of the maritime boundary is inconsistent with the legal reality and the instruments that are mentioned by the Minister in charge of Foreign Affairs as sources of an alleged maritime boundary (1952 Declaration of Santiago, 1954 Agreement relating to a Special Maritime Zone), have not established boundaries between the two countries.361 Embassy of Peru in Santiago, Note 5-4 M/311 addressed to Ministry of Foreign Affairs of Chile.

Communication from the Minister of Foreign Affairs a.i. of Chile, Cristian Barros Melet, 28 October 2005.

361 Ministry of Foreign Affairs of Peru, Note addressed to the Embassy of Chile, 31 October 2005.

359 360

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In order to identify the location of the terminus of the land boundary, the Minister of Foreign Affairs of Peru invited the Government of Chile for the Permanent Joint Commission on Limits of both countries to go ahead to verify the exact coordinates of the end point on the seashore of the arc with a radius of ten kilometers which constitutes the boundary line between the two countries. In a new communication sent on 3 November 2005, the Government of Chile insisted in its denial for the Permanent Joint Commission of Limits to go ahead to verify such coordinates. This denial was not grounded on solidly, because there is no legal grounds to deny to perform a technical procedure that would have as purpose to unquestionably verify the results regarding the exact position of the land boundary terminus by comparing the 1930 demarcation minutes and the location of Concordia point on the seashore.

On 3 November, the Congress of Peru approved law No. 28621, law on the Baselines of the Maritime Domain of Peru. Through this legal provision and in accordance with international law, in application of Article 54 of the Political Constitution362, the baselines were defined by using, for a greater portion of the littoral, the low-tide line, introducing straight lines moderately on all geographic features of the coast that so require. In addition, the law establishes that the maritime domain of Peru comprises an area of constant 200 miles measured from such baselines.

Annex 1 to the law includes a list of all coordinates of the contributing points of the baseline system of the Peruvian littoral. That list included coordinates 18°21’08” S and 70°22’39” W, as the “point on the coast, Peru - Chile land international boundary,” i.e., the terminus off the land boundary between the two countries and the starting point for the tracing of the maritime boundary —still pending.

Article 5 of law 28621, entrusted the Executive Branch with preparing the map corresponding to the outer limit of Peru’s maritime domain, pursuant to the provision in Article 4 of such law. By Supreme Decree No. 047-2007-RE of 11 August 2007, such map was approved. In accordance with the text of the decree, it was prepared based on the calculation of the arcs of circles, whose radius have a length of 200 nautical miles, measured from the baseline, in such a way that each point of the outer limit is at 200 nautical miles of the point closest to the baseline.

The map of Peru’s maritime domain has been divided into three areas: north, center, and south. That one corresponding to the southern region refers to the Constitution of Peru, 1993, Article 54: “The maritime domain of the State comprises the sea adjacent to its coasts, as well as the seabed and subsoil, up to a distance of 200 nautical miles, measured from the baseline determined by law.”

362

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maritime delimitation with Chile. The map above shows the outline on this official map.

In addition to showing the extension of Peru’s domain in the south, the map shows the area where the maritime zones of Peru and Chile overlap. This is called the “area in dispute”, which refers to the need that such delimitation be carried out by applying the principles and norms of international law.

The publication of the map in the south sector of Peruvian maritime domain was officially objected by the Government of Chile. In addition to express “its formal protest for the mentioned publication,” Chile insisted that “the projections over Chilean maritime spaces that such map published by Peru intends to convey are devoid of any legal international effect and are not acceptable to Chile.”363 Based on the behavior of the States, reflected by domestic administrative acts, official statements, press releases, complaints, protests, unilateral diplomatic documentation, and in one single case joint diplomatic documentation, it is not possible to conclude that legal obligations have been established between the two countries on the tracing of a maritime boundary or a specific delimitation clause; let alone running through parallel 18°21’00”.

O

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TE

R

LI

M

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OF

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RU

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AREA IN DISPUTE

Chart of Outer Limit, South Sector of Peru’s Maritime Domain Source: Supreme Decree 047-2007-RE, 12 August 2007 363

Ministry of Foreign Affairs of Chile, Official Letter of 12 August 2007.

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The administrative acts and complaints caused by the presence of vessels from either country in their corresponding jurisdictional waters only refer to the maritime space of the special maritime frontier zone to exempt artisanal fishing vessels from penalties. This zone is not consistent with and cannot be assimilated to the maritime zone established by the Declaration of Santiago or the maritime spaces recognized to States by the existing international law.

Irrespective of certain inconsistencies in the behavior of either State, the isolated use of wrong expressions in certain documentation or administrative proceedings of similar nature, there is not such a volume of actos propios or behavior of the States that given their persistence, nature, and intention represent the existence of acquiescence or estoppel in connection with the use of any method of delimitation; let alone a delimitation through the parallel of latitude, which in essence is contrary to the principles and rules of international law because it would result in extremely inequitable outcomes.

In this sense, there is no sum of elements, objective or subjective, for the systematic and persistent behavior of the States to generate international obligations. Particularly the absence of an aware behavior to act based on a legal obligation of accepting and respecting a boundary through parallel of latitude is straightforward, notorious, and provable. Without the presence of the subjective element it is not possible to affirm the existence of behaviors that have been accepted through acquiescence with a given delimitation. These reasons are also valid for estoppel in which additionally, it is not possible to find evidence in the behavior of the parties that would lead us to affirm that there has been damage to or an express advantage in favor of either Party.

On the contrary, from the moment when the dispute arose, as from the public statement by the Government of Chile to trace the maritime boundary through the line of the parallel of latitude, which shows the behavior of the parties is a systematic, persistent, and consistent conflict of interests, which have legally substantiated the maritime boundary dispute.

Since there was no lex specialis on the maritime boundary between the two countries, the way to settle the matter is by applying a fundamental rule of international law of maritime delimitation, which forced the division of the overlapping area by applying equitable principles and taking into account special circumstances. Since there are no special circumstances in this zone, the line that should be traced, in principle, is the equidistance, which in this specific case guarantees, pursuant to international law, equitable results.

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IV INTERNATIONAL LAW OF MARITIME DELIMITATION AND THE PERUVIAN-CHILEAN MARITIME DISPUTE

Chapter 1: Diplomatic Means of Pacific Settlement of Disputes

Means of settlement of disputes established by international practices and recognized by international law may be enforced upon any type of opposition of interest between two or more States. Within this general framework, valid for all sorts of disputes, the methods applicable to maritime delimitation disputes have specific features and differences, even in relation with the negotiations of land boundaries.

There are two major methodologies to settle territorial disputes: a) the politicaldiplomatic ones and b) the jurisdictional ones. In practice, a third method has appeared that results from the combination between diplomatic and jurisdictional methods. This is a mixed methodology which combines, over time and in substance, diplomatic negotiation and arbitration or jurisdictional decisions rendered by an international court or tribunal.

1. Political-Diplomatic Negotiation Political-diplomatic negotiation is a process in virtue of which proposals and counter-proposals are exchanged in view of achieving a compromise acceptable to the two parties. Given its nature, political-diplomatic negotiation on land boundaries does not entail a zero-sum solution —a situation where what a party wins is lost by the other one— but rather yields a no zero-sum solution —a situation in which both parties gain or lose, though in different proportions.

This type of negotiation has legal referents, though it is not solved only as a question of law, but instead it is settled through political concessions whose limit is the parties’ willingness itself.

In the practice of land delimitation dispute settlements, States have historically shown to be more prone to political-diplomatic negotiations than to strictly legal solutions of jurisdictional nature. Usually, as pinpointed by Tran Van Minh163, States show marked mistrust or reluctance to accept jurisdictional means to 163

Tran Van Minh, op.cit., p. 48 ff.

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determine their land boundaries because discussions involve titles, whose full or partial validity is uncertain since this cannot be determined a priori. For this reason, States prefer diplomatic negotiation mechanisms in which they can have a direct participation in the course of events and hence can defend their positions.

In jurisdictional means, States actually expose contentious matters to the arbitration of a third party, a Court or Arbitration Tribunal, whose decision they are willing to accept compulsorily. However, to bequeath land differences to the judgment of an arbitrator, relinquishing to any direct involvement save for the presentation of statements or evidence, has not been the rule but the exception in land negotiations.

Diplomatic negotiations means have been by far the most chosen since States have greater control over the situation, and especially, more assuredness on reaching solutions perceived as at least acceptable. The decision to resort to an arbitration tribunal or jurisdictional court depends on how confident the parties are on the legal soundness of their titles.

Direct negotiations, as stated by Maurice Bourquin, are “the most natural and to a certain extent the best (procedure). Without going as far as to say that a bad deal is better than a good jurisdictional proceeding, it is necessary to recognize that an amicable dispute solution generally offers advantages not present in other procedures.”164 Bourquin’s statement is true to the extent that, in fact, direct negotiations are more appropriate to settle land disputes, but not because States prefer a “bad deal” over a “good judgment”. In these types of negotiations, no State is looking for a bad deal; instead, they all strive for the best and most advantageous arrangement. And it is exactly for this reason that they favor direct dealings: because it is the only that offer States broad guarantees so as to refuse an agreement that damages their vital interests. Solutions from direct negotiations may be harder to achieve, take more time, be more complex, and may demand greater negotiation efforts of each Nation and more diplomatic action. Yet, direct negotiations may also be more effective and secure since the agreement reached by two free wills is the greatest assurance of an enduring and consistent negotiation outcome.

The preeminence of direct negotiations is not only a result of most of the historical practice of land, boundaries or boundary demarcations arrangements, but they (the direct negotiations) have also been privileged by international law itself.

International conventions and treaties typically prioritize direct negotiations over other means of pacific settlement. This is consistent with a general principle in 164

AA.VV., Hommage d´une génération de juristes au président Basdevant, Editions A. Pédone 1960, p. 431.

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virtue of which States, before resorting to jurisdictional instances, shall conclude the possibility of settling their disputes through diplomatic negotiations or direct negotiation. These efforts shall be carried out in good faith and with the express intention of achieving results. It has been so established in the Charters of the Organization of American States (OAS) and the United Nations. State’s practice as has been indicated, have frequently turned to direct negotiation as a method to settle their land boundary disputes.

We can find for instance, in Asia, the Boundary Treaty between the People's Republic of China and the Kingdom of Nepal of 05 October 1961 or in Africa, the Nigeria and Tunisia Treaty of Friendship and Cooperation.165 This has also been a common practice in Latin America; and, par excellence, most of the legal practice of Peruvian diplomacy concerning land boundaries. With the exception of the arbitration by the President of the Republic of Argentina, Jose Figueroa Alcorta, in the Bolivia boundary case, all other boundary settlements of Peru (with Chile, Colombia, Brazil, and Ecuador) have been negotiated and concluded through diverse types of direct negotiation. This preeminence of diplomatic negotiation, as a mean of pacific settlement of disputes of land boundaries, is also evidenced in the procedural provisions of the Protocol of Peace, Friendship, and Boundaries of Rio de Janeiro signed with Ecuador on 29 January 1942 as a mean to settle any difference in the demarcation process.

2. Direct Negotiations and Third Party Involvement Direct negotiation usually offers a broad range of possibilities, within the realm of diplomatic negotiations, and is open to the involvement of third countries and foreign public figures that assist, and cooperate with, the parties through different mechanisms: good offices, amicable arrangement, conciliation, and mediation.

Extended direct negotiation with the involvement of third parties allows the parties to have more room for mobility in their positions. It also enables to open up spaces in the negotiation process with ideas, suggestions, or proposals articulated by conciliators or mediators. Exclusive direct negotiation has the inconvenient of posing a difficulty for the parties to make each other concessions by their own initiative. In expanded direct negotiation, third party involvement allows conciliation formulas to stem from third parties, and not the disputing parties, hence relieving them from internal costs. For these reasons, the extended mechanism has been the most used in land or boundary dispute settlements. There are very few examples 165 Cf. Queneudec, Jean-Pierre, “Remarques sur le règlement des conflits frontaliers en Afrique”. In: Revue Générale de Droit International Public, 1961, p. 377 ff.

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of solutions achieved through restricted direct treatment, such as the Treaty of 1922 secretly negotiated between Peru and Colombia.

In general, extended direct treatment offers at least two additional advantages.

First, the political grounds of negotiation involve other States, typically relevant to the parties’ bilateral relations and of equal or greater dimension from the perspective of the political, military, and economic power. Second, considering negotiation techniques, one or several third parties are brought in eventually to relieve tensions, suggest alternative conciliation solutions, mediate, and even exercise pressure to somewhat force the negotiation.

In not few cases, the participation of third parties in the political-diplomatic negotiation derives into sui generis arbitration or directly in the agreement to turn to arbitration. This is a common procedure to settle differences which were not solved by diplomatic mechanisms. In this case, the parties frequently agreed in advance to accept the arbitration award, and normally define with utmost detail the competences of arbitrators and the disputed matters submitted to arbitration. Landmark cases are the settlement of the Chaco War settled through an arbitration award rendered by six Presidents of the Americas, or the Arbitration Award of 1909 of the President of the Republic of Argentina on the Peru-Bolivia boundary delimitation.

Disputes have also been settled through direct arrangements with no arbitration involvement, but with good offices and pressure from a foreign leader, as is the case of the Tashkent Agreement of 10 January 1966, which provisionally settled the Indo-Pakistani boundary dispute over the Cashmere territory, an agreement that was settled with the informal and discreet participation of the former Union of Soviet Socialist Republics166.

It is not surprising that States are more inclined to direct negotiation or diplomatic solutions —in any of its forms— than they are to the chances offered by jurisdictional instances. This is particularly evident in the case of the countries of Africa, Asia, and Latin America, which have rarely turned to the Permanent Court of Arbitration or the International Court of Justice to settle their territorial disputes. The main reason is the mistrust stemming from national and political sensitivity towards land affairs. Hence, “when territorial integrity is at stake, States’ distrust is translated accumulatively into reluctance to be subject to mandatory decisions reached without their involvement by a jurisdictional instance which can grant, through its decision, a title to the other party.”167 166 167

United Nations, Monthly Chronicle, vol. III, 4, New York, April 1966, pp. 42 and 43.

Tran Van Minh, op. cit., p. 56.

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In short, when it is matter of disputes or differences dealing with the allocation of territorial sovereignty, the States tend to avoid jurisdictional settlement and to prefer diplomatic negotiation.

This is not the case in land disputes, disputes in which the allocation of land sovereignty rights are not at stake, but only demarcation is pending, i.e., the application of the norm that determined the dividing line between two States. In these disputes, practice varies and is more driven towards jurisdictional solutions, whether through an arbitrator or the International Court of Justice. This is so because it is no longer a matter of determining a right but rather of interpreting and applying a preexisting right. This option is included in the land boundary treaties between Peru and Colombia and between Peru and Chile. The boundary treaty and river navigation between Peru and Colombia, signed on 24 March 1922, establishes that the demarcation differences, if not settled by direct negotiation, shall be settled by The Hague Permanent Court of Arbitration, “whose award shall be final and shall be enforced immediately.”168 In the case of the 1929 Treaty and its Additional Protocol, which determined the land boundaries between Peru and Chile, it is established that: “If the Governments of Peru and Chile disagree as to the interpretation of any of the provisions of this Treaty, and if, in spite of their good will, they can reach no agreement, the dispute shall be settled by the President of the United States of America.”169 The practice of maritime boundary dispute settlement is likened to that of land demarcation disputes and is different from that of land sovereignty allocation disputes.

Maritime delimitation disputes —almost all of them— seek solutions using jurisdictional means, through the International Court of Justice or Arbitration Tribunals. There are practically no cases which have been settled through direct negotiation or diplomatic negotiation. In fact, although international law of maritime delimitation is quiet novel and recent (it only began in the XX century and more specifically after 1958); the number of cases submitted to the instances of the International Court of Justice and the tribunals is considerably high.

This is due to the different nature of these two types of disputes. In land disputes of sovereignty allocation, negotiation or jurisdictional solution implies a discussion on which of the two parties has the right or holds the entitlement of sovereignty over the territory in dispute. The right alleged by each country needs to be proven through arguments regarding the possession of valid and legitimate 168 169

1922 Boundary and River Navigation Treaty between Peru and Colombia, 1922, Article IV. Treaty of Lima and Additional Protocol between Peru and Chile, 03 June 1929, Article 12.

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entitlements. There is a dispute over the possession of the entitlements and the sovereignty organic structure over the disputed land space is at stake.

However, this is not the case of maritime delimitation disputes. The matter in question is not the allocation of sovereignty over the space adjacent to each State’s coast because the entitlement of sovereignty and jurisdiction rights is held ab initio by the States just because they are coastal States. The title over the maritime spaces does not stem from a formal act (treaty) or from the occupation, possession, or other similar acquisition methods for land sovereignty entitlements. This is obtained just for the fact of having sea adjacent to the coasts of the State by operation of the principle “land dominates the sea”. Any State whose territory reaches the sea “automatically” has a valid legal entitlement over such sea up to a distance of 200 miles, by extension of its sovereignty over the continental or insular territory. For this reason there can be no dispute on the allocation of sovereignty and jurisdiction over maritime spaces. Hence, maritime disputes do not concern the recognition of sovereignty and jurisdictional rights —as is the case of most land disputes— but rather deal with delimitation matters; and they appear only and exclusively when maritime projections of two or more countries overlap or overlie. For this reason, as has been stated, maritime disputes are more like land demarcation disputes since what is under discussion is the way in which the overlapping areas shall be delimited.

This sui generis nature of maritime delimitation is complemented with another specific feature, which ostensibly distinguishes it from land boundary allocation.

When it is a matter of land boundaries or frontiers, there are no imperative or general rules to be applied. There is no rule establishing, for instance, that land boundaries shall be traced based on equity, or following significant geographic features, or through predetermined geodesic lines, or following the course of rivers. Land delimitation is determined based on the area upon which each State exercises sovereignty, irrespective of the configuration of such area.

Consequently, there are no rules to be directly enforced and let alone general rules. Equity is not applied as an imperative rule either, and the solutions are simply legally based on the scope of the land sovereignty entitlements, whether or not such outcomes are equitable. What rules land delimitation is only and exclusively the spatial scope of the entitlement.

Concerning the determination of maritime boundaries, the situation is practically the opposite. First, there is no question on the entitlements since States hold them ab initio because they are coastal States. Hence it is not a matter of attributing rights of sovereignty, but a matter of interpreting the rules of international law, conventional and customary, in order to divide the overlapping area between two or more States, seeking for an equitable outcome.

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For this reason, in the case of maritime disputes, there are precise general rules, whether or not the line to be traced in application of such rules varies in each case, given the geographical realities and the existence or not of special circumstances.

The essential principle on any maritime delimitation, with a general application, is that it should yield an equitable outcome. To this end, two additional rules or norms must be applied: divide the overlapping maritime space through —in a first approach— an equidistant line ensuring equity in the results; and finally, if the equidistant line does not yield and equitable outcome, make the necessary corrections, taking into account pertinent circumstances, if any, as well as tracing a line that combines different methods, in order to achieve always the ultimate goal of any maritime delimitation: equity in the results.

As a result of these substantial differences between land delimitation and maritime delimitation, States have been pressed to avoid direct or diplomatic negotiation for maritime delimitation and instead resort to jurisdictional instances, the International Court of Justice or Arbitral Tribunals, in order to settle their disputes regarding maritime boundaries. The fundamental reason is that in these cases it is a matter of interpreting a preexisting right and such interpretation, of a legal nature; it is easier and safer to obtain through a jurisdictional instance than it would be through diplomatic negotiation, which by definition is more politically-driven than legal.

3. Inquiry Inquiry is a proceeding seeking to yield a diagnosis or to verify the fact in a more objective manner. It is applicable to different international disputes.

This method has been proven as the most appropriate to verify massive and systematic violations of human rights internationally. In disputes concerning land allocation, delimitation, or demarcation, such method is normally used along with good offices and mediation. Investigation is aimed at confirming geographical features, such as the water courses, watersheds, headwaters of rivers, or others that may be the reason for disputes or controversies, as well as military tensions or hostile environment. Article 9 of the Hague Convention for the Pacific Settlement of Disputes has established the inquiry procedure under the following terms: “In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact the signatory powers recommend that the parties, who have not been able to come to an agreement by means of diplomacy, should, as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and 217

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conscientious investigation.”170 Subsequently, several United Nations General Assembly Resolutions have further developed both the concept and the inquiry techniques or methods of fact-finding171.

Inquiry does not lead to judgments or valuations of the dispute nor does it offer possible solutions. It is not an expression of willingness to guide or drive towards a solution of the dispute either. It is simply facts-finding, on-site technical verifications. In some cases, the commission of inquiry is empowered to make recommendations. On boundary issues, recently, a joint technical mission was sent to confirm the Peru-Ecuador east boundary which had been the source of tensions in the events of August 1991, when frontier patrol units moved between the land markers of Cusumaza Bumuiza and Yaupi Santiago.

The mission successfully satisfied its mandate in determining the location of the patrol units, removing them from the area, and finally reinserting them in their corresponding divisions.

Regarding maritime delimitation, the investigation procedure is not typically applicable, since disputes are regularly settled by jurisdictional instances.

4. Good Offices and Conciliation Good offices and conciliation are also means of pacific settlement of disputes and since all such means are based upon the assumption of the parties’ commitment not to use force and to solve their disputes. As expert Paz Andres Saenz de Santa Maria has put it, […] international law imposes a general obligation of conduct consisting in encouraging all States to settle their disputes through peaceful means so as not to endanger the maintenance of international peace and security or justice. This obligation also creates the power for any State party of a dispute to request other parties to settle their disputes through peaceful means; hence, any absolute rejection thereto would entail an international unlawful act.172

In this scenario, States are compelled to settle their disputes peacefully by applying the principle of the free choice of means173. In addition to negotiation Cf. United Nations, Handbook on the Peaceful Settlement of Disputes between States, New York, 1992, p. 25.

Cf. particularly UN Resolution 1967 (XVIII) of 16 December 1963 on “Questions of methods of fact-finding” and UN Resolution 2329 (XXII), in virtue of which the Secretary General was asked to prepare a roster of investigation experts to be made available to Member States.

172 AA.VV., Las Naciones Unidas y el Derecho Internacional, Barcelona, Editorial Ariel, 1997.

173 The principle of the free choice of means affirms that the Parties are called upon to select the methods and means to be used in peacefully settling their disputes or controversies, in conformity with international law. This principle has been formulated in Article 33 of the Charter of the United Nations; paragraph 5 Section I of the Manila Declaration on the Peaceful Settlement of International 170 171

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and inquiry, good offices, conciliation, and mediation are among the dispute settlement means used and recognized by the international community.

Good offices are defined as acts of amicable arrangement performed by third party States beneficial to the negotiation process in which disputing parties are engaged.

Good offices are usually performed upon request of a party, although in many cases the concerned parties directly offer to act in good offices. Such means implies goodwill actions, facilitation of contact between negotiators of the parties, offering of neutral venues, and eventually suggesting the course of actions to be taken. As stated in the United Nations Handbook on Peaceful Settlement of Disputes: The third party exercising good offices normally seeks to encourage the parties to the dispute to resume negotiations, thus providing them with a channel of communication.

However, there are cases in which the third party exercising good offices is authorized to do more than merely act as a go between and is allowed to take active part in the dispute settlement process, by making proposals for its solution and holding meetings with the parties to the dispute to discuss such proposals.174

Conciliation is a form of greater force than that of good offices where the third party, friendly conciliator, has the power to bring about the conciliation of each party’s interests by suggesting the course of action and initiatives to narrow the gap between the positions, after having identified the disputed and non-disputed matters. Further, the Conciliator may, upon request of the parties and in light of its mandate, propose formulas seeking to settle the disputes; such proposals are considered suggestions or expressions of good faith, since the ultimate decision rests exclusively with the parties.

The so-called Aranha formula for the demarcation case in the Rio Protocol was an effort of conciliation by the guarantor countries, which Peru and Ecuador recognized as binding, once its results were disclosed and approved.

Like in the case of inquiry, good offices can hardly be useful in settling the substance of maritime delimitation disputes given the eminently legal nature of the latter. Good offices can be very effective in urging, accompanying, or inducing the parties to mutually agree to solve their maritime disputes by a jurisdictional settlement.

5. Mediation Mediation entails a more active and decisive participation of third conciliators.

Mediation comprises all of the inherent elements of good offices and Disputes (A/RES/37/10); and Article II of the Pact of Bogota.

174 United Nations, op. cit., p. 34.

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conciliation, but unlike these two methods, mediation entails the capacity and power to propose procedural alternatives or, directly, formulas of understanding or alternative solutions. According to Rousseau, mediation “consists in the actions of a third power seeking to obtain an arrangement between two disputing States; the difference from good offices is merely a matter of degree: good offices are more discrete; while in mediation, the mediating State intervenes in the negotiation and proposed a solution to the dispute.”175 Given its own nature, mediation is performed informally and flexibly; the mediator adapts to the negotiating process of the parties. In extremely tense situations, in which the conflict is antagonistic, the mediator initially acts as a spokesperson between the parties and properly channels their approaches and opinions. In certain cases, dialog is exclusively through the mediator.

Mediation is also a method that can play an important role in building trust among the parties and at appropriate times during the negotiating process it can and it should favor conciliation or forthcoming formulae. Mediation is fertile and extremely useful in negotiations with a political or diplomatic format. Even so, its efficiency typically is impaired when the disputes deal with legal matters. These aspects of mediation have been considered in the United Nations handbook, which points out that the inherent element of mediation are “the communication function, clarification of issues, drafting of proposals, search for areas of agreement between parties, elaboration of provisional arrangements to circumvent or minimize issues on which the parties remain divided as well as alternate solutions, etc., with the primary goal of an early and fundamental resolution of a dispute.”176 Mediation comprises the power to present solutions, suggestions, and proposals which, taking into account the positions of the parties, come across as transaction means. This transaction formula always obtains the juridical nature of recommendations. In no case can a mediation formula be binding. The parties are at liberty to acknowledge the binding nature of a solution proposed through mediation. Yet, the legal nature of this act is alien to mediation, since it is a direct arrangement between the parties, whether or not the parties have concurred in compromising their views through mediation.

Mediation can hardly be useful in settling maritime delimitation disputes because the mediator would have to act strictly within the applicable law for mediation to be effective. Additionally, the mediator would have to have the power to make its proposals binding. If this were the case, mediation would have turned into arbitration.

175 176

Rousseau, Charles, Derecho Internacional Público, Barcelona, Editorial Ariel, 1961, p. 475.

United Nations, op. cit., p. 44.

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In addition to the political-diplomatic dispute settlement mechanisms which allow for negotiation, disputes on territorial allocation, delimitation or demarcation, as well as disputes on maritime delimitation may be solved by jurisdictional settlements, which includes arbitration (whether by one person or by a group of individuals) and jurisdictional proceedings in an international court or tribunal. These jurisdictional methods, based on the practice of States, are more appropriate and more extensively used in settling maritime delimitation disputes.

Chapter 2: Pacific Judicial Settlement of Disputes: the International Court of Justice

Diplomatic means for peaceful settlement of disputes are not only voluntary, by nature, but also entail the acceptance and agreement of the solution by the parties. No party can be imposed a given solution, instead, the parties jointly build the settlement of disputes; whether on their own or assisted by third parties.

In the case of jurisdictional methods, the situation is just the opposite. The dispute is submitted to a solution decided and imposed by a third party empowered by the parties to this end —whether it is the International Court of Justice or the Arbitral Tribunals. Properly speaking, this means turning to international justice.

A Jurisdictional solution is characterized by consisting of a decision grounded upon legal considerations. The resolution is arrived at by a body which is independent from the parties and is substantiated on a trial, whose judgment is binding. The jurisdictional proceeding is controversial and rests upon the principles of equal procedural status of parties and that of guaranteeing the exercise of defense right.

International justice is facultative, this means that the parties must consent to the jurisdiction of the Court or Arbitral Tribunal. As pinpointed by Pellet and Daillier, it is only possible to speak of binding international justice to the extent that the States and types of relations or matters are specified because international jurisdiction does not depend on a general principle of international law, but rather on a permanent conventional foundation177.

1. Pact of Bogota and the Enabling Clause to Bring the Case to The Hague International Court Through Peru’s Unilateral Decision As is the case of any international arbitral tribunal or jurisdictional court, the competence of the International Court of Justice is facultative. In other words, 177

Cf. Daillier, Patrick, Pellet, Alain, Droit International Public, Paris, L.G.D.J., 2002, p. 863.

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it depends on the express willingness of the States which agree to its jurisdiction.

This required expression of willingness is based on the principle of free choice of the means to peacefully settle their disputes.

For a State to be bound by the competence of the Court, the State is required to formally declare it recognizes as compulsory the jurisdiction of the Court.

This procedure to accept the competence of the Court is established in Article 36.2 of the Court’s Statute. Pursuant to such rule, any State party may, with or without any limitation of time, recognize as compulsory the competence of the Court to any or some legal dispute or controversy they may face178. Article 36.2 establishes, literally: The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.179

In accordance with this provision, Peru has recognized the compulsory competence of the Court with no exceptions whatsoever. Chile has not done so. For this reason, if we only consider as basis the provision set forth in Article 36.2, Peru could not bring before the Court the maritime boundary case, since the Government of Chile has not recognized its jurisdiction and competence to settle disputes to which it is a party.

Nevertheless, both Peru and Chile have recognized such compulsory competition in 1948 through the commitment established in article XXI of the American Treaty on Pacific Settlement (Pact of Bogota)180. This declaration recognizing the compulsory competence of the Court is guaranteed by Article 36.1 of the Statute which establishes that: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”181 Statute of the International Court of Justice, Article 36.

Statute of the International Court of Justice, Article 36.2.

180 American Treaty on Pacific Settlement (Pact of Bogota), 30 April 1948.

181 Ibid., Article 36.1.

178 179

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Recognizing the compulsory jurisdiction of the Court in commitments engaged in other treaties is usual in international practice. In fact, there are a number of cases of bilateral or multilateral treaties with such enabling clauses. In the 1922 Boundary Treaty, Peru and Colombia, for instance, convened that any disagreement or dispute in connection with the application of the treaty shall be settled by the International Court of Justice. This is an example of how, through a bilateral treaty, two countries have declared to recognize the jurisdiction of the Court to settle, timelessly, a specific type of international dispute.

The American Treaty on Pacific Settlement (Pact of Bogota) was signed in the capital city of Colombia on 30 April 1948 during the Ninth International Conference of American States. This Pact entered into force on 6 May 1949.

Peru and Chile ratified it on 28 February and 21 August 1967, correspondingly.

In addition to Chile and Peru, Brazil, Colombia, Costa Rica, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, the Dominican Republic, and Uruguay are signatory to this Pact.

The Pact establishes a general obligation, required of all State members, to settle their disputes by peaceful means. It specifically establishes in Article II: The High Contracting Parties recognize the obligation to settle international controversies by regional procedures […] Consequently, in the event that a controversy arises between two or more signatory States which, in the opinion of the parties, cannot be settled by direct negotiations through the usual diplomatic channels, the parties bind themselves to use the procedures established in the present Treaty, in the manner and under the conditions provided for in the following articles […]182.

The regional procedures of pacific settlement of disputes mentioned by such Article II are good offices, mediation, inquiry, conciliation, arbitration, and jurisdictional settlement; in essence, the same as those established by international law in general.

In the specific case of the Peru-Chile maritime dispute, since one of the parties denies the existence of a dispute and has express its formal will not to negotiate, good offices and mediation procedures are deemed concluded as are inquiry and conciliation. Conciliation can only settle the dispute if the parties agree, and in any event its recommendations are not binding. Arbitration is not an option either, because it requires the joint concurrence of the parties and, in this case, it is clear that one of the parties cannot agree to a joint solution if it denies the problem.

182 Ibid., Article II. 223

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In this context, the only applicable method which can arrive at a final solution to the dispute is the judicial proceeding whose characteristics are set forth in Article XXXI of the Pact of Bogota under the following terms: In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.183

As can be observed, when Article XXXI of the Pact of Bogota classifies the disputes of juridical nature that can be settled through jurisdictional settlement repeats literally the ones listed in Article 36.2 of the Statute of the International Court of Justice.

Pursuant to Article XXXI, a contracting party may bring another party, unilaterally, to settle the dispute with the International Court of Justice, provided that, however, such dispute has a legal nature and is concerned with any of the matters listed in such Article.

The Pact of Bogota did not establish its own jurisdictional procedure; it did not establish an Inter-American Court or Tribunal of Justice. Instead, the Pact favored the existing judicial procedure of the International Court of Justice. For this reason, Article XXXI of the Pact has declared that the contracting parties recognize the compulsory jurisdiction of the International Court of Justice to settle their juridical disputes under the conditions and with the requirements established in the Pact.

A State which has not recognized the compulsory jurisdiction of the Court directly by operation of its Article 36.2 of its Statute may be brought to Court and be subject to its jurisdiction if it has recognized its competition through a bilateral or multilateral treaty. All Contracting States to the Pact of Bogota and which has not made any reservation to Article XXXI are under this situation, among them Peru and Chile.

183

Ibid., Article XXXI. 224

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The jurisdiction of the Court to settle the maritime dispute between Peru and Chile is, thus, grounded on Article XXXI of the Pact of Bogota. However, the Pact has established certain assumptions for which it is not possible to use the judicial procedure and the remaining pacific settlement of disputes means in certain cases.

Article II sets forth as a sine qua non condition for triggering the jurisdictional procedure —and the remaining pacific dispute settlement means, that the parties have exhausted the possibility of finding a solution through direct negotiation.

Article VI, on the other hand, establishes that dispute settlement procedures may not be applied to matters already settled by arrangement between the parties in accordance with international law: “The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty.”184 For an application to be admitted by the Court, in conformity with Articles XXXI,II, VI, and other applicable Articles of the Pact of Bogota the following conditions must be satisfied: a) the parties must have accepted the compulsory jurisdiction of the Court through the approval and ratification of the Pact of Bogota; b) the matter shall be a dispute of juridical nature; c) the disputed matter shall be listed in the second part of Article XXXI; d) direct diplomatic negotiations shall have been concluded; and e) the matter has not already been settled by any treaty or other arrangement in force on the date of the conclusion of the Pact.

In the specific case of the Peru-Chile maritime dispute, all of these requirements are fully satisfied: 1. The Government of Chile has recognized the compulsory jurisdiction of the International Court of Justice when it signed the Pact of Bogota in 1948 and ratified it in 1967. The Government of Chile has not made any reservations to the application of Article XXXI of the Pact.

2. The Peru-Chile maritime delimitation dispute is a controversy because the two States have opposing positions and different interests on a juridical matter.

3. The Peru-Chile maritime delimitation dispute is a “question of international law” because it stems from the legal effects of their overlapping sovereign and jurisdictional maritime areas. The juridical nature of this dispute is that 184

Ibid., Article VI. 225

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it is a maritime and a delimitation dispute, whose solution shall be concurred by applying the principles and rules of international law.

4. In the Peru-Chile case, the possibility of an arrangement through diplomatic negotiations or direct negotiations has been concluded; it has not been possible because the Government of Chile has systematically and consistently denied to commencing diplomatic negotiations. This willingness, contrary to commencing diplomatic negotiations has been even expressed formally through a Note and a Press Release issued by the Government of Chile in response to Peru’s initiative of 10 September 2004 to commence negotiations to settle the dispute.

5. The dispute is not currently settled and it was not settled when the countries signed the Pact of Bogota on 30 April 1948.

Consequently, the State of Peru is legally enabled by Article XXXI of the Pact of Bogota to file the Application with the International Court of Justice in view of arriving at a de iure solution to the juridical dispute on maritime delimitation with Chile185. All the same, the Government of Chile is legally bound, by the rules of the Pact of Bogota, to accept in good faith the compulsory jurisdiction of the Court. And the Court is competent over the matter under discussion, in conformity with the aforementioned provisions of its Statute.

2. Preliminary Exceptions that the Government of Chile Could Raise Asking the Court to Dismiss the Case on Lack of Jurisdiction or to Declare the Application Inadmissible If we take into account the dynamics of the procedures with the Court, the legal reasoning of its position, as well as its rights, we can anticipate that the Government of Chile will file preliminary objections denying the jurisdiction of the Court to try the matter and ask that the Application be dismissed on lack of jurisdiction.

President Ricardo Lagos itself announced this on an interview with Bio Bio public radio: “(…) that legal explanation consists in stating that there is a treaty, the 1948 Pact of Bogota, signed by the parties recognizing that when they 185 On the recognition of the compulsory jurisdiction of the International Court of Justice through the Pact of Bogota, cf. Orihuela Calatayud, Esperanza, “El Pacto de Bogotá y la Corte Internacional de Justicia”. In: Revista española de derecho internacional, vol. 42, No. 2, 1990, pp. 415 to 442. On the application of Article XXXI of the Pact of Bogota as grounds for the jurisdiction of the International Court of Justice, cf. Gomez-Robledo Verduzco, Alonso, “El “Pacto de Bogota” sobre resolución de controversias, a la luz del caso relativo a las acciones armadas fronterizas y transfronterizas entre Nicaragua y Honduras”. In: AA. VV., El papel del derecho internacional en America: la soberanía nacional en la era de la integración regional, Mexico D.F., UNAM, 1997, pp. 179-204.

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encounter difficulties, they can resort to The Hague and that if one country believes it has difficulties with another country, it has the unilateral right to resort to The Hague. And, what will the other country do? You may wonder. ‘It has nothing to do’ and an ‘objection on jurisdiction” will be filed186.

Preliminary objections are legitimate instruments or means of defense used by one Party seeking for the Court to declare it has no jurisdiction over the matter and consequently dismisses the Application. The purpose is to bring the matter to an end without the Court giving a ruling on the substance of the matter187.

Supposing that the Government of Chile filed preliminary objection, the Court will have to decide upon its jurisdiction and whether or not the case is admissible before assessing its merits, or, eventually, resolve preliminary questions together with the material matters.

Analyzing the legal scenarios on the preliminary objection that could be filed to dismiss the jurisdiction of the Court and/or request that the case be declared inadmissible, it is possible to draw the conclusions reported below. a) Objections on Jurisdiction The filing of an objection on jurisdiction would mean that Article XXXI of the Pact of Bogota is not sufficient grounds to affirm that Chile has recognized the compulsory jurisdiction of the Court, since it has not declared its recognition before the Court itself, pursuant to Article 36.2 of its Statute.

This objection has already been settled by the Court in Nicaragua vs. Honduras (boarder and transboarder armed actions, judgment dated 20 December 1988)188.

Within the scope of such case, Honduras pointed out that Article XXXI of the Pact was insufficient to declare the jurisdiction of the Court, and that it had to be supplemented with an updated declaration of its recognition of its jurisdiction in accordance with Article 36.2 of the Statute of the Court. The Honduras line of thought was that there was a mutual dependence functional relationship between Article 36.2 of the Statute of the Court and Article XXXI of the Pact of Bogota. According to this construction, the latter Article did not have an autonomous commitment to recognize the compulsory jurisdiction of the Court and alone it would not suffice to determine that a State has recognized the Court’s compulsory jurisdiction. Honduras stated that a unilateral declaration was necessary, as provide for by Article 36.2.

Press Conference by President Ricardo Lagos. In: Bio Bio Radio, Santiago de Chile, 14 August 2004.

The Court has solved the objection along with the merits, for instance in the case of the Lockerbie air incident. Cf. ICJ, Recueil, 1998, p.9 and ICJ, Siglaisons, p. 29, para. 50.

188 Cf. ICJ, Recueil, 1988.

186 187

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The Court, in its judgment, resolved otherwise. The Court clearly ruled that there was no connection between Article XXXI of the Pact of Bogota and the declaration of acceptance of compulsory jurisdiction in accordance with paragraphs 2 and 4 of Article 36 of the Statute, and therefore, Article XXXI of the Pact of Bogota establishes an independent and autonomous recognition to the compulsory jurisdiction of the provisions and scope of Article 36.2 of its Statute: […] the Court has to conclude that the commitment in Article XXXI of the Pact is independent of such declarations of acceptance of compulsory jurisdiction as may have been made under Article 36, paragraph 2, of the Statute and […] paragraph 4 of that same Article189.

Additionally, the Court defined the scope of the commitment acquired by the parties through Article XXXI of the Pact of Bogota stating that “[…] applies ratione materiae to the disputes enumerated in that text; it relates ratione personae to the American States parties to the Pact; it remains valid ratione temporis for as long as that instrument itself remains in force between those States”190.

The Court unanimously finds that “(…) it has jurisdiction under Article XXXI of the Pact of Bogota to entertain the Application filed by the Government of the Republic of Nicaragua on 28 July 1986.”191 Hence, the objection filed by Honduras was dismissed and the Application filed by Nicaragua admitted to trial.

The Court has thus determined that Article XXXI of the Pact of Bogota is sufficient legal ground and is autonomous so that any of the parties to the Pact of Bogota to file a claim against another one on any disputed juridical matter, as per the provisions of the Pact of Bogota.

When the Government of Chile signed the Pact of Bogota and agreed to accept the compulsory jurisdiction of the International Court of Justice in 1948, Chile was aware that any other State member to the Pact of Bogota could cause Chile to appear before the Court and that it could not withdraw or object to such jurisdiction. The Court, in the case on the Right of Passage over Indian Territory, has been straightforward on this issue: “Un État qui accepte la compétence de la Cour doit prévoir qu’une requête puisse être introduite contre lui devant la Cour (…)”192. [A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court.] Compliance with and no 189 Actions armées frontalières et transfrontalières (Nicaragua vs. Honduras), ICJ, Recueil, 1988, p. 88, para. 41.

190 Ibid., p. 84, para. 34.

191 Ibid., p. 167, para. 99.

192 ICJ, Recueil, 1957, p. 146.

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contestation of this obligation are based on the respect of principle of good faith, which is one of the basic principles governing international law —the Court has consistently required its compliance by the State. As early as 1910, in the North Atlantic Coast Fisheries Case, the Court indicated that all States shall conduct themselves in good faith193. This obligation has been repeated systematically in several judgments, particularly in the ones concerning fisheries jurisdiction (Federal Republic of Germany vs. Iceland)194, the Rights of Nationals of the United States of America in Morocco (United States of America vs. Morocco)195, and the Border and Transborder Armed Actions (Nicaragua vs. Honduras)196.

Finally, the fact that the Government of Chile insists on denying the dispute is irrelevant since whether or not the Court has jurisdiction concerning the matter in question is beyond the parties. Each party may express its corresponding position, but the parties are not called upon to determine the jurisdiction of the Court based on the burden of proof. This is a pure matter of law to be settled only and exclusively by the Court, taking into account the arguments and presentation of the facts made by the parties. The party has so ruled in its caselaw, repeatedly.197 b) Objections on Inadmissibility of Application We can also anticipate, given the nature of the existing rules of procedure198 that Chile will file preliminary objections by which it asks the Court to declare the Application inadmissible. A reasonable scenario is for Chile to raise the following objections: i. Deny the Existence of a Maritime Dispute between Peru and Chile This exception has already been anticipates by the Minister of Foreign Affairs of Chile, Alejandro Foxley199 himself, who has pointed out in several opportunities United Nations, Recueil des sentences arbitrales, vol. XI, p.188.

ICJ, Recueil, 1973, p. 18.

195 ICJ, Recueil, 1952, p. 212.

196 ICJ, Recueil, 1988, p. 105.

197 Cf. ICJ, Affaire de L´usine de Chorzów, compétence, Série A, No. 9, 1927, p. 32.

198 Subsection 2 of the Rules of Procedure of the Court establishes the rules for the submission of preliminary objections. Paragraph 1 sets out: “Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial. ( )”. After hearing the Parties express their rights, the Court renders a judgment by which “it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.” cf. Rules of Court, International Court of Justice, subsection 2, number 9, 1978.

199 Cf. La Republica, Lima, 19 October 2007.

193 194

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that Chile does not recognize the existence of any legal dispute with Peru on maritime boundaries because they have already been settled by treaties in force.

For international law it is not sufficient for any of the parties to deny the dispute to consider that it does not exist or it is denied. Determining the existence or not of a dispute is an objective fact, irrespective of the opinion or willingness of the parties. The Court is called upon to determine, based on its jurisprudence, whether or not there is a dispute. To this end, the Court specifically resorts to the cases concerning the interpretation of Peace Treaties (Bulgaria, Hungary, and Romania)200, certain property (Liechtenstein vs. Germany) and preliminary objections201. The existence of the Peru-Chile maritime dispute is a legal and material reality, irrespective of the subjective will of the parties.

The objectivity of the dispute is a material and legal fact arising out of opposing interests, interpretations, and thesis on the same matter. Based on these considerations, the Court has defined, in a clear and precise manner, what is and when there is an international juridical dispute. The classical definition is contained on the Mavrommatis vs. Palestine case: “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.”202 This definition was further confirmed in the judgment of 3 February 2006, in the case of Armed Activities on the Territory of the Congo: “In order to establish the existence of a dispute, ‘it must be shown that the claim of one party is positively opposed by the other’”203. The objective existence of the juridical dispute between Peru and Chile is long standing, systematic, and recurring. There is some background from the 60’s regarding the seizure of fishing vessels. In 1986, when Peru asked for diplomatic negotiations to delimit the maritime boundaries, it made the dispute explicit204. On the other hand, the Government of Chile, through its numerous and systematic declarations has affirmed the inexistence of the dispute and has stated that such dispute was settled in 1952 —a position that is objectively opposite to that of Peru.

On 20 October 2000, the dispute once again surfaced. Peru sent a Note expressing its disagreement with the statement indicating that there is an alleged maritime 200 Cf. Avis Consultatif, “Interprétation des Traités de Paix avec la Bulgarie, La Hongrie et la Roumanie” Recueil, 1950.

201 Cf. ICJ, “Affaire relative a certains biens (Liechtenstein/ Allemagne)”, Recueil, 2005.

202 Cf. PCIJ, Arrêt No. 2, “Concessions Mavrommatis en Palestine”, 1924, serie A No. 2, No. 11. This definition has been consistently ratified by the Court through it jurisdiction, especially in the following cases: ICJ, Arrêt, “Cameroun septentrional, exceptions préliminaires”, Recueil, 1963, p. 27; ICJ, Avis consultatif, “Applicabilité de l´obligation d´arbitrage en virtue de la section 21 de l´accord du 26 juin 1947 relative au siège de l´Organisation des Nations Unies", Recueil, 1988, p.27; and ICJ, Arrêt, "Timor Oriental (Portugal vs. Australie)," Recueil, pages 99-100.

203 Cf. ICJ, Recueil, 1962, p. 328.

204 Embassy of Peru, Note 5-4-M/147 addressed to the Ministry of Foreign Affairs of Chile, 23 May 1986.

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boundary running through Boundary Marker No. 1 of the land frontier, as depicted in the map of the Bay of Arica, published that year by the hydrographic and oceanography service of the Chilean navy: The Ministry of Foreign Affairs […] has recently known that the Hydrographic and Oceanographic Service of the Chilean Navy has published a Nautical Chart called ‘Rada y Puerto de Arica’, in which appears a line that passes over the sea by the parallel of latitude of Boundary Marker 1 of the Peruvian-Chilean land boundary with the indication “maritime boundary. Regarding this matter, the Ministry of Foreign Affairs hereby conveys its disagreement with the cartographic tracing of that line and with the indication made on the abovementioned Nautical Chart, since there is no specific treaty for the delimitation of the maritime boundary between the two countries […]205.

Here, the dispute is clearly expressed; i.e., this is the formal defense of two opposing positions on the existence or inexistence of maritime boundaries between the two countries. On 9 January 2001, Peru objected to the Notice made by Chile to the United Nations by which Chile pointed out parallel of latitude 18°21’00” as the maritime boundary line. In the corresponding Note, the Ministry of Foreign Affairs of Peru remarked that such statement had no legal grounds and reaffirmed that between the two countries there were no maritime boundaries whatsoever206. The two countries formally expressed their opposing positions on 10 April 2001, when Chile placed a Surveillance Booth in Peruvian territory.

The Notes that I, as the Minister of Foreign Affairs of Peru, exchanged with the Minister of Foreign Affairs of Chile, Soledad Alvear, between July and September 2004 clearly illustrate, with no ambiguities whatsoever and formally, the existence of different and opposing juridical views on maritime delimitation.

These Notes, as has been mentioned, substantiate the dispute at the highest level —with those who represent the States’ foreign affairs. Moreover, such Notes eloquently specify the terms of the dispute. In Note N° (GAB) 6/43 of 19 July 2004, which I sent inviting the Government of Chile to immediately commence diplomatic negotiations to solve the dispute, I clearly stated Peru’s position pinpointing that Peru and Chile have yet to delimit their corresponding adjacent areas and, additionally, I reminded them that “(…) other Notes have been exchanged between Peru and Chile that reveal totally dissenting and opposed juridical positions about the maritime delimitation, all of which in accordance with the international law, outline a juridical dispute.”207 Ministry of Foreign Affairs of Peru, Note addressed to the Embassy of Chile, 20 October 2000.

Official Statement of Peru, 09 January 2001.

207 Note No. (GAB) 6/43, 19 July 2004.

205 206

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In her response on 10 September 2004, the Minister of Foreign Affairs of Chile reaffirmed the position of her country, and once again made objective the juridical dispute: […] I am pleased to coincide with Your Excellency insofar as recalling the joint effort to achieve a close cooperation in maritime affairs and particularly in the establishment of the 200 mile maritime zone, as well as the fundamental agreements that gave rise to the South Pacific System. In this same spirit and with an equal conviction of the importance of the cooperation developed between our countries, I find it necessary to express Your Excellency that it is not appropriate to refer to negotiations of treaties in force, that have established the maritime boundary between Chile and Peru at parallel 18°21’03’’.208

The legal dispute undoubtedly springs from the texts of the two Notes. These texts would suffice to prove that there is a dispute; however, as has been stated, the support of the dispute as a material and juridical matter shall be permanent and repeated over time.

This reiteration over time is evidenced almost every day, through formal communications between the two Governments, statements by the Heads of States, Misters of Foreign Affairs and other national authorities, communications to third countries, press releases, and copious documents which are systematically exchanged by the Chief of the IV Naval Zone of the Naval Commander’s Office, Maritime Governors Office and the Captaincy of the Port of Arica with the Consul General of Peru that city. Hence, for instance, on 03 January 2005, Second Lieutenant LT, officer of the Maritime Governors Office of Arica, informed the Consul General of Peru that a Peruvian vessel, Isurus I, had been seized for being at the position 18°39’9” South latitude and 70°18’08” West longitude, “this is 20 nautical miles south of the international political boundary and 16 nautical miles west of the Port of Arica.”209 In response to this communication, the Consul General of Peru in Arica, under the same terms in which systematically and for a long time those authorities have exchanged communications, said: […] I hereby address you this letter, with due respect, in order to acknowledge receipt of your communication (Fax No. 001) from the Maritime Governor’s Office of 03 January 2005, in which you inform us that a small Peruvian vessel called Isurus I has been seized […] I would also like to specify regarding the reference made in such Note to “International Political Boundary” that this 208 Minister of Foreign Affairs of Chile, Alvear, Maria Soledad, Note addressed to the Minister of Foreign Affairs of Peru, Manuel Rodriguez Cuadros, 10 September 2004.

209 Cf. Official service of the Maritime Governor’s Office of Arica, Communication addressed to the Consul General of Peru in Arica, 03 January 2005.

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Consulate General believes it is a good time to insist on Peru’s permanent position in the sense that the International Maritime Boundary between the two countries has not yet been determined.210

All of these records which proof objectively the existence of a dispute of juridical nature concerning maritime boundaries between Peru and Chile are undisputable.

These are statements, documents, reports, Notes, official communiqués in which each country has expresses a different and opposing juridical position. Every year, dozens of notes are sent on this regard between the Consulate of Peru in Arica and the Chilean Maritime Authorities and in which each country affirms its juridical position opposing the other Party’s; hence the dispute is further evidenced.

All of these instruments are unilateral by nature, i.e., they are documents or acts established by each of the two States independently by which they affirm their opposing views on the matter. This is more than sufficient for the dispute to be a juridical reality with an objective nature. Nevertheless, there is a definitive fact: a bilateral document jointly issued by the two countries in virtue of which the dispute is substantiated. Their juridical relevance and effects are of the utmost importance.

This is a joint communiqué signed by the Ministers of Foreign Affairs of Peru and Chile, whose acts, pursuant to the Vienna Convention, bind the States, in which they recognize jointly, formally, and publicly the existence of a maritime dispute, its juridical nature, and its bilateral feature. This notice, which I signed in my capacity as the Minister of Foreign Affairs of Peru, along with my counterpart, the Minister of Foreign Affairs of Chile, Ignacio Walker on 04 November 2004, in Brasilia, under the following terms: We, the Ministers of Foreign Affairs of Peru and Chile have met within the framework of the XVIII Summit of Heads of State and Government of the Rio Group and have revised all aspects of the bilateral relation. In such context, we have coincided in the good condition of such relation and, particularly, on the dynamism of the economic and commercial relations, as well as on all matters related to institutional cooperation.

We, the Ministers have reiterated that the subject of the maritime delimitation between both countries, in respect of which we have different positions, is a question of juridical nature and it strictly constitutes a bilateral issue that must not interfere in the positive development of the relationship between Peru and Chile [emphasis added by the author].

210 Cf. Consul General of Peru, communication sent to the Lieutenant Commander, Captain of the Port of Arica, 03 January 2005.

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We, the Ministers of Foreign Affairs, have both emphasized the importance of the next visit to Peru of the President of the Senate and of the Commander-in-Chief of Chilean Army.

These visits are the expression of the positive political willingness of the Governments of Peru and Chile to continue developing all the cooperation aspects of the bilateral relation. Within this framework, we have decided that the Minister of Foreign Affairs of Chile should make an official visit to Peru before 31 December of the present year. Accordingly, the Minister of Foreign Affairs of Peru will make an official visit to Santiago on the first quarter of 2005.

Also, the Ministers of Foreign Affairs of Peru and Chile, when highlighting the next meeting of Presidents of both during the APEC Summit, reaffirms the willingness of their Governments to begin the process aimed at negotiating a Free Trade Agreement.

Rio de Janeiro, 4 November 2004.

Manuel Rodriguez Cuadros

Minister of Foreign Affairs of Peru

Ignacio Walker

Minister of Foreign Affairs of Chile

This communiqué, signed by the Ministers of Foreign Affairs of Peru and Chile, addresses the maritime dispute between the two countries almost in the same terms used by the International Court of Justice in the Mavrommatis vs.

Palestine case: a question of juridical nature regarding which the two countries have different positions. Almost literally, this is the definition of juridical dispute given by the Court:” a dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”. So that there is no doubt on the applicability of Article XXXI of the Pact of Bogota, which requires that, in addition to existing a dispute, such controversy must be of juridical nature, the two Ministers of Foreign Affairs specify that, although Peru and Chile have different positions, we agree that the question of the maritime delimitation “is a question of juridical nature”.

After the signing of the Rodriguez Cuadros-Walker communiqué, the Ministry of Foreign Affairs of Chile has denied that this communiqué has recognized the existence of a dispute. However this statement, given the formal, precise, unequivocal nature of the joint communiqué dated 4 November 2004, it is certainly irrelevant; as we have mentioned the fact that one of the parties denies the existence of a dispute is irrelevant for its recognition, since it has an objective existence and only the Court has jurisdiction to determine whether or not there is a dispute and what elements it has.

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The dispute on the Peruvian maritime space upon which Chile issues rules, alleging it is high seas, has been evidenced again when the Government of Chile submitted a reservation to the United Nations Secretary-General regarding the cartography and registration of the maritime domain of Peru. In such reservation, the Government of Chile affirms: The Government of the Republic of Chile expresses its disagreement to the use Peru has made of this means to disseminate positions that disregard the treaties existing on maritime delimitation with Chile. The Supreme Decree in question and the map included intend to attribute to Peru a maritime area which is fully under the sovereignty and sovereign rights of Chile, as well an area of high seas adjacent to it. The projections that Peru shows to the south of the boundary limit in force are not acceptable to Chile and are devoided of any international legal effect.

Taking into account the definition of the Court on the Mavrommatis vs. Palestine case, the existence of a maritime dispute between Peru and Chile is an objective juridical fact; the two Governments have given their opposing viewpoints on three key situations: 1. Peru affirms that there are no maritime boundaries between the two countries, in all maritime spaces in which international law recognizes sovereignty and jurisdiction to the States, i.e., the territorial sea, the contiguous zone, the continental shelf and the exclusive economic zone211. These boundaries shall be determined by operation of equitable principles and the rules of international law in force. Chile believes, on the contrary that the boundary would have been established in virtue of the 1952 Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone, which would have been confirmed through practice, through parallel of latitude 18°21’00”. Peru ascertains that no clause in these treaties, in force and valid, establishes any maritime boundary between the two countries; nor is there a clause establishing the boundary through any parallel of latitude whatsoever, let alone through parallel of latitude 18°21’00”.

2. The opposing legal views and interests on where the maritime boundary begins. Peru, believes that this point can not be other than the terminus of the land boundary established in the 1929 Treaty and its Additional Protocol, i.e., the intersection of an arch with the seashore, called Concordia. This point on the seashore is located on parallel of latitude south 18°21’08”. The Government of Chile believes that the starting point of the maritime boundary 211 These spaces, in Peruvian domestic law are governed by the maritime domain institution up to 200 miles, as set forth under Article 54 of the Constitution of the State.

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is somewhere inside the territory, at coordinate of latitude 18°21’00”, exactly where Boundary Marker No. 1 of the land boundary is located.

3. Chile, through its domestic laws, has undertaken jurisdictional powers over a big space of the maritime domain of Peru (28,486.4 km2), which considers an area that corresponds to the high seas, regarding which it ascertains to have rights for conservation, preferential economic exploitation and administrative jurisdiction as a result of its presential sea thesis. Peru affirms that this area, in accordance with the legal entitlement stemming from the principle of adjacency, enshrined in international law, is part of its maritime domain, regarding which no other State can perform any legislative or jurisdictional acts.

These are the three key components of the maritime dispute, with a juridical nature, existing between the two countries. ii. Direct Diplomatic Negotiations Have Not Been Concluded, as Required by Article IV of the Pact of Bogota.

Conclusion of direct diplomatic negotiations is an irreplaceable formal requirement in order to apply Article XXXI of the Pact of Bogota, and therefore, for the Court to admit the Application by operation of this Article.

Article II establishes that it is only possible to turn to the pacific procedures established in the Pact when the dispute, in the opinion of the parties, “cannot be settled by direct negotiations through the usual diplomatic channels.”212 This provision is aimed at preserving direct negotiation as a prior instance to the application of different dispute settlement procedures established in the Treaty.

Since the judicial instance is an option to arrive at a solution that focuses purely on the law, in many cases one of the parties believe it is more appropriate to its interests to avoid the judicial channel and insist on direct negotiation as an acceptable way to settle their disputes, or at least try to settle the dispute before submitting it to the Court. This preliminary objection is expressed through the willingness to prevent the judicial instance encouraging diplomatic negotiations.

However, it is not an easy matter to determine under what circumstances and under what characteristics diplomatic negotiations are deemed concluded and therefore enable to resort to the Court. There are many gray areas on this matter. Is there a need for a formal act to bring diplomatic negotiations to an end or the impossibility of conducting such negotiations? Is it enough for one of the parties to state that it is no longer possible to seek agreed solutions? Is 212

Cf. American Treaty on Pacific Settlement (Pact of Bogota), 1948, Article II. 236

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the simple interruption of the negotiating procedure sufficient to consider that the requirement in Article II has been satisfied and the party can resort to the Court? If there have never been negotiations, does this fact prove that direct negotiations were concluded?

The Court has decided to assume a flexible criterion which combines subjective and objective aspects concerning the conclusion of direct negotiations. A first observation is that the parties must act under the principle of good faith. A second conclusion, derived from the Court’s jurisprudence, is that the conclusion of diplomatic negotiations shall respond to the notions of here and now, i.e., a temporal criterion almost contextual. A third criterion is related to not jeopardize the solution of the dispute in the judicial instance if at the time of the Application diplomatic negotiations are halted or not viable, even if this is provisional.

The Court has expressed on this matter, and in that sense, on several occasions, most specifically in the judgment on the jurisdiction and inadmissibility of 20 December 1988, concerning the Border and Transborder Armed Actions (Nicaragua vs. Honduras)213. In addition, in this case, the Court’s opinion has been motivated specifically by opposing arguments on the fulfillment of this condition in the framework of the provisions of the Pact of Bogota.

The Government of Honduras presented an objection of inadmissibility on the basis that Nicaragua had not concluded the possibility of prior diplomatic negotiations as set out in Article II of the Pact of Bogota. The arguments of Honduras were based on the conciliation efforts of the Contadora Group,214 which continued to deploy its good offices, and hence arriving at a negotiated solution was still a possibility.

In its judgment, the Court did not agree with Honduras and dismissed the preliminary objection of inadmissibility pointing out that in accordance with Article II of the Pact, it is not necessary to have a formal act to state that a pacific procedure has “concluded.” This procedure need not have failed fully before a new one can commence. All that matters is that on the date when the new procedure begins, the other procedure has arrived at a standstill to such an extent that there is no sight of continuance or resumption thereof215.

With this judgment, the Court established a sound jurisprudence antecedent regarding the construction of Article II of the Pact of Bogota, in the sense 213 ICJ, Arrêt “Actions Armées frontalières et transfrontalières (Nicaragua/Honduras)”. In: Recueil, 20 December 1988.

214 Cf. ICJ, Recueil, 1988, pp. 93-103, para. 70-44 and 81-88.

215 Ibid.

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of the conclusion of diplomatic negotiations need not be final for a State to consider them concluded and resort to the judicial settlement established under Article XXXI. The Court believes that the enablement to resort to a judicial proceeding only refers to the impossibility to settle the dispute through diplomatic negotiation on a key date, i.e., that of the date of submittal of the Application.

If at that time there is objectively a situation that impedes or does not admit the possibility of a negotiated solution, the conclusion thus operates and the judicial option is enabled. This is irrespective of other possibilities opening up afterwards or even the establishment of diplomatic negotiations on the matter, even simultaneously to the judicial procedure.

The Court has ascertained, in this way, a rightful dynamic vision of diplomatic negotiation conclusion, disregarding any external argument. This is also consistent and coherent with the rule under Article 88.2 of the Rules of Court, which establishes that the contentious cases submitted to its jurisdiction can finish, amongst other reasons, by joint and simultaneous agreement of the parties to the judicial procedure.216 If the requirement to conclude diplomatic negotiations were absolute, it would not be possible to begin simultaneously the judicial procedure.

For this reason, and despite the arguments of Honduras in the sense that the Contadora Group is still available and in action was always an open door and not concluded negotiation, the Court decided in its judgment that: “the procedures employed in the Contadora process up to 28 July 1986, the date of filing of the Nicaraguan Application, had been ‘concluded’, within the meaning of Article IV of the Pact of Bogota, at that date.”217 Based on this, the Court dismissed the objection filed by Honduras and declared that the requirement of concluding direct negotiations was satisfied.

In the Nigeria vs. Cameroon, the Court dismissed, following the same line of thought, the second preliminary objection filed by Nigeria, who had asked for the Application to be declared inadmissible because the two parties had reached a prior agreement to settle their land and maritime dispute through diplomatic negotiations. After assessing each party’s arguments, the Court ordered that the negotiations Nigeria was referring to had reached a halt at the time the Application had been filed; hence, the requirement to have concluded all direct negotiation was deemed satisfied and the objection of inadmissibility was dismissed218.

ICJ Rules of Court, 14 April 1978, Article 88.2: “If the Parties have agreed to discontinue the proceedings in consequence of having reached a settlement of the dispute and if they so desire, the Court may record this fact in the order for the removal of the case from the list, or indicate in, or annex to, the order, the terms of the settlement.”

217 ICJ, Recueil, 1988, p. 105, para. 93.

218 ICJ, Recueil, 1989, p. 304, para. 58.

216

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In the Peru-Chile case, the question is much simpler since there is no prior negotiation process; on the contrary, the Government of Chile has expressed clearly its decision not to negotiate. Two reasons support the lack of grounds for a potential preliminary objection of this sort: First, the existence of formal acts of conclusion of all direct diplomatic negotiation instances. Mainly, the exchange of Notes I had with the Minister of Foreign Affairs of Chile, Soledad Alvear between July and September 2004.

On that occasion, Peru formally —in good faith— invited Chile to commence direct negotiations and Chile denied doing so, hence concluding this instance as required by Article II of the Pact of Bogota.

Second, it would be paradoxical for the Government of Chile to use the argument that direct negotiations have not been concluded when it actually denies the existence of any dispute and objects to any negotiation whatsoever. iii. The Application Would Not Be Admissible Because, Pursuant to Article VI of the Pact of Bogota this is a Dispute that Has Already Been Settled by International Treaties Confirmed through Practice Article VI of the Pact of Bogota, which the Government of Chile could resort to invoke this preliminary objection, excludes the jurisdiction of the Court, “(…) matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty”219.

In accordance with this provision, matters already settled by any dispute settlement mechanisms on the date of the conclusion of the Pact of Bogota (30 April 1948) cannot be subject to the application of Article XXXI; and, consequently, should not be admitted by the International Court of Justice.

This provision establishes an exception to the application of Article XXXI. In order for this rule to operate, two requirements need to be satisfied: that the matter has already been settled —evidence thereof would have to be produced— and that such solution was achieved before 30 April 1948, the date of the conclusion of the Pact of Bogota.

Neither of these two elements is present in the Peru-Chile case. First, the matter has not been settled. However, it is possible to argue that for Chile it has been.

Nevertheless, on this matter, the juridical instruments that according to Chile would have settled the dispute were concluded after 30 April 1948 (1952 and 219

American Treaty on Pacific Settlement, Article VI. 239

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1954). Hence, even in this scenario, the elements required for inadmissibility are not present, as per article VI of the Pact of Bogota.

In the light of the text of the Declaration of Santiago and the 1954 Agreement relating to a Special Maritime Frontier Zone, the boundaries have not been fixed.

The dispute is unresolved. However, if the opposite is brought up, it is obvious that the preliminary objection would be a prejudgment and assimilation a procedural motion of inadmissibility to decision on the substance of the matter.

In this scenario the Court, could not admit an objection whose resolution would be deciding the substance of the matter.

When the Court has confronted situations like this, the Court has resolved the preliminary objection at the same time as the matter of substance, by admitting the Application and settling the two questions in the final judgment.

Colombia has filed an objection of this nature with regard to the Application filed by Nicaragua on the case concerning the maritime delimitation in the Caribbean Sea. This case is similar to the Peru-Chile case to a certain extent.

First, Colombia and Nicaragua have already signed a boundary delimitation treaty, which Nicaragua says is invalid. Second, that treaty was signed before the signing of the Pact of Bogota. In the Peru-Chile case there is no treaty on delimitation and the instruments which Chile asserts established the maritime boundary were signed after the Pact of Bogota.

The juridical arguments of Peru, on all matters regarding the jurisdiction of the International Court of Justice and the admissibility of a potential Application are sound and are supported by the Court’s jurisprudence. In this sense, we can anticipate that in the event of an Application, the Court will render a judgment on both its jurisdiction and admissibility that will be favorable to Peru.

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V HISTORICAL SENSE OF THE RELATIONS BETWEEN PERU AND CHILE

The relations between Peru and Chile are consistent with an inter-state and inter-social connection method characterized by recurrence of certain historical determination. This is not a subjective matter, since it does not necessarily depend on political-decision makers. It does not depend on the goodwill of Heads of State, either. It is a complex connection, with deep social and historical roots. It is the kind of diplomatic relations that should not be conducted based on current situations, but rather on mid and long term visions, and in which State diplomacy should open doors and encourage relations between the peoples of either country.

Competition and conflict have characterized a long period of the history of the relations between Peru and Chile. If we flout the more than four thousand years of Andean civilizations and the three hundred years of the Colonial period —times when the political societies and economies of Peru exercised power and culturally influenced the South with no counterbalance whatsoever— the Peru-Chile relations, limited to the Republican period, have been marked by predominantly military, economic or diplomatic conflict.

From 1826 to 1883, the bilateral relations were conditioned by the vision of Diego Portales, a Chilean politician who, in the early XIX century, promoted in Chile the thesis that his country should obtained hegemony in the South Pacific and prevent the reintegration of Low and High Peru. This national determination produced, first, the war of Chile against the Peru-Bolivia Confederation and, later, the 1879 War. Before that, between 1833 and 1834, there was a serious commercial conflict, “the tariff war,” which heated up to a tense situation between the two countries. Since 1883, when the war had ended with the signing of the Ancon Treaty, Peru-Chile affairs focused on solving the diplomatic disagreement caused by the transfer of Tarapacá to Chilean sovereignty, the occupation of Tacna and Arica, and the diplomatic process which would determine the ultimate destination of the seized province.

This process practically ended with the 1929 Treaty and its Additional Protocol; however, its implementation extended the diplomatic dynamics of confrontation or the differentiation of interests on territorial matters until 1999, when the

Maritime Delimitation with equity: the Case of Peru vs. Chile

Act of Execution of the 1929 Treaty220 was signed. Being its contents basically reduced to one pending issue, this dynamics of opposing interests continued until the present time in connection with the maritime delimitation dispute.

Certainly, the wars, its after-effects, the territorial transfer, the diplomatic negotiation of interests related to the national space have predominantly marked the Peru-Chile relations during almost the entire Republican lives of the two countries. This confrontation is part of the historical knowledge of the peoples of the two countries and of the social awareness. However, at the same time, there continues to be dynamics of cooperation and integration, with important achievements, such as the free trade regime established in the early years of the Republican period, the coordinated actions to defend national sovereignty visà-vis third parties in the XIX century, the joint integration project within the scope of the Andean Group, and more recently the shared extension towards the Pacific Basin.

Nowadays, evidently, the integration areas of foreign policies and national interests of the two countries have expanded and augmented. Economic cooperation and political cooperation are the avenues through which routine diplomatic activities between the Ministries of Foreign Affairs of Peru and Chile flow with different levels of depths and consolidation capacities in the areas of foreign trade, promotion of human rights, fight against drug trafficking, preservation of democratic institutions, restructuring of United Nations and the strengthening of multilateralism, preservation of the environment and concerns for climate change, international social policies (the fight against poverty, employment, health, women’s empowerment, fulfillment of the millennium goals), multilateral trade negotiations, defense of the traditional knowledge of native communities so that their intellectual property rights are acknowledged, and, finally, among others, matters related to international peace and security, in which —fortunately— the two countries have similar positions.

All these areas of positive agreement make up a dynamic cooperation that have silently gained strength and are also part of the historical memory.

At the same time, the fora of common actions and policy agreement have further expanded through each country’s presence in: Latin American Trade Integration Association (ALADI), Permanent Commission for the South Pacific (CPPS), South American Community, Rio Group, Organization of American States, Ibero-American Summit, Summit of the Americas, and all bodies and instances of the United Nations System. Exchanges between the two States 220

Act of Execution of the 1929 Treaty, 13 November 1999.

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V - Historical Sense of The Relations Between Peru and Chile

and between their peoples have become more intense and systematic, and count with a highly developed institutional framework for the promotion of political dialog, frontier cooperation, and economic exchange: meetings of Heads of State and Ministers of Foreign Affairs, the Permanent Political Consultation and Coordination Commission —comprising the Ministers of Foreign Affairs and Defense— rounds of conversation of high officials of the armed forced, Permanent Cooperation Bi-national Commission, The Permanent Joint Boundaries Commission, the Frontier Committee, Technical and Scientific Cooperation Commission, and the Joint Cultural and Education Commission.

Hence, there are spaces for cooperation and agreement as well as dialog and understanding mechanisms at different levels, very broad and plural but perhaps they are too inter-governmental and not very inter-social. That is true, but they are there and, in practice, they have shown to be quite efficient, at very acceptable levels.

In the strictly bilateral arena, between 2001 and 2005, two significant projects of social diplomacy (the one which satisfies people’s needs) were implemented and, consequently, have allowed, on one hand, citizens of either country to visit the other country with only their identity document —hence eliminating any passport— and, on the other hand, contributions to the social security systems by immigrants are recognized reciprocally in either country. More recently, in addition to this positive dynamics of social diplomacy, the Government of Chile has decided to regularize the legal situation of foreign citizens from twentyone countries. Approximately fifteen thousand Peruvian immigrants will benefit from such measure221.

Trade increases systematically. In 1997, trade accounted for 461 million US dollars; in 2004, it was up to 1.222 billion US dollars. The balance of trade was negative for Peru in 1997; yet, the tables turned in 2004. That year, Peru exported 694 million US dollars and imported 566 million US dollars. In 2005 and 2006, the balance of trade has been favorable to Peru. However the composition of this trade is uneven. While Peruvian exports are mainly commodities and specifically from the mining industry —molybdenum and oil, which account for over 60% of Peruvian exports to Chile and the five top tariff items account for 80% of total exports— Chilean exports mainly consist of manufactured products and the five top products only account for 30% thereof, thereby confirming that the export structure of Chile is more diversified, including manufactured goods222.

Cf. Resolution Ex. 36339, 21 October 2007.

Figures taken from Fairlie, Alan & Queijo, Sandra, Relaciones Económicas Perú-Chile: integración o conflicto, Lima, CISEPA & PUCP, 2007.

221 222

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Chilean investments in Peru have reached an accrued figure of 4.6 billion US dollars; this influx of investment has been positive for Peruvian economy and has generated, evidently, employment. Such investments are quite diverse and are focused on sensitive areas, such as air transportation, agri-business, financial and banking sector, ports, electricity sector, hydrocarbons, among others223.

Nevertheless, within the scope of historical factors and social determinations of the bilateral relation, economist Alan Fairlie wonders whether this economic relations structure will lead to integration or renewed conflict. The question is quite pertinent and the answer could possibly take us to the two realities; and, this not necessarily due to reactions in Peru. In the Lucchetti case, what called our attention was the intention to elude Peruvian laws and favor diplomatic arrangements as an alternative to the ICSID arbitral instance, whose awards ultimately favored Peru224.

In a relation subject to deep forces of international policies, the combination of investments in very sensitive sectors and a possible political-diplomatic intervention in dispute settlements or in the promotion of the interests of companies- can be an outbreak factor, generating tensions. It is necessary, in this context, to prevent inconvenient situations and the best way to do so is to respect the application of the laws in either country, without interfering in the judicial proceedings or in the agreed arbitration instances for the settlement of disputes.

More complex yet is the issue connected to the defense and acquisition of weapons. The present imbalance is quiet obvious and the purchase of weapons

by Chile has generated, quite naturally, apprehension across the entire region.

Weapons are purchased to address defense strategies or conflictive hypothesis.

And, in the case of Chile, those two motivations are not as closely related to Argentina as they are to another of its neighbors: Peru.

In addition, in the last few years, there have been incidents causing major concerns.

In 2004, the discovery that the Government of Chile had sold and supplied weapons and military gear to Ecuador during the Cenepa Conflict (1995) is an ascertainment that goes against all rules of peaceful coexistence, moderation, and mutual respect. In light of these events, Peruvian diplomacy was firm and serene, requiring explanations for such events. After some consultations, the Government of Chile finally gave such excuses225.

Ibid.

Cf. International Center for Settlement of Investment Disputes, Award dated 07 February 2005, Case ARB/03/4, Lucchetti S.A./Government of Peru.

225 The Joint Statement signed with the Minister of Foreign Affairs Ignacio Walker, pointed out that in 223 224

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We need to avoid a continuous arms race, which by definition is incompatible with the need of the peoples of the two countries. Deep thoughts on the interrelations of defense policies and foreign policies are necessary to face with responsibility the real problem of military expenditure and the strategicconventional imbalance between the armed forces.

At the same time, there are old and archaic perceptions that instill mistrust and natural national sensitivities. There is no rational explanation, for instance, that military sectors insist on commemorating the national day of Chile around the world —including in Lima— year after year, as one of the “Military Glories of the Chilean Armed Forces.” This is not only an archaic commemoration, perhaps understandable in the times of Augusto Pinochet, but non-understandable in times of stable democratic systems. This is certainly a very offensive leit motiv for a country that suffered with the consequences of the occupation and the imbalances of such glories. This is one of the old ties that must be overcome urgently in order not to stall the relationship over one of the most conflictive aspects of the past. The subsistence of landmines and anti-tank mines in the frontier line, which continue to kill innocent people, is another example of the questions that need to be solved and overcome in bilateral affairs.

Attitudes that pay homage to the power game of the XIX century —now outdated amidst globalization and unrelated to the good neighborhood spirit and the commitment to the future that binds the peoples of Peru and Chile— also have an impact on other sensitive affairs of the bilateral relations.

These examples show the error in perception existing in certain official approaches which continue to tie important aspects of the relations to an inconvenient and archaic glorification of past conflicts. These must be surmounted. the talks held in connection with this subject: “(…) the Ministry of Foreign Affairs of Chile referred to the Public Statement made by such Ministry on 11 May 2005 and formally disclosed the explanations and excuses for the events of January-February 1995. The Ministers of Foreign Affairs of Peru and Chile regret such events.” This statement is important for three reasons: 1) The Government of Chile’s explanations and excuses were made public and formal. 2) The statement about the events was general and not specific about the delivery of weapons on a given day; hence such explanations and excuses cover any other weapon delivery that could have existed. 3) In line with the foregoing, the explanations and excuses did not just address the events denounced for a specific date, but all of those that could have happened between February and March 1995. Cf. Joint Public Statement of the Ministers of Foreign Affairs of Peru, Manuel Rodriguez Cuadros, and of Chile, Ignacio Walker, Lima and Santiago, 22 May 2005. This document is a positive expression of how tensions should be managed amidst a sensitive relationship. Previously, on 29 April 2005, the Minister of Foreign Affairs of Peru made public an official communiqué in which the sale and delivery of weapons had been confirmed.

The text of such communiqué and its publication was prepared and authorized by the author, in coordination with the President of the Council of Ministers, Carlos Ferrero, who was in charge of the Ministry of Foreign Affairs.

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Peruvian diplomacy, on the other hand, has done a good job at returning the remains of Chilean casualties from the 1879 War so that they may be buried with honors in their home country.

XXI century diplomacy must overcome such conflictive historical determinations of the Peru and Chile relations. But this cannot be achieved by imposing the views of one country over those of the other, or with archaic diplomatic expression like the ones described. On the contrary, it implies the respect for each national history. And in doing so, as Basadre used to say, learning lessons from the past in order to avoid making the same mistakes in the present and in the future, and, thus, drive relations upon solid foundations of friendship and cooperation in light of mutual respect and agreed balance.

Diplomacy, not the one of the future, today or yesterday, but a timeless diplomacy has some rules whose compliance could contribute to increase the dynamics of cooperation and good understanding of our nations: Rule One: in a relationship with high intensity in its historical components and of high density of its inter-government and inter-social interactions, such as the Peruvian-Chilean, good neighborhood spirit is forged, not declared, and is achieved by facing the problems —not hiding them— in order to find solutions which shall always respect each parties national determination and keep a healthy balance, and strictly apply the principle of mutual benefit.

Rule Two: do not try to change or to artificially rewrite the past; on the contrary, it shall be studied with a critical sense in order to draw lessons and shall determine new generations not to follow the same paths that resulted in conflicts instead of negotiation, solidarity, and peace.

Rule Three: constructively and positively processing the past entails moderation and good sense of sensibility in handling the language and the use and significance of symbols, among which is the non-glorification or militarization of victory or non-vindicated revenge.

Rule Four: promote a culture of peace, mutual identity, solidarity, and integration which the peoples, almost spontaneously, know intuitively as a new freedom in the relations between the two countries.

Rule Five: to achieve balance on economic affairs, diplomatic agreements and military relations, so as not to hurt national sensitivity which exacerbates when there are unequal or asymmetric situations that are unacceptable.

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Rule Six: trust international law as a means to settle disputes, which is comparable to, at an internal level, adhering to democratic institutionalism, which grants the law the wise role of resolving disputing interests. This viewpoint is radically opposed to the old idea of trampling on the national interests of the other party.

To look into the XXI century in a serious and responsible manner, the PeruChile relations require opening up and renewed diplomacy, capable of identifying and solving problems. With this, it shall be possible to promote strengthened cooperation and integration dynamics with bilateral governance based on four criteria from constructive realism: good faith, balance and responsible sensibility, mutual respect, and reciprocal benefit.

The solution to the maritime dispute through the jurisdiction of the International Court of Justice is an expression of good sense and with a view into the future. It also means contributing to providing Peru and Chile with vital historical stability.

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ANNEXES

1. Supreme Decree 781, 1 August 1947 The President of the Republic: Considering: That the continental submerged shelf forms one entire morphological and geological unit with the continent; that the shelf contains certain natural resources which must be proclaimed as our national heritage; that it is deemed equally necessary that the State protect, maintain and establish a control of fisheries and other natural resources found in the continental waters which cover the submerged shelf and the adjacent continental seas in order that these resources which are so essential to our national life may continue to be exploited now and in the future in such a way as to cause no detriment to the country’s economy or to its food production; that the value of the fertilizer left by the guano birds on islands off the Peruvian coast also requires for its safeguard the protection, maintenance and establishment of a control of the fisheries which serve to nourish these birds; that the right to proclaim sovereignty and national jurisdiction over the entire extension of the submerged shelf as well as over the continental waters which cover it and the adjacent seas in the area required for the maintenance and vigilance of the resources therein contained, has been claimed by other countries and practically admitted in international law (Declaration of the President of the United States of 28 September 1945; Declaration of the President of Mexico of 29 October 1945; Decree of the President of the Argentine Nation of 11 October 1946; Declaration of the President of Chile of 23 June 1947); that Article 37 of the Constitution establishes that all mines, lands, forests, waters and in general all sources of natural wealth pertain to the State, with the exception of rights legally acquired;

Maritime Delimitation with equity: the Case of Peru vs. Chile

that in fulfillment of its sovereignty and in defense of national economic interests it is the obligation of the State to determine in an irrefutable manner the maritime domain of the Nation, within which should be exerted the protection, conservation and vigilance of the aforesaid resources; with the advisory vote of the Cabinet: DECREES: 1. To declare that national sovereignty and jurisdiction are extended to the submerged continental or insular shelf adjacent to the continental or insular shores of national territory, whatever the depth and extension of this shelf may be.

2. National sovereignty and jurisdiction are exercised as well over the sea adjoining the shores of national territory whatever its depth and in the extension necessary to reserve, protect, maintain and utilize natural resources and wealth of any kind which may be found in or below those waters.

3. As a result of previous declarations the State reserves the right to establish the limits of the zones of control and protection of natural resources in continental or insular seas which are controlled by the Peruvian Government and to modify such limits in accordance with supervening circumstances which may originate as a result of further discoveries, studies or national interests which may become apparent in the future and at the same time declares that it will exercise the same control and protection on the seas adjacent to the Peruvian coast over the area covered between the coast and an imaginary parallel line to it at a distance of two hundred (200) nautical miles measured following the line of the geographical parallels. As regards islands pertaining to the Nation, this demarcation will be traced to include the sea area adjacent to the shores of these islands to a distance of two hundred (200) nautical miles, measured from all points on the contour of these islands.

4. The present declaration does not affect the right to free navigation of ships of all nations according to international law.

Issued at the House of Government, in Lima, on the first day of August of the year nineteen hundred and forty seven.

Jose Luis Bustamante Y Rivero Enrique GarcĂ­a SayĂĄn

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2. Petroleum Law 11,780, 12 March 1952 “(...) Article 14: For the purposes hereof, the territory of the Republic has been divided into the following four areas: (...)

4) Continental Shelf: This shall be the zone lying between the western limit of the coastal zone and an imaginary line drawn seaward at a constant distance of 200 miles from the low-water line of the continental coast. (...)

Article 61: The following sections shall be considered reserved areas: (...)

2). The zone called Continental Shelf (...)�.

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3. Delimitation of the 200-Mile Maritime Zone, Supreme Resolution 212, 12 January 1955 Considering: That cartographic and geodetic works require a precise method to determine the 200-mile maritime zone of Peru referred to in the Supreme Decree of 1 August 1947 and the Joint Declaration signed by Peru, Chile, and Ecuador on 18 August 1952.

IT IS HEREBY RESOVED THAT: 1. The specified zone is delimited at sea by a line parallel to the Peruvian coast and to a constant distance from such coast of 200 nautical miles.

2. In accordance with paragraph IV of the Declaration of Santiago, the abovementioned line must not cross the parallel which corresponds to the point at which the Peruvian frontier meets the sea.

To be recorded, announced and published.

Manuel A. Odria, President of the Republic of Peru.

David Aguilar Cornejo, Minister of Foreign Affairs

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4. Official Declaration of the Government of Chile establishing a 200-mile maritime area, 23 June 1947 * CONSIDERING: 1. That the Governments of the United States of America, of Mexico and of the Argentine Republic, by presidential declarations made on September 28, 1945, October 29, 1945, and October 11, 1946, respectively, have categorically proclaimed the sovereignty of their respective States over the land surface or continental shelf adjacent to their coasts, and over the adjacent seas within the limits necessary to preserve for the said States the natural riches belonging to them, both known and to be discovered in the future; 2. That they have explicitly proclaimed the rights of their States to protect, preserve, control and inspect fishing enterprises, with the object of preventing illicit activities threatening to damage or destroy the considerable natural riches of this kind contained in the seas adjacent to their coasts, and which are indispensable to the welfare and progress of their respective peoples; and that the justice of such claims is indisputable; 3. That it is manifestly convenient, in the case of the Chilean Republic, to issue a similar proclamation of sovereignty, not only by the fact of possessing and having already under exploitation natural riches essential to the life of the nation and contained in the continental shelf, such as the coal-mines, which are exploited both on the mainland and under the sea, but further because, in view of its topography and the narrowness of its boundaries, the life of the country is linked to the sea and to all present and future natural riches contained within it, more so than in the case of any other country; 4. That international consensus of opinion recognizes the right of every country to consider as its national territory any adjacent extension of the epicontinental sea and the continental shelf; 5. That the State has the obligation to protect and guard the exploitation of the natural riches contained in this territory, on sea, on land, and in the air; The President of the Republic hereby declares: 1.- The Government of Chile confirms and proclaims its national sovereignty over all the continental shelf adjacent to the continental and island coasts of * The International Law Quarterly, Vol. 2, No. 1 (Spring 1948), pp. 135-137 257

Maritime Delimitation with equity: the Case of Peru vs. Chile

its national territory, whatever may be their depth below the sea, and claims by consequence all the natural riches which exist on the said shelf, both in and under it, known or to be discovered.

2.- The Government of Chile confirms and proclaims its national sovereignty over the seas adjacent to its coasts whatever may be their depths, and within those limits necessary in order to reserve, protect, preserve and exploit the natural resources of whatever nature found on, within and below the said seas, placing within the control of the Government especially all fisheries and whaling activities with the object of preventing the exploitation of natural riches of this kind to the detriment of the inhabitants of Chile and to prevent the spoiling or destruction of the said riches to the detriment of the country and the American continent.

3.- The demarcation of the protection zones for whaling and deep sea fishery in the continental and island seas under the control of the Government of Chile will be made in virtue of this declaration of sovereignty at any moment which the Government may consider convenient, such demarcation to be ratified, amplified or modified in any way to conform with the knowledge, discoveries, studies and interests of Chile as required in the future. Protection and control is hereby declared immediately over all the seas contained within the perimeter formed by the coast and the mathematical parallel projected into the sea at a distance of 200 nautical miles from the coasts of Chilean territory. This demarcation will be calculated to include the Chilean islands, indicating a maritime zone contiguous to the coasts of the said islands, projected parallel to these islands at a distance of 200 nautical miles around their coasts.

4.- The present declaration of sovereignty does not disregard the similar legitimate rights of other States on a basis of reciprocity, nor does it affect the rights of free navigation on the high seas.

Gabriel Gonzalez Videla President of the Republic

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5. Declaration of Santiago, 18 August 1952 (Declaration Maritime Zone)*

on the

1. Governments have the obligation to ensure for their people the necessary conditions of subsistence, and to provide them with the resources for their economic development.

2. Consequently, they are responsible for the conservation and protection of their natural resources and for the regulation for the development of these resources in order to secure the best possible advantages for their respective countries.

3. Thus, it is also their duty to prevent any exploitation of these resources, beyond the scope of their jurisdiction, which endangers the existence, integrity and conservation of these resources to the detriment of the peoples who, because of their geographical situation, possess irreplaceable means of subsistence and vital economic resources in their seas.

In view of the foregoing considerations, the Government of Chile, Ecuador and Peru, determined the conserve and safeguard for their respective peoples the natural resources of the maritime zones adjacent to their coasts, formulate the following Declaration: I) The geological and biological factors which determine the existence, conservation and development of maritime fauna and flora in the waters along the coastal of the countries making the Declaration are such that the former extension of the territorial sea and the contiguous zone are inadequate for the purposes of the conservation, development and exploitation of these resources, to which the coastal countries are entitled.

II) In the light of these circumstances, the Government o Chile, Ecuador and Peru proclaim as a norm of their international maritime policy that they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to minimum distance of 200 nautical miles from these coasts.

III) The exclusive jurisdiction and sovereignty over this maritime zone shall also encompass exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof.

IV) In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands * United Nations Treaty Series, Vol. 1006, I-14758 259

Maritime Delimitation with equity: the Case of Peru vs. Chile

belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea.

V) This declaration shall be without prejudice to the necessary limitations to the exercise of sovereignty and jurisdiction established under international law to allow innocent and inoffensive passage through the area indicated for ships of all nations.

VI) For the application of the principles contained in this Declaration, the Governments of Chile, Ecuador and Peru hereby announce their intention to sign agreements or conventions which shall establish general norms to regulate and protect hunting and fishing within the maritime belonging to them, and to regulate and coordinate the exploitation and development of all other kinds of products or natural resources existing in these waters which are of common interest.

Santiago, 18 August 1952.

Julio Ruis Bourgeois – Delegate of Chile Jorge Fernández Salazar – Delegate of Ecuador Dr. Alberto Ulloa – Delegate of Peru Fernando Guarello – Secretary-General

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6. Agreement relating to a Special Maritime Frontier Zone, 4 December 1954 The Governments of the Republics of Chile, Ecuador and Peru, in conformity with the provision of Resolution X of 8 October 1954, signed at Santiago de Chile by the Standing Committee of the Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific.

Having noted the proposals and recommendations approved in October of this year by the said Standing Committee, Have appointed as their Plenipotentiaries: His Excellency the President of the Republic of Chile: His Excellency Mr. Alfonso Bulnes Calvo, Ambassador Extraordinary and Plenipotentiary of Chile in Peru; His Excellency the President of the Republic of Ecuador: His Excellency Mr. Jorge Salvador Lara, ChargÊ d’ affaires a.i. of Ecuador in Peru; and His Excellency the President of the Republic of Peru; His Excellency Mr. David Aguilar Cornejo, Minister for Foreign Affairs of Peru, Who, CONSIDERING THAT: Experience has shown that innocent and inadvertent violations of the maritime frontier between adjacent States occur frequently because small vessels manned by crews with insufficient knowledge of navigation or not equipped with the necessary instruments have difficulty in determining accurately their position on the high seas; The application of penalties in such cases always produces ill-feeling in the fishermen and friction between the countries concerned, which may affect adversely the spirit of cooperation and unity which should at all time prevail among the countries signatories to the instruments signed at Santiago; and It is desirable to avoid the occurrence of such unintentional infringements, the consequences of which affect principally the fishermen;

* United Nations Treaty Series, Vol. 2274, I-40521 261

Maritime Delimitation with equity: the Case of Peru vs. Chile

HAVE AGREED AS FOLLOWS: FIRST: A special zone is hereby established, at a distance of 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the parallel which constitutes a maritime boundary between the two countries.

SECOND: The accidental presence in the said zone of a vessel of either of the adjacent countries, which is a vessel of the nature described in the paragraph beginning with the words “Experience has shown� in the preamble hereto, shall not be considered to be a violation of the water of the maritime zone, though this provision shall not be construed as recognizing any right to engage, with deliberate intent, in hunting or fishing in the said special zone.

THIRD: Fishing or hunting the zone of 12 nautical miles from the coast shall be reserved exclusively to the nationals of each country.

FOURTH: All the provisions of this Agreement shall be deemed to be an integral and supplementary part of, and not in any way to abrogate, the resolutions and decisions adopted at the Conference on the Exploitation and Conservation of Maritime Resources of the South Pacific, held in Santiago de Chile in August 1952.

In witness whereof, the respective Plenipotentiaries of the Governments of Chile, Ecuador, and Peru have signed this Agreement in three copies at Lima on 04 December 1954.

For the Government of Chile, Alfonso Bulnes C. For the Government of Ecuador, Jorge Salvador Lara For the Government of Peru, David Aguilar Cornejo

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7. Protocol of Accession to the Declaration Zone” signed in Santiago, 6 October 1955

on the

“Maritime

The three Governments declare that the adhesion to the principle stating that the coastal States have the right and duty to protect, conserve and use the resources of the sea along their coasts shall not be constrained by the assertion of the right of every State to determine the extension and boundaries of its Maritime Zone.

Therefore, at the moment of accession, every State shall be able to determine the extension and shape of delimitation of its respective zone —off its coastline, partially or in its entirety— according to the particular geographic conditions, with the extension of every sea and the geological and biological factors that determine the life, conservation and development of the maritime fauna and flora in its waters.

In witness whereof, the Plenipotentiaries of Ecuador, Chile and Peru, after having examined their full powers and found them in due and good form, signed this Protocol in Quito, at the sixth day of October in the year one thousand nine hundred and fifty five.

For the Government of Ecuador, luis antonio peña herrera For the Government of Chile, Luis Cubillas Achurra For the Government of Peru, Carlos Alzamora Traverso

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8. “Principles of Mexico", Resolution XIII of the Meeting Inter-American Council of Jurists, Mexico, 1956

of the

The Inter-American Council of Jurists RECOGNIZES, as an expression of the juridical awareness of the Continent, the following principles, among others, which may be applied by the American States.

The Inter-American Council of Jurists DECLARES that accepting these principles does not imply or result in the renunciation of or detriment to the stance taken by individual American Countries in relation to the extension of the territorial sea.

A Territorial Sea 1. The three mile extension used to demarcate the territorial sea is insufficient and is not a general rule of international law. Therefore, an extension of the traditional maritime zone called the 'territorial sea’ is justifiable.

2. Each State are entitled to establish its territorial sea up to reasonable limits depending on issues relating to geography, geology, and biology, as well as the economic need of the population, and security and defense.

B Continental Shelf The rights of coastal states over the seabed and the sub-soil of the submarine platform or continental shelf, as well as the natural resources therein such as oil, hydrocarbons, minerals, and all marine species (flora and fauna) which are in constant physical and biological contact with the platform, including benthonic species.

C Conservation of Living Resources of the High Seas 1. Coastal States are entitled to adopt –in accordance with scientific and technical principles- appropriate conservation and surveillance measures to protect the living resources of the sea close to their coasts and beyond territorial seas. The measures adopted by the coastal State in accordance with the abovementioned conditions shall not prejudice the rights stemming from international treaties to which it is a Party, nor shall they discriminate against foreign fishermen.

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2. Coastal States are also entitled to the exclusive exploitation of the species bound to the coast, the country’s life or to the needs of the coastal population; such is the case of species which develop within jurisdictional waters and migrate to the high seas or that of certain species which are essential to an industry or an activity of the coastal country, or when the latter undertakes projects which will ensure the conservation or increase of the population of maritime species.

D Baselines 1. The breadth of territorial sea shall be measured, in principle, from the lowwater line along the coast as shown on the large-scale nautical charts which are officially recognized by the Coastal State.

2. The Coastal States are entitled to trace straight baselines that deviate from the low-water line, if this regime is imposed by the following circumstances: a) deep coastal coves and rifts; b) the close proximity of islands; c) specific economic interests of a region of the coastal State.

The straight baselines method can be used in any of the abovementioned cases, joining the furthermost points of the coast, islands, islets, or reefs. The tracing of these baselines cannot sensibly drift away from the general sense of the coast; and the extension of seas contained therein shall be sufficiently linked to the land areas.

1. The stretch of water contained between the baseline and the land shall be under the internal waters regime.

2. The Coastal State shall ensure these straight baselines are made public.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

9. Resolution III of the II Congress of the Hispano-Luso-AmericanPhilippine Institute of International Law, 12 October 1953 Sao Paulo, 12 October 1953 Resolution III Maritime and Fluvial International Law Affairs I. Territorial Sea 1. The territorial sea of States is the maritime zone which extends from the low-water line to the imaginary line where the high seas begin.

2. Under international law, the State exercises sovereignty over the waters of its territorial sea.

3. The State also exercises sovereignty over the seabed and sub-soil of its territorial sea and in the corresponding air space.

4. The breadth of territorial sea shall measure 12 nautical miles. As a general rule, the low-water line is used as to measure the breadth of the territorial sea, and at regular coasts the measurements shall be taken using the outermost points of the coast as the center of tangent arc of circles. At irregular coasts, the territorial sea shall be measured using straight lines parallel to those lines joining the previously mentioned prominent points.

5. In the polar territories, the territorial sea shall be measured depending upon whether the ice coast is perpetual or temporary.

6. The rules applicable to bays on sovereignty and navigation shall also apply to rivers showing great width when flowing into the sea —whether or not estuaries— provided, however, that the seabed, throughout the area covered by the waters, has a depth of fifteen feet and, therefore, overseas ships may navigate in such area.

7. The delimitation of the territorial sea of two adjacent States shall consist of a line perpendicular to the coast at the intersection point between both States, and along which all of the points are equidistant from those located at greater depth from said intersection in both littorals.

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II. Continental Shelf 1. The expression “Continental Shelf � means the seabed and sub-soil of the zones contiguous to the coast located beyond the territorial sea zones up to the limit where the continental or insular slope begins.

2. The continental shelf belongs to the coastal State, which exercises its authority and jurisdiction thereon in order to explore and exploit all of the natural resources therein.

3. The coastal State’s authority and jurisdiction comprises the power to regulate and audit fishing and whaling activities carried out throughout the waters covering the continental shelf, in view of protecting the natural resources therein from their depletion even if their populations do not practice such activities in such zone.

III. Supplementary Sea 1. The States devoid of any continental shelf have the right to regulate and audit fishery and whaling activities carried out throughout the adjacent sea to the territorial sea, up to a distance of 200 nautical miles, counted as from the outer limit thereof.

IV. Relations with the High Seas Regime 1. The coastal State exercising its authority and jurisdiction on the continental shelf does not affect the High Seas general regime applicable to the waters covering it.

2. The coastal State exercising its authority and jurisdiction on the continental shelf does not affect the air space system applicable to the air space over the waters covering it.

3. The coastal State exercising its authority to regulate and audit fishing and whaling activities carried out throughout the adjacent sea to its territorial sea, within the limits set forth in Article 11 does not affect the high seas general regime, nor does it exclude the ships of other countries which, under the same conditions, lawfully engage in such activities.

4. Buildings and facilities constructed or to be constructed for continuous or systematic exploration and exploitation of natural resources of the continental shelf shall not cause, as a result thereof, any significant obstacle to navigation or fishing activities. Such facilities shall have no territorial sea; however, a security buffer area may be determined around it, to the extent 267

Maritime Delimitation with equity: the Case of Peru vs. Chile

that this protection is technically necessary. Such facilities shall be clearly visible. To this same end, their location and characteristics shall be notified regularly by the coastal State to all concerned Parties.

V. Delimitation of the Continental Shelf 16. The delimitation of the contiguous shelf shall be set in an agreement signed by the coastal States. If the shelf is shared by various States which are separated by a stretch of sea, the boundary line shall depend on the distance between the two coasts.

17. In the case of a gulf or a bay where there are two or more coastal States, all coastal States shall have international joint ownership of the Continental Shelf, except where another regime has been adopted or is adopted by means of a treaty or by international customary law.

18. If there is no mutual agreement, on one hand, or if there are technical difficulties, on the other, Coastal States shall delimit their Continental Shelf boundary though Arbitration, recognized by International Law. VI. Contiguous Zone 19. The coastal State can take preventative or repressive measures of enforcement of policing laws concerning its customs, fiscal and sanitary interests. The exercise of these rights by the coastal State can be extended up to a maximum limit of 12 miles from the coast, so long as the universally accepted breadth of territorial sea is inferior to such a distance.

20. The recognition of the abovementioned specific rights on the “contiguous zone� to the coastal State does not prejudice the legal regime of the corresponding air space enshrined by international law.

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10. Treaty and Supplementary Protocol between Chile and Peru for the Settlement of the Dispute regarding Tacna and Arica, 3 June 1929 The Governments of the Republics of Chile and Peru, being desirous of removing all difficulties between the two countries and thus ensuring their friendship and good relations have resolved to conclude a Treaty in conformity with the principle which the President of the United States of America, in performance of the good offices requested by the Parties and in accordance with the direct arrangements agreed upon between them, has proposed as final bases for the settlement of the problem of Tacna and Arica, and have for that purpose appointed as their Plenipotentiaries: His Excellency the President of the Republic of Chile: His Excellency Don Emiliano FIGUEROA LARRAIN, Ambassador Extraordinary and Plenipotentiary in Peru; His Excellency the President of Peru: His Excellency Doctor Don Pedro José RADA Y GAMINO, Minister of Foreign Affairs; Who, having communicated their full power bound in good and due from, have agreed on the following Articles: Article 1 The dispute arising out of Article 3 of the Treaty of Peace and Friendship of the twentieth day of October of the year one thousand eight hundred and eighty-three, which was the only difficulty outstanding between the signatory Governments, is hereby finally settled.

Article 2 The territory of Tacna and Arica shall be divided into two portions of which Tacna shall be allotted to Peru and Arica to Chile. The dividing line between the two portions, and consequently the frontier between the territories of Chile and Peru, shall start from a point on the coast to be named “Concordia” ten kilometers to the north of the bridge over the river Lluta. It shall continue eastwards parallel to the line of the Chilean section of the Arica. La Paz railway * League of Nations Treaty Series, No. 2157) 269

Maritime Delimitation with equity: the Case of Peru vs. Chile

and at a distance of ten kilometers therefrom, with such sinuosities as may be necessary to allow the local topography to be used, in the demarcation, in such a way that the sulphur mines of the Tacora and their dependencies shall remain within Chilean territory. The line shall then pass through the centre of the Laguna Blanca, so that one portion thereof shall be in Chile and the other in Peru. Chile cedes to Peru in perpetuity all her rights over the irrigation-channels Uchusuma and the Mauri (also known as Azucarero), without prejudice to the sovereignty she will be entitled to exercise over such part of the above-mentions aqueduct as may come within Chilean territory after the tracing of the dividing line mentioned in the present Article. In respect of both channels, Chile grants to Peru a perpetual and absolute easement over the sections which pass through Chilean territory. Such easement shall include the right to widen the present channels to change their course and to utilize all the water that may be collected in their passage through Chilean territory, except the waters that at present flow into the river Lluta and those which are used in the Tacora sulphur mines.

Article 3 The frontier-line referred to in the first paragraph of Article 2 shall be determined and marked by means of posts in the territory itself by a Mixed Commission consisting of one member appointed by each of the signatory Governments.

The joint expenditure incurred in this operation shall be borne by the two Parties in equal shares. If any dispute arises in the Commission, it shall be settled by the casting vote of a third member appointed by the President of the United States of America, from whose decision no appeal shall lie.

Article 4 Thirty days after the exchange of the ratification of the present Treaty, the Government of Chile shall transfer to the Government of Peru all territories which under the Treaty are to come into the possession of Peru. The Plenipotentiaries of the Contracting Parties shall sign a deed of transfer containing a detailed statement of the position and distinguishing characteristics of the frontier-posts.

Article 5 For the use of Peru, the Government of Chile shall, at its own costs, construct within one thousand five hundred and seventy-five meters of the Bay of Arica a landing stage for fair-sized steamships, a building for the Peruvian Customs office, and a terminal station for the Tacna railway. Within these zones and establishments the transit traffic of Peru shall enjoy the freedom that is accorded in free ports under the most liberal rĂŠgime.

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Article 6 At the moment of the exchange of ratification the Government of Chile shall deliver to the Government of Peru six million dollars and also, without any cost to the latter Government , all public works already completed or under construction and all immovable State property situated in the territories which, under the present Treaty, will come under Peruvians sovereignty.

Article 7 The Governments of Chile and Peru shall respect legally-acquired private rights in the territories coming under their respective sovereignty including therein the concession granted in the year one thousand eight hundred and fifty two by the Government of Peru to the Arica- Tacna Railway Company, under which the said railway, at the expiration of the contract, shall become the property of Peru.

Without prejudice to the sovereignty she is entitled to exercise, Chile shall grant Peru a perpetual and absolute easement over that part of the line which passes through her territory.

Article 8 The Governments of Chile and Peru shall mutually cancel all financial obligations outstanding between them, whether arising under the Treaty of Ancon or otherwise.

Article 9 The High Contracting Parties shall conclude a Convention relating to the policing of the frontier for the purpose of ensuring public safety in the respective territories adjacent to the boundary, This Convention shall come into force as soon as the Province of Tacna passes under Peruvian sovereignty.

Article 10 Children of Peruvians born in Arica shall be deemed to be Peruvians until they reach the age of twenty-one, when they shall be entitled to opt or their definitive nationality, Children of Chileans born in Tacna shall enjoy the same right.

Article 11 To commemorate the consolidation of friendly relations between them, the Governments of Chile and Peru resolve to erect a symbolical monument on the Mound of Arica (Morro de Arica), and they will come to an agreement regarding the form this monument is to take.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

Article 12 If the Government of Chile and Peru disagree as to the interpretation of any of the provision of this Treaty, and if, in spite of their goodwill. They can reach no agreement, the dispute shall be settled by the President of the United States of America.

Article 13 The Present Treaty shall be ratified, and ratification thereof shall be exchanged at Santiago as soon as possible.

In faith whereof the undersigned Plenipotentiaries have signed the present Treaty and have thereto affixed their seals.

Don in duplicate at Lima, the third day of June, one thousand nine hundred and twenty nine.

Pedro JosĂŠ Rada y Gamio Emiliano Figueroa Larrain

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11. Instructions given to Mr. Enrique Brieba, representative of Chile to the Peru - Chile Joint Commission of Limits to finalize the land boundary demarcation, 28 April 1930 Instructions of the Government Agreed by the Ministry of Foreign Affairs Santiago, 28 April 1930 Nยบ 5697/79 To Mr. Enrique Brieba, Delegate of Chile to the Joint Commission of Limits.

An agreement has been reached with the Peruvian Government regarding the unresolved issues from the discussions held by the Commission last February concerning the dividing line and placement of boundary markers. The Commission shall adhere to this agreement to establish the boundary line and set the boundary markers.

As the representative of Chile to the Joint Commission of Limits, you are entrusted to enforce the agreement with your Peruvian counterpart, with the utmost brevity and thus place the land boundary markers on the boundary line at the following locations: Concordia Boundary Marker: Starting point of the boundary line on the coast.

In order to fix this point: 10 kilometers shall be measured from the first bridge of the Arica-La Paz railway over the Lluta river, with a northwards direction, at Pampa de Escritos, and a 10-kilometer-radius arc shall be traced westwards, with its center at the aforementioned bridge, running to intercept the seashore in such a way that any point of the arc is at a distance of 10 kilometers from the previously mentioned bridge of the Arica-La Paz railway line over the Lluta river.

This intersection point of the traced ac with the seashore shall be the starting point of the dividing line between Peru and Chile.

A boundary marker shall be placed at any point of the arc, as close to the sea as possible so as to prevent it from being destroyed by the ocean waters.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

The boundary line in the sulphur mines region [see map on page 148] In the sulphur mines region the dividing line begins to separate from the parallel where this intersects the Azufre River, at 10 kilometers from the Arica to La Paz railway, as proposed by the Delegate of Peru to the Joint Commission of Limits.

Then it continues northwards, according to the line proposed by the Delegate of Peru, up to the point of inflection located one hundred meters from the railway, and from there towards the sulphur mines at the top of the ravine that runs down from the foot of the Chupiquiña towards Caplina. In that zone, therefore, the dividing line will continue being the broken line labeled A-B-C-D-E proposed by the Delegate of Peru in the corresponding plane. From the abovementioned point E the line continues to ‘El Fraile’ mountain peak, ensuring the whole of the sulphur mines of Chuquipiña and its dependencies within Chilean territory.

From that mountain peak, the dividing line continues along a straight line up to the boundary marker at the south western end of ‘Laguna Blanca’. Its trajectory takes it through the central peak of a mountain range which has ‘Quiñuta’ at the North West, which remains within Peruvian territory and Calzon Chiatta at the south east, which remains within Chilean territory. It is understood that the pass of Huaylas and Huaylillas should also remain within the Peruvian territory.

Dividing Line at Laguna Blanca [White Lake] The dividing line shall separate Laguna Blanca into two equal areas. For such purpose, the maximum water lines proposed by the Peruvian Delegate in the map prepared by the Engineers to the Joint Commission of Limits, shall be accepted. The dividing line shall run from southwest to northeast.

Dividing line between Laguna Blanca and the Frontier with Bolivia The dividing line should be drawn directly between the northeastern point of Laguna Blanca to boundary marker V of the frontier between Chile and Bolivia. If need be, this line shall have the appropriate inflections so as to keep Ancomarca village within Peruvian territory.

God Bless You, Manuel Barros C.

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12. Final Minutes

of the

Commission of Limits including 21 July 1930

tion of the land boundary markers,

a descrip-

21 July 1930 Peru – Chile Joint Commission of Limits In Arica, on 21 July 1930, the Peru – Chile Joint Commission of Limits representatives signed these Minutes upon completing the tasks of the Commission. This is done upon placement -by common agreement and in light of the instructions given to each of the delegates- of all boundary markers required to delimit the boundary line between Chile and Peru, in accordance with the Treaty of Lima dated 3 June 1929.

The demarcating boundary line starts at the Pacific Ocean, on a point in the seashore located 10 kilometers northwest of the first bridge over the Lluta River of the Arica to La Paz railway. The boundary line ends in the Andes mountain range at the fifth boundary marker of the former dividing line between Chile and Bolivia.

In order to permanently establish the aforementioned boundary line between Peru and Chile on the ground, the following boundary markers have been placed.

The geographical position of the boundary markers was established by geodesic triangulation or by subsidiary polygonals to a concrete pillar situated at the foot of the northeastern face of the Morro de Arica, with the following position: 18º - 28' – 54.9” south latitude and 70 º - 19’ – 39.7” Greenwich west longitude.

The metal boundary markers were made of flat angular and flat parts riveted together to form quadrangular pyramids which are 5 meters high. A metal plate containing the names of both countries was placed on top. The concrete boundary markers are quadrangular blocks, up to 1.20m in height. The stone boundary posts have been built using stones placed on top of each other, and are approximately 1m in diameter and 1.50m in height. The Concordia boundary marker is a reinforced concrete monument, 7 m in height. Due the inaccessible mountainous terrain at two locations, high mountain peaks were set as the boundary markers.

The following is a description of the boundary markers starting at the Pacific Ocean...”

Arica, 21 July 1930 Federico Basadre, Delegate of Peru Enrique Brieba, Delegate of Chile 275

Maritime Delimitation with equity: the Case of Peru vs. Chile

13. Agreement

to build signals or towers to guide artisanal small

fishing vessels in the maritime frontier zone, established by exchange of notes of

6 February and 8 March 1968

a. Peruvian Note Lima, 6 February 1968 Note No. 1 (J) 6-4/9 Honorable Sir, I have the honor to inform you that, on the basis of the meeting held in Lima by Ambassador Mr. Fabio Vío Valdivieso, Director of State Frontiers, and Colonel Alejandro Forch, Head of the Department of Chile’s Borders, and Ambassador Bolívar Ulloa, Technical Advisor, and Minister Jorge Velando Ugarteche, Head of the Department of Frontiers of this Ministry of Foreign Affairs, this office considers, having regard to the matter discussed at the meeting, convenient, for both countries, to proceed to build posts or signs of considerable dimensions and visible at great distance, at the point at which the common border reaches the sea, near to boundary marker number one.

If the Honorable Government of Chile agrees with this proposal, I would be most grateful if it would notify me accordingly and provide the name of the technician who it intends to appoint for arranging an on-site meeting with the technician appointed by the Government of Peru in order to proceed with the construction of said marker.

I avail myself of this opportunity to reiterate to Your Honor, the assurances of my most distinguished consideration.

To the Honorable José Oyarzun González

Chargé d’Affaires a.i. of Chile

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b. Chilean Note Embassy of Chile No. 81 Lima, 8 March 1968 Your Excellency, I have the honor to reply to the note of Your Excellency No. (J): 6-4/9 of 6 February 1968, whereby you informed me that, on the basis of the discussions held in Lima by the Peruvian and Chilean frontier and border authorities, it was found convenient for both countries to proceed to build posts or signs of considerable dimensions and visible at great distance, at the point at which the common border reaches the sea, near boundary marker number one.

On this point, I can inform Your Excellency that my Government considers your proposal acceptable for the said meeting of Peruvian and Chilean technicians to be held at boundary marker number one on the date and at the time to be arranged by Your Excellency.

The Chilean Delegation will consist of the Head of the Department of International Boundaries, the engineer and geographer Alejandro Forch and the maritime consultant of that department, retired naval captain specialist in hydrography, Mr. Alberto Andrade.

To His Excellency President of the Council of Ministers and Minister of Treasury and Trade, in Charge of Foreign Affairs Portfolio

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Maritime Delimitation with equity: the Case of Peru vs. Chile

c. Peruvian Note acknowledging receipt of Chile’s approval Lima, 28 March 1968 No. (J) 6-4/19 Honorable Sir, I have the honor to confirm receipt of Your Honor Note No. 81 of 8 March 1968 stating that the Government of Chile accepts the Peruvian proposal to study the installation of leading marks visible at great distance, at the point at which the common border reaches the sea, near boundary marker number one.

The Peruvian Delegation will consist of the Minister in the Diplomatic Service of the Republic, Mr. Jorge Velando Ugarteche, Head of the Department of Frontiers of the Ministry of Foreign Affairs and naval captain Mr. Jorge Parra del Riego Endara, Deputy Director of Hydrography and Beacons of the Ministry of the Navy, who, in keeping with th discussions held in recent days with you, will meet in the hotel “El Paso” in the city of Arica on 25 April at 11 a.m.

I avail myself this opportunity to reiterate to Your Honor the assurances of my most distinguished consideration.

Javier Perez de Cuellar

Secretary General of Foreign Affairs

To Mr. Francisco José Oyarzun González Chargé d’affaires a.i. of Chile

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14. Official Position of Peru on the maritime delimitation between States with adjacent coasts. Statement of the Delegate of Peru Ambassador Alfonso Arias-Schreiber, during the ninth period of sessions of the III United Nations Conference on the Law of the Sea, Geneva, 27 August 1980 “(‌) With respect to the criteria on delimitation of the territorial sea, the exclusive economic zone and the continental shelf between States whose coasts are adjacent, Peru considers that, in the absence of a specific delimitation convention expressly agreed upon on that specific matter to definitely establish the limits of such zones, and where there are no special circumstances nor historical rights recognized by the parties, the median line or the equidistance line should apply as a general rule, because this is the most appropriate manner of arriving at an equitable solution, being this criterion well reflected in the present articles of the integrated textâ€?.

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Maritime Delimitation with equity: the Case of Peru vs. Chile

15. Memorandum from the Embassy of Peru in Santiago to the Ministry of Foreign Affairs of Chile, sent with Note 5-4-M/147, 23 May 1986 On the morning of Friday 23 May, His Excellency the Foreign Minister, Dr. Jaime del Valle, received Ambassador Juan Miguel Bákula who handed him a personal message from the Minister of Foreign Affairs of Peru, Dr. Allan Wagner.

That message states that the purpose of the visit is related to proposals of the utmost importance for the relations between the two countries, having regard to the intention of both Governments that “the Peruvian-Chilean relationship should be untrammeled by anything that might hinder the high degree of permanent and far reaching understanding” sought by them.

From a general point of view, the strengthening of friendship between the two countries, which is demanded by their vicinity and which was the goal of the 1929 Treaty, must be complemented by the timely and direct solution of problems which are the result of new circumstances, with a view to enhancing the climate of reciprocal confidence which underlies every constructive policy.

One of the cases that merit immediate attention is the formal and definitive delimitation of the marine spaces, which complement the geographical vicinity of Peru and Chile and have served as scenario of a long and fruitful joint action.

At the current time, the existence of a special zone —established by the “Agreement relating to a Maritime Frontier Zone”— referred to the line of the parallel of the point reached by the land border, must be considered as a formula which, although it fulfilled and fulfils the express objective of avoiding incidents with “seafarers with scant knowledge of navigation”, is not adequate to satisfy the requirements of safety nor for the better attention to the administration of marine resources, with the aggravating circumstance that an extensive interpretation could generate a notorious situation of inequity and risk, to the detriment of the legitimate interests of Peru, that would come forth as seriously damaged.

The definition of new maritime spaces, as a consequence of the approval of the Convention on the Law of the Sea, which counted with the vote of Peru and Chile, and the incorporation of its principles into the domestic legislation of countries, adds a degree of urgency, as both States shall have to define the characteristics of their territorial seas, contiguous zone and the exclusive economic zone, as well as the continental platform, i.e., the soil and subsoil of 280

Annexes

the sea, also up to 200 miles, including the reference to the delimitation of the said spaces at international level.

The current “200-mile maritime zone” —as defined at the Meeting of the Permanent Commission for the South Pacific in 1954— is, without doubt, a space which is different from any of the abovementioned ones in respect of which domestic legislation is practically non-existent as regards international delimitation. The one exception might be, in the case of Peru, the Petroleum Law (No. 11780 of 12 March 1952), which established as an external limit for the exercise of the competences of the State over the continental shelf “an imaginary line traced seaward at a constant distance of 200 miles”. This law is in force and it should be noted that it was issued five months prior to the Declaration of Santiago.

There is no need to underline the convenience of preventing the difficulties which would arise in the absence of an express and appropriate maritime demarcation, or as the result of some deficiency therein which could affect the amicable conduct of relations between Chile and Peru.

Consideration of this problem is nothing new as there are express references to it in books such as that of Rear-Admiral Guillermo Faura; Professor Eduardo Ferrero and Ambassador Juan Miguel Bákula. The Peruvian position was also summarized by Ambassador Alfonso Arias Schreiber at the Conference on the Law of the Sea, when favoring the criteria incorporated in the draft Convention on the Law of the Sea, in relation to the delimitation of the territorial sea, the exclusive economic zone and the continental shelf (26 August 1980).

However, this step constitutes the first presentation via diplomatic channels, which the Government of Peru formulates before the Government of Chile based on reasons and circumstances set out in the opening paragraphs of this memorandum.

Finally, still with a view to creating the broadest degree of understanding and promoting confidence, Ambassador Bákula allowed himself to remind His Excellency the Minister of Foreign Affairs, of the peace formula contained in the Joint Communiqué signed in Lima during the visit of the Minister of Foreign Affairs of Colombia, Doctor Augusto Ramírez Ocampo, which had the intention of proposing to the countries which make up the South Pacific System, the adoption of a text which sanctions the peaceful use of the maritime environment referred to in the Declaration of Santiago of 18 August 1952.

At the end of the meeting, Ambassador Bákula reiterated to His Excellency the Minister of Foreign Affairs, Mr. Jaime del Valle, the sentiments of most sincere 281

Maritime Delimitation with equity: the Case of Peru vs. Chile

friendship which inspired the message from the Minister of Foreign Affairs of Peru, as well as his personal thanks for the deferential manner in which he had been heard.

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16. Note

Government of Peru Government of Chile with

of protest sent by the

registration made by the

Nations Secretariat

against the the

United

of a nautical chart claiming the existence of

a maritime boundary by the parallel that passes through

Marker 1 of the land boundary, 20 October 2000

Boundary

The Ministry of Foreign Affairs presents its compliments to the Honorable Embassy of the Republic of Chile and informs it that the Government of Peru has recently been made aware of the publication by the Hydrographic and Oceanographic Service of the Chilean Navy of a Navigation Chart named “Rada y Puerto de Arica”, in which there appears a line which passes over the sea through the geographic parallel of Boundary Marker No. 1 of the PeruvianChilean land border, referred to as the “maritime boundary”.

On this point, the Ministry of Foreign Affairs expresses its disagreement with the cartographic drawing of the said line and with the reference contained in the said Navigation Chart, as no specific treaty exists for the delimitation of the maritime frontier between the two countries; consequently, the points contained in Note No. 5-4-M/147 of 23 May 1986, delivered by the Embassy of Peru in Santiago to the Honorable Ministry of Foreign Affairs of Chile, must be repeated.

The Ministry of Foreign Affairs avails itself of this opportunity to reiterate to the Honorable Embassy of the Republic of Chile, the assurances of its highest and most distinguished consideration.

Lima, 20 October 2000 To the Honorable Embassy of the Republic of Chile

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Maritime Delimitation with equity: the Case of Peru vs. Chile

17. Diplomatic Note from the Embassy of Chile, 22 November 2000 The Embassy of Chile presents its compliments to the Honorable Ministry of Foreign Affairs and has the honor to acknowledge receipt of Your Excellency's Note RE (GAB) N-6-4/113, dated 20 October 2000 and received on 02 November 2000, conveying the Ministry of Foreign Affairs’ disagreement with the cartographic drawing of the line indicating the maritime boundary between Chile and Peru as indicated on the Navigation Chart called ‘Rada y Puerto de Arica’ published by the Hydrographic and Oceanographic Services of the Chilean Navy.

On this regard, the Embassy of Chile considers it necessary to point out that Peru and Chile already have established their international maritime boundary and have performed ulterior confirmatory acts as that one recorded in the Minutes dated 26 April 1968, at the Chilean-Peruvian boundary, signed by representatives of Chile and Peru. The delegates were entrusted to study on the ground itself the installment of leading marks visible from the sea, in order to materialize the parallel of the maritime boundary starting on Boundary Marker No. 1. It is also pertinent for the Embassy of Chile to invoke the Minutes of 19 August 1969 drafted in the city of Arica by the same representatives, entitled Minutes of the Peruvian-Chilean Joint Commission in charge of verifying the position of Boundary Marker No. 1 and signaling the maritime boundary. These Minutes describe the work carried out, which resulted in the construction of two leading towers each containing a beacon; one on the west side of boundary marker No. 1 and another on the east side. These leading towers were built in 1971 and came into operation in 1972.

The Embassy of Chile seeks to remind the aforementioned Ministry that the maritime boundary line has always been respected by both countries and as such there is no reason to open a debate on the subject.

The Embassy of Chile hereby informs the Ministry of Foreign Affairs that the aforementioned Navigation Chart entitled 'Rada y Puerto de Arica' has been edited in accordance with international law and treaties in force with the Republic of Peru.

The Embassy of Chile avails itself of this opportunity to renew to the Ministry of Foreign Affairs the assurances of its highest consideration.

Lima, 22 November 2000.

To the Honorable Ministry of Foreign Affairs of Peru 284

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18. Note of reply from the Government of Peru, 27 December 2000 The Ministry of Foreign Affairs has the honor to acknowledge receipt of Your Excellency’s Note No. 411 dated 22 November 2000 regarding the interpretation of the delimitation of the maritime boundary between Peru and Chile.

On this regard, the Ministry of Foreign Affairs of Peru would like to state that it does not share the view expressed by the Honorable Embassy, as Peru and Chile have not signed any agreement, treaty, or convention regarding the delimitation of their maritime frontier. Therefore, the Ministry of Affairs reiterates its continuous dissent with respect to the statement that Peru and Chile would have already defined their international maritime boundary, as timely stated by Peru in Note 5-4-M/147dated 23 May 1986.

The Ministry of foreign Affairs avails itself of this opportunity to renew to the Honorable Embassy of the Republic of Chile the assurances of its highest and most distinguished consideration.

Lima, 27 December 2000 To the Honorable Embassy of Chile

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Maritime Delimitation with equity: the Case of Peru vs. Chile

19. Communication sent by the Minister of foreign Affairs of Peru, Manuel Rodríguez Cuadros to the Minister of Foreign Affairs of Chile, Soledad Alvear proposing on behalf of the Peruvian State to begin diplomatic negotiations in order to solve the pending legal dispute on the maritime delimitation,

19 July 2004

Lima, 19 July 2004 Her Excellency, I have the honor of addressing Your Excellency with the purpose of making reference to the juridical dispute on maritime delimitation existing between Peru and Chile.

Before dealing with this mater, I would like to recall, Your Excellency, the unification of criteria and collaboration between Peru and Chile in the development of the new Law of the Sea. In the formative stage of the accurately called new Law of the Sea, Peru ad Chile played very important roles in the progressive development and codification of this legal order. Both countries carried out actions that had enormous significance in the international recognition of the sovereignty and jurisdiction of the coastal State in the sea adjacent to the 200 nautical miles, an extension largely surpassing the traditionally existing ones. In this initial stage, of the new Law of the Sea, our countries concentrated their efforts with the main purpose of extending and defending the sovereignty and the jurisdiction in the adjacent sea up to non-traditional but fair and equitable measures. Those efforts were oriented to the protection of these new zones and their resource.

In the evolution of law, many States were opposed to this innovative and bold extension of the sovereignty and jurisdiction of the coastal State. However, our countries, in a coordinated, decisive and effective way, not only were reluctant to accept this objection —which was based, in part, on international law build up in past centuries— but also convinced the international community of the justice and equity of its cause. From the 1950s until the difficult negotiations at the United Nations Third Conference on the Law of the Sea, this supportive, coordinated and efficient work —to which other countries of the region adhered, produced very positive results in the consolidation of the new principles and institutions of the Law of the Sea. However, and in spite of this broad and close collaboration in the development of the Law of the Sea, Peru and Chile still have pending the maritime delimitation 286

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of their respective adjacent zones, since no specific treaty on this very important issue has been concluded between both countries.

With respect to the maritime delimitation between our countries, Peru addressed a Note to the United Nations Secretariat General containing a Declaration disseminated by such international organization through Circular Letter No. 13 of the Law of the Sea in March 2001, published by its Bureau of Oceanic Affairs and Law of the Sea; in this document, it is indicated, among others, that “until now Peru and Chile have not signed, in accordance with the pertinent rules of the international law, a specific treaty on maritime delimitation”; that “the Government of Peru, in Note 5-4-M/147 dated 23 May 1986, informed the Government of Chile about its official position regarding the need to initiate the formal and final delimitation of the maritime spaces between the two countries, communication that has recently been reiterated by Note RE (GAB) 6-14/113, dated 20 October 2000, due to the fact that the issue is still pending” and that “consequently, the Government of Peru does not recognize the indication of the parallel line as a maritime limit between Peru and Chile”.

Likewise, other Notes have been exchanged between Peru and Chile that reveal totally dissenting and opposed juridical positions about the maritime delimitation which in accordance with the international law, evidence a juridical dispute.

Peru considers that the stability of friendly and cooperative bilateral relations with Chile, as well as the promotion of shared interests in all aspects of the bilateral relationship will find a larger dynamism to the extent that an agreement on the juridical dispute could be reached, whose solution is still pending.

These considerations, of utmost importance in the bilateral relation, lead me to formally submit a proposal, to Your Excellency, for the commencement, as soon as possible, of bilateral negotiations to solve this dispute. I also suggest that these negotiations start within the next 60 days. They could be carried out in the city of Lima, in the city of Santiago de Chile or in the city chosen by mutual agreement. The purpose of these negotiations should be the establishment of the maritime limit between Peru and Chile, according to the provisions of international law, through a specific treaty on this issue.

The Peruvian position on the maritime delimitation between States with adjacent coasts was officially presented by the President of the Peruvian Delegation to the United Nations Third Conference on the Law of the Sea, in his communication, dated 27 August 1980, which in its seventh paragraph reads as follows: “With respect to the criteria on delimitation of the territorial sea, the exclusive economic zone and the continental shelf between States whose coasts are 287

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adjacent, Peru considers that, in the absence of a specific delimitation convention expressly agreed upon on that specific matter to definitely establish the limits of such zones, and where there are no special circumstances nor historical rights recognized by the parties, the median line or the equidistance line should apply as a general rule, because this is the most appropriate manner of arriving at an equitable solution, being this criterion well reflected in the present articles of the integrated text.�

I avail myself of this opportunity to reiterate to Your Excellency the assurances of my highest and most distinguished consideration.

manuel rodriguez cuadros

Minister of Foreign Affairs of Peru

To Her Excellency Mrs. MarĂ­a Soledad Alvear Minister of Foreign Affairs of Chile

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20. Answer by the Government of Chile to the invitation sent by the Government of Peru to commence negotiations with the view of solving the maritime dispute

Santiago, 10 September 2004 Your Excellency, I have the honor of addressing Your Excellency with regard to Note GAB No. 6/43 dated 19 July 2004, delivered to the Ambassador of Chile in Peru.

In this respect, I am pleased to coincide with Your Excellency insofar as recalling the joint effort to achieve a close cooperation in maritime affairs and particularly in the establishment of the 200-mile maritime zone, as well as the fundamental agreements that gave rise to the South Pacific System.

In this same spirit and with an equal conviction of the importance of the cooperation developed between our countries, I find it necessary to express Your Excellency that it is not appropriate to refer to negotiations of treaties in force, that have established the maritime boundary between Chile and Peru at parallel 18°21’03’’.

Furthermore, Your Excellency, I must express that neither is the proposal of deadlines in relation to matters already convened by both our countries, acceptable.

I avail myself of this opportunity to reiterate my highest and distinguished consideration.

Maria Soledad Alvear Valenzuela

Minister of Foreign Affairs To His Excellency

Manuel Rodríguez Cuadros

Minister of Foreign Affairs of the Republic of Peru

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21. Official CommuniquĂŠ concerning the response by the Government of Chile to the proposal made by the Government of Peru to commence negotiations on maritime delimitation

Official CommuniquĂŠ RE/22-04 Yesterday, 10 September 2004, the Ambassador of Peru to Chile received Note Number 16723 from the Minister of Foreign Affairs of Chile, Ms. Soledad Alvear in reply to the Note sent to her by the Minister of Foreign Affairs of Peru, Ambassador Manuel Rodriguez Cuadros on 19 July 2004, proposing negotiations in order to establish the maritime boundary between the two countries.

The reply of the Government of Chile has insisted on its position in the sense that the maritime boundary would have already been fixed between the two countries. The Government of Peru, expresses, once again, that no agreement whatsoever between the two countries has established any maritime boundary.

On that occasion, the Government of Peru suggested to the Government of Chile to provide an answer within 60 days following the submission of the abovementioned Note, as sign of good faith towards a bilateral solution to the legal dispute existing between the two countries.

With the answer given by the Government of Chile, the legal dispute between the two countries is once again formally substantiated, and consequently, unless a change of circumstances, the possibility of seeking a solution through direct negotiations has been exhausted.

Therefore, the Government of Peru may resort to the peaceful dispute settlement mechanisms established in international law, including the jurisdictional methods established by the rules and regulations of the United Nations and the Inter-American System.

The subject of maritime delimitation shall continue being dealt with strictly from a legal approach; and, the Ministry of Foreign Affairs shall refrain from making any public statement beyond what has been stated herein.

At the same time, the Ministry of Foreign Affairs, once again reiterate that this matter does not interfere with the dynamics of cooperation and friendship existing between two Governments, which shall continue developing and expanding in all areas of the bilateral relation.

Lima, 11 September 2004 290

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22. Joint CommuniquĂŠ of the Ministers and Chile, 4 November 2004

of

Foreign Affairs

of

Peru

We, the Ministers of Foreign Affairs of Peru and Chile have met within the framework of the XVIII Summit of Heads of State and Government of the Rio Group and have revised all aspects of the bilateral relation. In such context, we have coincided in the good condition of such relation and, particularly, on the dynamism of the economic and commercial relations, as well as on all matters related to institutional cooperation.

We, the Ministers have reiterated that the subject of maritime delimitation between both countries, in respect of which we have different positions, is a question of juridical nature and it strictly constitutes a bilateral issue that must not interfere in the positive development of the relationship between Peru and Chile.

We, the Ministers of Foreign Affairs, have both emphasized the importance of the next visit to Peru of the President of the Senate and of the Commander-inChief of Chilean Army. These visits are the expression of the positive political willingness of the Governments of Peru and Chile to continue developing all the cooperation aspects of the bilateral relation. Within this framework, we have decided that the Minister of Foreign Affairs of Chile should make an official visit to Peru before 31 December of the present year. Accordingly, the Minister of Foreign Affairs of Peru will make an official visit to Santiago on the first quarter of 2005.

Also, the Ministers of Foreign Affairs of Peru and Chile, when highlighting the next meeting of Presidents of both countries during the APEC Summit, reaffirm the willingness of their Governments to begin the process aimed at negotiating a Free Trade Agreement.

Rio de Janeiro, 4 November 2004 Manuel Rodriguez Cuadros

Minister of Foreign Affairs of Peru

Ignacio Walker

Minister of Foreign Affairs of Chile

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