Disputa Marítima (Peru v. Chile). Fallo de la Corte Internacional de Justicia

Antecedentes

• Memoria de Perú ante el tribunal de La Haya
• Contramemoria de Chile ante el Tribunal de La Haya
• Réplica de Perú ante el tribunal de La Haya
• Dúplica de Chile ante el Tribunal de La Haya
• Declaración de zona marítima, 18 de agosto de 1952
• Convenio sobre zona especial fronteríza marítima de 1954

II. Historical background

Chile gained its independence from Spain in 1818 and Peru did so in 1821. At the time of independence, Peru and Chile were not neighbouring States. Situated between the two countries was the Spanish colonial territory of Charcas which, as from 1825, became the Republic of Bolivia. In 1879 Chile declared war on Peru and Bolivia, in what is known historically as the War of the Pacific. In 1883 hostilities between Chile and Peru formally came to an end under the Treaty of Ancon. Under its terms, Peru ceded to Chile the coastal province of Tarapaca; in addition, Chile gained possession of the Peruvian provinces of Tacna and Arica for a period of ten years on the basis of an agreement that after that period of time there would be a plebiscite to determine sovereignty over these provinces. After the signing of the truce between Bolivia and Chile in 1884 and of the 1904 Treaty of Peace and Friendship between them, the entire Bolivian coast became Chilean.

Chile and Peru failed to agree on the terms of the above-mentioned plebiscite. Finally, on 3 June 1929, following mediation attempts by the President of the United States of America, the two countries signed the Treaty for the Settlement of the Dispute regarding Tacna and Arica (hereinafter the “1929 Treaty of Lima”) and its Additional Protocol, whereby they agreed that Tacna would be returned to Peru while Chile would retain Arica. The 1929 Treaty of Lima also fixed the land boundary between the two countries. Under Article 3 of that Treaty, the Parties agreed that a Mixed Commission of Limits should be constituted in order to determine and mark the agreed boundary using a series of markers (“hitos” in Spanish). In its 1930 Final Act, the 1929-1930 Mixed Commission recorded the precise locations of the 80 markers that it had placed on the ground to demarcate the land boundary.

In 1947 both Parties unilaterally proclaimed certain maritime rights extending 200 nautical miles from their coasts (hereinafter collectively the “1947 Proclamations”). The President of Chile issued a Declaration concerning his country’s claim on 23 June 1947 (hereinafter the “1947 Declaration” or “Chile’s 1947 Declaration”, reproduced at paragraph 37 below). The President of Peru issued Supreme Decree No. 781, claiming the rights of his country, on 1 August 1947 (hereinafter the “1947 Decree” or “Peru’s 1947 Decree”, reproduced at paragraph 38 below).

In 1952, 1954 and 1967, Chile, Ecuador and Peru negotiated twelve instruments to which the Parties in this case make reference. Four were adopted in Santiago in August 1952 during the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific (the Regulations for Maritime Hunting Operations in the Waters of the South Pacific; the Joint Declaration concerning Fishing Problems in the South Pacific; the Santiago Declaration; and the Agreement Relating to the Organization of the Permanent Commission of the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific). Six others were adopted in Lima in December 1954 (the Complementary Convention to the Declaration of Sovereignty on the Two-Hundred-Mile Maritime Zone; the Convention on the System of Sanctions; the Agreement relating to Measures of Supervision and Control in the Maritime Zones of the Signatory Countries; the Convention on the Granting of Permits for the Exploitation of the Resources of the South Pacific; the Convention on the Ordinary Annual Meeting of the Permanent Commission for the South Pacific; and the Agreement Relating to a Special Maritime Frontier Zone). And, finally, two agreements relating to the functioning of the CPPS were signed in Quito in May 1967.

On 3 December 1973, the very day the Third United Nations Conference on the Law of the Sea began, the twelve instruments were submitted by the three signatory States to the United Nations Secretariat for registration under Article 102 of the Charter. The four 1952 instruments (including the Santiago Declaration) were registered on 12 May 1976 (United Nations, Treaty Series (UNTS), Vol. 1006, pp. 301, 315, 323 and 331, Registration Nos. I-14756 to I-14759). The United Nations Treaty Series specifies that the four 1952 treaties came into force on 18 August 1952 upon signature. The 1954 Special Maritime Frontier Zone Agreement was registered with the United Nations Secretariat on 24 August 2004 (UNTS, Vol. 2274, p. 527, Registration No. I-40521). The United Nations Treaty Series indicates that the 1954 Special Maritime Frontier Zone Agreement entered into force on 21 September 1967 by the exchange of instruments of ratification. With regard to the two 1967 agreements, the Secretariat was informed in 1976 that the signatory States had agreed not to insist upon the registration of these instruments, as they related to matters of purely internal organization.

Representatives of the three States also signed in 1955 and later ratified the Agreement for the Regulation of Permits for the Exploitation of the Resources of the South Pacific. That treaty was not, however, submitted to the United Nations for registration along with the other twelve instruments in 1973 or at any other time.

III. Positions of the Parties

Peru and Chile have adopted fundamentally different positions in this case. Peru argues that no agreed maritime boundary exists between the two countries and asks the Court to plot a boundary line using the equidistance method in order to achieve an equitable result. Chile contends that the 1952 Santiago Declaration established an international maritime boundary along the parallel of latitude passing through the starting-point of the Peru-Chile land boundary and extending to a minimum of 200 nautical miles. It further relies on several agreements and subsequent practice as evidence of that boundary. Chile asks the Court to confirm the boundary line accordingly. (See sketch-map No. 2: The maritime boundary lines claimed by Peru and Chile respectively.)

Peru also argues that, beyond the point where the common maritime boundary ends, it is entitled to exercise exclusive sovereign rights over a maritime area lying out to a distance of 200 nautical miles from its baselines. (This maritime area is depicted on sketch-map No. 2 in a darker shade of blue.) Chile responds that Peru has no entitlement to any maritime zone extending to the south of the parallel of latitude along which, as Chile maintains, the international maritime boundary runs.

Chile contends that the principle of pacta sunt servanda and the principle of stability of boundaries prevent any attempt to invite the Court to redraw a boundary that has already been agreed. Chile adds that there have been significant benefits to both Parties as a result of the stability of their long-standing maritime boundary. Peru argues that the delimitation line advocated by Chile is totally inequitable as it accords Chile a full 200-nautical-mile maritime extension, whereas Peru, in contrast, suffers a severe cut-off effect. Peru states that it is extraordinary for Chile to seek to characterize a boundary line, which accords Chile more than twice as much maritime area as it would Peru, as a stable frontier which is beneficial to Peru.

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In view of the above, the Court observes that it is no longer contested that the 1952 Santiago Declaration is an international treaty. The Court’s task now is to ascertain whether it established a maritime boundary between the Parties.

The 1952 Santiago Declaration provides as follows:

 Peru asserts that the 1952 Santiago Declaration lacks characteristics which might be expected of a boundary agreement, namely, an appropriate format, a definition or description of a boundary, cartographic material and a requirement for ratification. Chile disagrees with Peru’s arguments concerning the characteristics of boundary agreements, pointing out that a treaty effecting a boundary delimitation can take any form.

According to Chile, it follows from paragraph IV of the 1952 Santiago Declaration that the maritime boundary between neighbouring States parties is the parallel of latitude passing through the point at which the land boundary between them reaches the sea. Chile contends that paragraph IV delimits both the general and insular maritime zones of the States parties, arguing that the reference to islands in this provision is a specific application of a generally agreed rule, the specification of which is explained by the particular importance of islands to Ecuador’s geographical circumstances. In support of this claim, Chile relies upon the Minutes of the 1952 Conference dated 11 August 1952, asserting that the Ecuadorean delegate requested clarification that the boundary line of the jurisdictional zone of each country be the respective parallel from the point at which the border of the countries touches or reaches the sea and that all States expressed their mutual consent to such an understanding. Chile argues that such an understanding, as recorded in the Minutes, constitutes an agreement relating to the conclusion of the 1952 Santiago Declaration, within the meaning of Article 31, paragraph 2 (a) of the Vienna Convention on the Law of Treaties. Although Chile recognizes that the issue of islands was of particular concern to Ecuador, it also stresses that there are relevant islands in the vicinity of the Peru-Chile border.

Chile maintains that the relationship between general and insular maritime zones must be understood in light of the fact that the delimitation of insular zones along a line of parallel is only coherent and effective if there is also a general maritime delimitation along such parallel. Further, Chile points out that, in order to determine if an island is situated less than 200 nautical miles from the general maritime zone of another State party to the 1952 Santiago Declaration, the perimeter of such general maritime zone must have already been defined.

Peru argues that in so far as the continental coasts of the States parties are concerned, the 1952 Santiago Declaration simply claims a maritime zone extending to a minimum distance of 200 nautical miles, addressing only seaward and not lateral boundaries. In Peru’s view, paragraph IV of the 1952 Santiago Declaration refers only to the entitlement generated by certain islands and not to the entitlement generated by continental coasts, with the issue of islands being relevant only between Ecuador and Peru, not between Peru and Chile. Peru contends that even if some very small islands exist in the vicinity of the Peru-Chile border these are immediately adjacent to the coast and do not have any effect on maritime entitlements distinct from the coast itself, nor were they of concern during the 1952 Conference.

Peru rejects Chile’s argument that a general maritime delimitation must be assumed in paragraph IV so as to make the reference to insular delimitation effective. It also questions that a maritime boundary could result from an alleged practice implying or presupposing its existence. Peru argues that, if it were true that parallels had been established as international maritime boundaries prior to 1952, there would have been no need to include paragraph IV as such boundaries would have already settled the question of the extent of the maritime entitlements of islands. Peru further claims that the purpose of paragraph IV is to provide a protective zone for insular maritime entitlements so that even if an eventual maritime delimitation occurred in a manner otherwise detrimental to such insular entitlements, it could only do so as far as the line of parallel referred to therein. Finally, Peru contests Chile’s interpretation of the Minutes of the 1952 Conference, arguing also that these do not constitute any form of “recorded agreement” but could only amount to travaux preparatoires.

According to Chile, the object and purpose of the 1952 Santiago Declaration can be stated at varying levels of specificity. Its most generally stated object and purpose is “to conserve and safeguard for their respective peoples the natural resources of the maritime zones adjacent to [the parties’] coasts”. It also has a more specific object and purpose, namely to set forth zones of “exclusive sovereignty and jurisdiction”. This object and purpose is naturally concerned with identifying the physical perimeter of each State’s maritime zone within which such sovereignty and jurisdiction would be exercised. Chile further emphasizes that, although the 1952 Santiago Declaration constitutes a joint proclamation of sovereignty, it is made by each of the three States parties, each claiming sovereignty over a maritime zone which is distinct from that claimed by the other two.

Peru agrees with Chile to the extent that the 1952 Santiago Declaration involves joint action to declare the maritime rights of States parties to a minimum distance of 200 nautical miles from their coasts so as to protect and preserve the natural resources adjacent to their territories. Yet, Peru focuses on the 1952 Conference’s purpose as being to address collectively the problem of whaling in South Pacific waters, arguing that, in order to do so, it was necessary that “between them” the States parties police the 200-nautical-mile zone effectively. According to Peru, the object and purpose of the 1952 Santiago Declaration was not the division of fishing grounds between its States parties, but to create a zone functioning “as a single biological unit” — an exercise of regional solidarity — designed to address the threat posed by foreign whaling. Thus, Peru stresses that the 1952 Santiago Declaration does not include any stipulation as to how the States parties’ maritime zones are delimited from each other.

 The substantive provisions of the Agreement read as follows:

1. A special zone is hereby established, at a distance of [‘a partir de’] 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 [‘el limite maritimo’] between the two countries.
2. 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.
3. Fishing or hunting within the zone of 12 nautical miles from the coast shall be reserved exclusively to the nationals of each country.”

Article 4 is the standard provision, included in all six of the 1954 Agreements, deeming it to be “an integral and supplementary part” of the 1952 instruments which it was not in any way to abrogate (see paragraph 73 above).

According to Chile, the 1954 Special Maritime Frontier Zone Agreement was “the most relevant instrument adopted at the December 1954 Conference”. Its “basic predicate” was that the three States “already had lateral boundaries, or ‘frontiers’, in place between them”. Chile continues, citing the Judgment in the case concerning Territorial Dispute (Libyan Arab Jamahiriya/Chad), that in the 1954 Special Maritime Frontier Zone Agreement “the existence of a determined frontier was accepted and acted upon” (I.C.J. Reports 1994, p. 35, para. 66). It points out that Article 1 uses the present tense, referring to a maritime boundary already in existence, and the first recital indicates that it was violations of that existing boundary that prompted the Agreement.

Peru contends (1) that the Agreement was applicable only to Peru’s northern maritime border, that is, with Ecuador, and not also to the southern one, with Chile; (2) that Chile’s delay in ratifying (in 1967) and registering (in 2004) the Agreement shows that it did not regard it as of major importance such as establishing a maritime boundary; and (3) that the Agreement had a very special and temporary purpose and that the Parties were claiming a limited functional jurisdiction. Peru in its written pleadings, in support of its contention that the 1954 Special Maritime Frontier Zone Agreement applied only to its boundary with Ecuador and not to that with Chile, said that the “rather opaque formula” — the reference to the parallel in Article 1, introduced on the proposal of Ecuador — referred to only one parallel between two countries; it seems clear, Peru says, that the focus was on the waters between Peru and Ecuador.

With regard to Peru’s first argument, Chile in reply points out that the 1954 Special Maritime Frontier Zone Agreement has three States parties and that the ordinary meaning of “the two countries” in Article 1 is a reference to the States on either side of their shared maritime boundary. Chile notes that there is no qualification of the “maritime frontier” (in the Preamble), nor is there any suggestion that the term “adjacent States” refers only to Ecuador and Peru. Chile also points out that in 1962 Peru complained to Chile about “the frequency with which Chilean fishing vessels have trespassed into Peruvian waters”, stating that “the Government of Peru, taking strongly into account the sense and provisions of ‘the Agreement’” wished that the Government of Chile take certain steps particularly through the competent authorities at the port of Arica. As Chile noted, Peru did not at that stage make any reference to the argument that the 1954 Special Maritime Frontier Zone Agreement applied only to its northern maritime boundary.

In the view of the Court, there is nothing at all in the terms of the 1954 Special Maritime Frontier Zone Agreement which would limit it only to the Ecuador-Peru maritime boundary. Moreover Peru did not in practice accord it that limited meaning which would preclude its application to Peru’s southern maritime boundary with Chile. The Court further notes that the 1954 Special Maritime Frontier Zone Agreement was negotiated and signed by the representatives of all three States, both in the Commission and at the Inter-State Conference. All three States then proceeded to ratify it. They included it among the twelve treaties which they jointly submitted to the United Nations Secretariat for registration in 1973 (see paragraph 21 above).

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With regard to Peru’s second argument, Chile responds by pointing out that delay in ratification is common and contends that of itself the delay in ratification has no consequence for the legal effect of a treaty once it has entered into force. Further, it submits that the fact that registration of an Agreement is delayed is of no relevance.

The Court is of the view that Chile’s delay in ratifying the 1954 Special Maritime Frontier Zone Agreement and submitting it for registration does not support Peru’s argument that Chile considered that the Agreement lacked major importance. In any event, this delay has no bearing on the scope and effect of the Agreement. Once ratified by Chile the Agreement became binding on it. In terms of the argument about Chile’s delay in submitting the Agreement for registration, the Court recalls that, in 1973, all three States signatory to the 1952 and 1954 treaties, including the 1954 Special Maritime Frontier Zone Agreement, simultaneously submitted all of them for registration (see paragraphs 20 to 21 above).

With regard to Peru’s third argument that the 1954 Special Maritime Frontier Zone Agreement had a special and temporary purpose and that the Parties were claiming a limited functional jurisdiction, Chile’s central contention is that the “basic predicate” of the Agreement was that the three States “already had lateral boundaries, or ‘frontiers’, in place between them” (see paragraph 82 above). The reference in the title of the Agreement to a Special Maritime Frontier Zone and in the recitals to violations of the maritime frontier between adjacent States demonstrates, Chile contends, that a maritime frontier or boundary already existed when the three States concluded the Agreement in December 1954. The granting to small vessels of the benefit of a zone of tolerance was, in terms of the Preamble, intended to avoid “friction between the countries concerned, which may affect adversely the spirit of co-operation and unity which should at all times prevail among the countries signatories to the instruments signed at Santiago”. According to Chile, this was an inter-State problem and “not a problem relating to itinerant fishermen”. The States wished to eliminate obstacles to their complete co-operation in defence of their maritime claims. Chile emphasizes that Article 1, the primary substantive provision, is in the present tense: the ten-nautical-mile zones are being created to the north and south of a maritime boundary which already exists. Article 2, it says, also supports its position. The “accidental presence” in that zone of the vessels referred to in the Agreement is not considered a “violation” of the adjacent State’s maritime zone. Chile claims that although its ratification of the 1954 Special Maritime Frontier Zone Agreement came some time after its signature, the boundary whose existence was acknowledged and acted upon was already in place throughout the period leading to its ratification.

According to Peru, the aim of the 1954 Special Maritime Frontier Zone Agreement “was narrow and specific”, establishing a “zone of tolerance” for small and ill-equipped fishing vessels. Defining that zone by reference to a parallel of latitude was a practical approach for the crew of such vessels. The 1954 Special Maritime Frontier Zone Agreement did not have a larger purpose, such as establishing a comprehensive regime for the exploitation of fisheries or adding to the content of the 200-nautical-mile zones or setting out their limits and borders. Peru also maintains that “the 1954 Agreement was a practical arrangement, of a technical nature, and of limited geographical scope, not one dealing in any sense with political matters”.

In the view of the Court, the operative terms and purpose of the 1954 Special Maritime Frontier Zone Agreement are indeed narrow and specific. That is not however the matter under consideration by the Court at this stage. Rather, its focus is on one central issue, namely, the existence of a maritime boundary. On that issue the terms of the 1954 Special Maritime Frontier Zone Agreement, especially Article 1 read with the preambular paragraphs, are clear. They acknowledge in a binding international agreement that a maritime boundary already exists. The Parties did not see any difference in this context between the expression “limite maritimo” in Article 1 and the expression “frontera maritima” in the Preamble, nor does the Court.

The 1954 Special Maritime Frontier Zone Agreement does not indicate when and by what means that boundary was agreed upon. The Parties’ express acknowledgment of its existence can only reflect a tacit agreement which they had reached earlier. In this connection, the Court has already mentioned that certain elements of the 1947 Proclamations and the 1952 Santiago Declaration suggested an evolving understanding between the Parties concerning their maritime boundary (see paragraphs 43 and 69 above). In an earlier case, the Court, recognizing that “[t]he establishment of a permanent maritime boundary is a matter of grave importance”, underlined that “[e]vidence of a tacit legal agreement must be compelling” (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253). In this case, the Court has before it an Agreement which makes clear that the maritime boundary along a parallel already existed between the Parties. The  1954 Agreement is decisive in this respect. That Agreement cements the tacit agreement.

The 1954 Special Maritime Frontier Zone Agreement gives no indication of the nature of the maritime boundary. Nor does it indicate its extent, except that its provisions make it clear that the maritime boundary extends beyond 12 nautical miles from the coast.

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In this context, the Parties referred to an Opinion prepared in 1964 by Mr. Raul Bazan Davila, Head of the Legal Advisory Office of the Chilean Ministry of Foreign Affairs, in response to a request from the Chilean Boundaries Directorate regarding “the delimitation of the frontier between the Chilean and Peruvian territorial seas”. Having recalled the relevant rules of international law, Mr. Bazan examined the question whether some specific agreement on maritime delimitation existed between the two States. He believed that it did, but was not able to determine “when and how this agreement was reached”. Paragraph IV of the 1952 Santiago Declaration was not “an express pact” on the boundary, but it “assum[ed] that this boundary coincides with the parallel that passes through the point at which the land frontier reaches the sea”. It was possible to presume, he continued, that the agreement on the boundary preceded and conditioned the signing of the 1952 Santiago Declaration.

According to Peru, the fact that such a request was addressed to the Head of the Legal Advisory Office illustrates that the Chilean Government was unsure about whether there was a pre-existing boundary. Chile emphasizes Mr. Bazan’s conclusion that the maritime boundary between the Parties is the parallel which passes through the point where the land boundary reaches the sea. Chile also notes that this was a publicly available document and that Peru would have responded if it had disagreed with the conclusion the document stated, but did not do so.

Nothing in the Opinion prepared by Mr. Bazan, or the fact that such an Opinion was requested in the first place, leads the Court to alter the conclusion it reached above (see paragraphs 90 to 91), namely, that by 1954 the Parties acknowledged that there existed an agreed maritime boundary.

The 1968-1969 lighthouse arrangements

In 1968-1969, the Parties entered into arrangements to build one lighthouse each, “at the point at which the common border reaches the sea, near boundary marker number one”. At this point, the Court observes that on 26 April 1968, following communication between the Peruvian Ministry of Foreign Affairs and the Chilean charge d’affaires earlier that year, delegates of both Parties signed a document whereby they undertook the task of carrying out “an on-site study for the installation of leading marks visible from the sea to materialise the parallel of the maritime frontier originating at Boundary Marker number one (No. 1)”.

That document concluded as follows:

“Finally, given that the parallel which it is intended to materialise is that which corresponds to the geographical location indicated in the Act signed in Lima on 1 August 1930 for Boundary Marker No. 1, the Representatives suggest that the positions of this pyramid be verified by a Joint Commission before the execution of the recommended works.”

Chile sees the Parties, in taking this action, as explicitly recording their understanding that there was a “maritime frontier” between the two States and that it followed the line of latitude passing through Boundary Marker No. 1 (referred to in Spanish as “Hito No. 1”). Chile states that the Parties’ delegates “recorded their joint understanding that their task was to signal the existing maritime boundary”. Chile quotes the terms of the approval in August 1968 by the Secretary-General of the Peruvian Ministry of Foreign Affairs of the Minutes of an earlier meeting that the signalling marks were to materialize (“materializar”) the parallel of the maritime frontier. Chile further relies on an August 1969 Peruvian Note, according to which the Mixed Commission entrusted with demarcation was to verify the position of Boundary Marker No. 1 and to “fix the definitive location of the two alignment towers that were to signal the maritime boundary”. The Joint Report of the Commission recorded its task in the same terms.

In Peru’s view, the beacons erected under these arrangements were evidently a pragmatic device intended to address the practical problems arising from the coastal fishing incidents in the 1960s. It calls attention to the beacons’ limited range — not more than 15 nautical miles offshore. Peru argues that they were plainly not intended to establish a maritime boundary. Throughout the process, according to Peru, there is no indication whatsoever that the two States were engaged in the drawing of a definitive and permanent international boundary, nor did any of the correspondence refer to any pre-existent delimitation agreement. The focus was consistently, and exclusively, upon the practical task of keeping Peruvian and Chilean fishermen apart and solving a very specific problem within the 15-nautical-mile range of the lights.

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The Court is of the opinion that the purpose and geographical scope of the arrangements were limited, as indeed the Parties recognize. The Court also observes that the record of the process leading to the arrangements and the building of the lighthouses does not refer to any pre-existent delimitation agreement. What is important in the Court’s view, however, is that the arrangements proceed on the basis that a maritime boundary extending along the parallel beyond 12 nautical miles already exists. Along with the 1954 Special Maritime Frontier Zone Agreement, the arrangements acknowledge that fact. Also, like that Agreement, they do not indicate the extent and nature of that maritime boundary. The arrangements seek to give effect to it for a specific purpose.

The nature of the agreed maritime boundary

As the Court has just said, it is the case that the 1954 Special Maritime Frontier Zone Agreement refers to the existing boundary for a particular purpose; that is also true of the 1968-1969 arrangements for the lighthouses. The Court must now determine the nature of the maritime boundary, the existence of which was acknowledged in the 1954 Agreement, that is, whether it is a single maritime boundary applicable to the water column, the sea-bed and its subsoil, or a boundary applicable only to the water column.

Chile contends that the boundary is an all-purpose one, applying to the sea-bed and subsoil as well as to the waters above them with rights to their resources in accordance with customary law as reflected in the United Nations Convention on the Law of the Sea (UNCLOS). Peru submits that the line to which the 1954 Special Maritime Frontier Zone Agreement refers is related only to aspects of the policing of coastal fisheries and facilitating safe shipping and fishing in near-shore areas.

The Court is concerned at this stage with the 1954 Special Maritime Frontier Zone Agreement only to the extent that it acknowledged the existence of a maritime boundary. The tacit agreement, acknowledged in the 1954 Agreement, must be understood in the context of the 1947 Proclamations and the 1952 Santiago Declaration. These instruments expressed claims to the sea-bed and to waters above the sea-bed and their resources. In this regard the Parties drew no distinction, at that time or subsequently, between these spaces. The Court concludes that the boundary is an all-purpose one.

The extent of the agreed maritime boundary

The Court now turns to consider the extent of the agreed maritime boundary. It recalls that the purpose of the 1954 Agreement was narrow and specific (see paragraph 90 above): it refers to the existing maritime boundary for a particular purpose, namely to establish a zone of tolerance for fishing activity operated by small vessels. Consequently, it must be considered that the maritime boundary whose existence it recognizes, along a parallel, necessarily extends at least to the distance up to which, at the time considered, such activity took place. That activity is one element of the Parties’ relevant practice which the Court will consider, but it is not the only element warranting consideration. The Court will examine other relevant practice of the Parties in the early and mid-1950s, as well as the wider context including developments in the law of the sea at that time. It will also assess the practice of the two Parties subsequent to 1954. This analysis could contribute to the determination of the content of the tacit agreement which the Parties reached concerning the extent of their maritime boundary.

Fishing potential and activity

The Court will begin with the geography and biology in the area of the maritime boundary. Peru described Ilo as its principal port along this part of the coast. It is about 120 km north-west of the land boundary. On the Chilean side, the port city of Arica lies 15 km to the south of the land boundary and Iquique about 200 km further south (see sketch-map No. 1: Geographical context).

Peru, in submissions not challenged by Chile, emphasizes that the areas lying off the coasts of Peru and Chile are rich in marine resources, pointing out that the area in dispute is located in the Humboldt Current Large Maritime Ecosystem. That Current, according to Peru, supports an abundance of marine life, with approximately 18 to 20 per cent of the world’s fish catch coming from this ecosystem. The Peruvian representative at the 1958 United Nations Conference on the Law of the Sea (paragraph 106 below) referred to the opinion of a Peruvian expert (writing in a book published in 1947), according to which the “biological limit” of the Current was to be found at a distance of 80 to 100 nautical miles from the shore in the summer, and 200 to 250 nautical miles in the winter.

Peru recalls that it was the “enormous whaling and fishing potential” of the areas situated off their coasts which led the three States to proclaim 200-nautical-mile zones in 1952. Industrial fishing is carried out nowadays at significant levels in southern areas of Peru, notably from the ports of Ilo and Matarani: the former is “one of Peru’s main fishing ports and the most important fishing centre in southern Peru”.

Chilean and Peruvian representatives emphasized the richness and value of the fish stocks as preparations were being made for the first United Nations Conference on the Law of the Sea and at that Conference itself. In 1956 the Chilean delegate in the Sixth (Legal) Committee of the United Nations General Assembly, declaring that it was tragic to see large foreign fishing fleets exhausting resources necessary for the livelihood of coastal populations and expressing the hope that the rules established by the three States, including Ecuador, would be endorsed by international law, observed that “[t]he distance of 200 miles was explained by the need to protect all the marine flora and fauna living in the Humboldt current, as all the various species depended on one another for their existence and have constituted a biological unit which had to be preserved”. At the 1958 Conference, the Peruvian representative (who was the Foreign Minister at the time of the 1947 Declaration), in supporting the 200-nautical-mile limit, stated that what the countries had proclaimed was a biological limit:

“Species such as tunny and barrilete were mostly caught 20 to 80 miles from the coast; the same anchovetas of the coastal waters sometimes went 60 or more miles away; and the cachalot and whales were usually to be found more than 100 miles off.”

He then continued:

“The requests formulated by Peru met the conditions necessary for their recognition as legally binding and applicable since first, they were the expression of principles recognized by law; secondly, they had a scientific basis; and thirdly, they responded to national vital necessities.”

Chile referred the Court to statistics produced by the Food and Agricultural Organization of the United Nations (FAO) to demonstrate the extent of the fishery activities of Chile and Peru in the early 1950s and later years for the purpose of showing, as Chile saw the matter, the benefits of the 1952 Santiago Declaration to Peru. Those statistics reveal two facts which the Court sees as helpful in identifying the maritime areas with which the Parties were concerned in the period when they acknowledged the existence of their maritime boundary. The first is the relatively limited fishing activity by both Chile and Peru in the early 1950s. In 1950, Chile’s catch at about 90,000 tonnes was slightly larger than Peru’s at 74,000 tonnes. In the early 1950s, the Parties’ catches of anchovy were exceeded by the catch of other species. In 1950, for instance, Peru’s take of anchovy was 500 tonnes, while its catch of tuna and bonito was 44,600 tonnes; Chile caught 600 tonnes of anchovy that year, and 3,300 tonnes of tuna and bonito.

Second, in the years leading up to 1954, the Parties’ respective catches in the Pacific Ocean included large amounts of bonito/barrilete and tuna. While it is true that through the 1950s the take of anchovy, especially by Peru, increased very rapidly, the catch of the other species continued at a high and increasing level. In 1954 the Peruvian catch of tuna and bonito was 65,900, and of anchovy 43,100, while Chile caught 5,200 and 1,300 tonnes of those species, respectively.

The Parties also referred to the hunting of whales by their fleets and by foreign fleets as one of the factors leading to the adoption of the 1947 and 1952 instruments. The FAO statistics provide some information about the extent of whale catches by the Parties; there is no indication of where those catches occurred.

The above information shows that the species which were being taken in the early 1950s were generally to be found within a range of 60 nautical miles from the coast. In that context, the Court takes note of the orientation of the coast in this region, and the location of the most important relevant ports of the Parties at the time. Ilo, situated about 120 km north-west of the seaward terminus of the land boundary, is described by Peru as “one of [its] main fishing ports and the most important fishing centre in Southern Peru”. On the Chilean side, the port of Arica lies just 15 km to the south of the seaward terminus of the land boundary. According to Chile, “[a] significant proportion of the country’s small and medium-sized fishing vessels, of crucial importance to the economy of the region, are registered at Arica”, while the next significant port is at Iquique, 200 km further south.

The purpose of the 1954 Special Maritime Frontier Zone Agreement was to establish a zone of tolerance along the parallel for small fishing boats, which were not sufficiently equipped (see paragraphs 88 to 90 and 103). Boats departing from Arica to catch the above-mentioned species, in a west-north-west direction, in the range of 60 nautical miles from the coast, which runs essentially from north to south at this point, would not cross the parallel beyond a point approximately 57 nautical miles from the starting-point of the maritime boundary. The orientation of the coast turns sharply to the north-west in this region (see sketch-maps Nos. 1 and 2), such that, on the Peruvian side, fishing boats departing seaward from Ilo, in a south-west direction, to the range of those same species would cross the parallel of latitude at a point up to approximately 100 nautical miles from the starting-point of the maritime boundary.

The Court, in assessing the extent of the lateral maritime boundary which the Parties acknowledged existed in 1954, is aware of the importance that fishing has had for the coastal populations of both Parties. It does not see as of great significance their knowledge of the likely or possible extent of the resources out to 200 nautical miles nor the extent of their fishing in later years. The catch figures indicate that the principal maritime activity in the early 1950s was fishing undertaken by small vessels, such as those specifically mentioned in the 1954 Special Maritime Frontier Zone Agreement and which were also to benefit from the 1968-1969 arrangements relating to the lighthouses.

A central concern of the three States in the early 1950s was with long-distance foreign fishing, which they wanted to bring to an end. That concern, and the Parties’ growing understanding of the extent of the fish stocks in the Humboldt Current off their coasts, were major factors in the decisions made by Chile and Peru to declare, unilaterally, their 200-nautical-mile zones in 1947, and, with Ecuador, to adopt the 1952 Santiago Declaration and other texts in 1952 and to take the further measures in 1954 and 1955. To repeat, the emphasis in this period, especially in respect of the more distant waters, was, as Chile asserts, on “[t]he exclusion of unauthorized foreign fleets . . . to facilitate the development of the fishing industries of [the three States]”.

The Court recalls that the all-purpose nature of the maritime boundary (see paragraph 102 above) means that evidence concerning fisheries activity, in itself, cannot be determinative of the extent of that boundary. Nevertheless, the fisheries activity provides some support for the view that the Parties, at the time when they acknowledged the existence of an agreed maritime boundary between them, were unlikely to have considered that it extended all the way to the 200-nautical-mile limit.

Contemporaneous developments in the law of the sea

The Court now moves from the specific, regional context to the broader context as it existed in the 1950s, at the time of the acknowledgment by the Parties of the existence of the maritime boundary. That context is provided by the State practice and related studies in, and proposals coming from, the International Law Commission and reactions by States or groups of States to those proposals concerning the establishment of maritime zones beyond the territorial sea and the delimitation of those zones. By the 1950s that practice included several unilateral State declarations.

Those declarations, all adopted between 1945 and 1956, may be divided into two categories. The first category is limited to claims in respect of the sea-bed and its subsoil, the continental shelf, and their resources. They include declarations made by the United States (28 September 1945), Mexico (29 October 1945), Argentina (11 October 1946), Saudi Arabia (28 May 1949), Philippines (18 June 1949), Pakistan (9 March 1950), Brazil (8 November 1950), Israel (3 August 1952), Australia (11 September 1953), India (30 August 1955), Portugal (21 March 1956) and those made in respect of several territories then under United Kingdom authority: Jamaica (26 November 1948), Bahamas (26 November 1948), British Honduras (9 October 1950), North Borneo (1953), British Guiana (1954), Brunei (1954) and Sarawak (1954), as well as nine Arab States then under the protection of the United Kingdom (Abu Dhabi (10 June 1949), Ajman (20 June 1949), Bahrain (5 June 1949), Dubai (14 June 1949), Kuwait (12 June 1949), Qatar (8 June 1949), Ras al Khaimah (17 June 1949), Sharjah (16 June 1949), and Umm al Qaiwain (20 June 1949)). Other declarations, the second category, also claim the waters above the shelf or sea-bed or make claims in respect of the resources of those waters. In addition to the three claims in issue in this case, those claims include those made by the United States of America (28 September 1945), Panama (17 December 1946), Iceland (5 April 1948), Costa Rica (5 November 1949), Honduras (7 March 1950), El Salvador (7 September 1950) and Nicaragua (1 November 1950). The above-mentioned acts are reproduced in the United Nations collection, Laws and Regulations on the High Seas, Vol. I, 1951, Part 1, Chap. 1, and Supplement, 1959, Part 1, Chap. 1, and in the Parties’ Pleadings.

Some of the declarations did address the issue of establishing maritime boundaries. The first was the continental shelf declaration of the United States, which provided that, whenever the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. Those of Mexico and Costa Rica (like that of Chile, see paragraph 37 above) stated that the particular declaration each had made did not mean that that Government sought to disregard the lawful rights of other States, based on reciprocity. The wording in the Argentinean decree accorded conditional recognition to the right of each nation to the same entitlements as it claimed. Proclamations made by the Arab States then under United Kingdom protection all provided in similar terms that their exclusive jurisdiction and control of the sea-bed and subsoil extended to boundaries to be determined more precisely, as occasion arises, on equitable or, in one case, just principles, after consultation with the neighbouring States.

Those declarations were part of the background against which the International Law Commission worked in preparing its 1956 draft articles for the United Nations Conference on the Law of the Sea, held in 1958. On the basis, among other things, of the material summarized above, the report of a committee of experts, and comments by a significant range of States, the Commission proposed that, in the absence of an agreement or special circumstances, an equidistance line be used for delimitation of both the territorial sea and the continental shelf. The Commission in particular rejected, in the absence of an agreement, as a basis for the line the geographical parallel passing through the point at which the land frontier meets the coast. Chile and Ecuador in their observations submitted to the Commission contended that the rights of the coastal State over its continental shelf went beyond just “control” and “jurisdiction”; Chile, in addition, called for “sovereignty” over both the continental shelf and superjacent waters. However, neither State made any comment on the matter of delimitation. Peru made no comment of any kind. This further supports the view that the chief concern of the three States in this period was defending their 200-nautical-mile claims as against third States. The Commission’s proposals were adopted by the 1958 Conference and incorporated, with drafting amendments, in the Convention on the Territorial Sea and Contiguous Zone (Art. 12) and the Convention on the Continental Shelf (Art. 6). The territorial sea was not seen by the International Law Commission, and would not have been seen at that time by most nations, as extending beyond 6 nautical miles and the continental shelf line was for the sea-bed and subsoil, extending to a 200-metre depth or beyond to the limit of exploitability, and not for the resources of the water above the shelf.

The Court observes that, during the period under consideration, the proposal in respect of the rights of a State over its waters which came nearest to general international acceptance was for a 6-nautical-mile territorial sea with a further fishing zone of 6 nautical miles and some reservation of established fishing rights. As the Court has noted previously, in this period the concept of an exclusive economic zone of 200 nautical miles was “still some long years away” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 87, para. 70), while its general acceptance in practice and in the 1982 United Nations Convention on the Law of the Sea was about 30 years into the future. In answering a question from a Member of the Court, both Parties recognized that their claim made in the 1952 Santiago Declaration did not correspond to the international law of that time and was not enforceable against third parties, at least not initially.

On the basis of the fishing activities of the Parties at that time, which were conducted up to a distance of some 60 nautical miles from the main ports in the area, the relevant practice of other States and the work of the International Law Commission on the Law of the Sea, the Court considers that the evidence at its disposal does not allow it to conclude that the agreed maritime boundary along the parallel extended beyond 80 nautical miles from its starting-point.

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In light of this tentative conclusion, the Court now considers further elements of practice, for the most part subsequent to 1954, which may be of relevance to the issue of the extent of the agreed maritime boundary.

Legislative practice

In examining the legislative practice, the Court first turns to the adoption by Peru in 1955 of a Supreme Resolution on the Maritime Zone of 200 Miles. Its Preamble recites the need to specify, in cartographic and geodesic work, the manner of determining the Peruvian maritime zone of 200 nautical miles referred to in the 1947 Decree and the 1952 Santiago Declaration. Its first article states that the line was to be limited at sea by a line parallel to the Peruvian coast and at a constant distance of 200 nautical miles from it. Article 2 provides:

“In accordance with clause IV [‘el inciso IV’] of the Declaration of Santiago, the said line may not extend beyond that of the corresponding parallel at the point where the frontier of Peru [‘la frontera del Peru’] reaches the sea.”

Peru contends that Article 1 employs an arc of circles method, as, it says, was also the case with its 1952 Petroleum Law. Chile rejects that interpretation of both instruments and submits that both use the trace parallele method, supporting the use of the parallel of latitude for the maritime boundary. Chile also places considerable weight on the reference in the Resolution to paragraph IV of the 1952 Santiago Declaration.

In this regard, the Court has already concluded that paragraph IV of the 1952 Santiago Declaration does not determine the maritime boundary separating the general maritime zones of Peru and Chile. It need not consider that matter further in the present context. The Court does not see the requirement in Article 1 of the 1955 Supreme Resolution that the line be “at a constant distance of 200 nautical miles from [the coast]” and parallel to it as using the trace parallele method in the sense that Chile appears to understand it. Some points on a line drawn on that basis (using the parallel lines of latitude) would in certain areas of Peruvian coastal waters, especially near the land boundary of the two States, be barely 100 nautical miles from the closest point on the coast. That would not be in conformity with the plain words of the 1955 Supreme Resolution. Hence, the Peruvian 1955 Supreme Resolution is of no assistance when it comes to determining the extent of the maritime frontier whose existence the Parties acknowledged in 1954.

In respect of Chilean legislation, Peru highlights the absence of references to a lateral maritime boundary in five Chilean texts: a 25 July 1953 Decree which defined the maritime jurisdiction of the Directorate General of Maritime Territory and Merchant Marine; a 26 July 1954 Message from the Chilean Executive to the Congress for the Approval of the 1952 Agreements; a 23 September 1954 Supreme Decree by which Chile approved the 1952 Santiago Declaration; an 11 February 1959 Decree on Permits for Fishing by Foreign Vessels in Chilean Territorial Waters; and a 4 June 1963 Decree on the Appointment of the Authority which Grants Fishing Permits to Foreign Flag Vessels in Chilean Jurisdictional Waters. In response, Chile contends that the 1952 Santiago Declaration became part of Chilean law upon ratification and so there was no need to reaffirm the existence of the maritime boundary in subsequent legislation.

The Court finds that these five Chilean instruments are of no assistance as to the extent of the maritime frontier whose existence the Parties acknowledged in 1954, for the following reasons. The 1953 Decree relates to the territorial sea out to 12 nautical miles. The 1954 Message recalls the 200-nautical-mile claim made by the three States in 1952 but makes no mention of boundaries between those States. The 1954 Supreme Decree simply reproduces the text of the instruments adopted at the Lima Conference without commenting on their effect. The 1959 Decree refers repeatedly to “Chilean territorial waters” without defining the limits — lateral or seaward — of these waters. Finally, the 1963 Decree speaks of the 200-nautical-mile zone established under the 1952 Santiago Declaration but makes no reference to a lateral boundary within that zone.

The 1955 Protocol of Accession

In 1955 the three States adopted a Protocol of Accession to the 1952 Santiago Declaration. In that Protocol they agree “to open the accession of Latin American States to [the 1952 Santiago Declaration] with regard to its fundamental principles” contained in the paragraphs of the Preamble. The three States then reproduce substantive paragraphs I, II, III and V, but not paragraph IV. On the matter of boundaries they 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 form of delimitation of its respective zone whether opposite to one part or to the entirety of its coastline, according to the peculiar geographic conditions, the extension of each sea and the geological and biological factors that condition the existence, conservation and development of the maritime fauna and flora in its waters.”

The only other provision of the 1952 Santiago Declaration which was the subject of an express exclusion from the 1955 Protocol was paragraph VI which concerns the possibility of future agreements in application of these principles. This provision was excluded on the basis that it was “determined by the geographic and biological similarity of the coastal maritime zones of the signatory countries” to the Declaration. It is common ground that no State in fact ever took advantage of the 1955 Protocol.

Peru sees the affirmation of the power of an acceding State to determine the extension and limits of its zone as confirming that the 1952 Santiago Declaration had not settled the question of the maritime boundaries between the States parties. Chile reads the positions of the two Parties on paragraph IV in the contrary sense: by that exclusion they indicated their understanding that their maritime boundary was already determined.

Given the conclusion that the Court has already reached on paragraph IV, its exclusion from the text of the 1955 Protocol, and the fact that no State has taken advantage of the Protocol, the Court does not see the Protocol as having any real significance. It may however be seen as providing some support to Peru’s position that the use of lateral maritime boundaries depended on the particular circumstances of the States wishing to accede to the 1952 Santiago Declaration. More significantly, the 1955 Protocol may also be seen as an attempt to reinforce solidarity for the reasons given by Peru, Chile and Ecuador in their own national legal measures and in the 1952 Santiago Declaration, and as manifested in their other actions in 1955, in response to the protests of maritime powers (see paragraphs 76 to 77 above).

Enforcement activities

Much of the enforcement practice relevant to the maritime boundary can be divided between that concerning vessels of third States and that involving Peru and Chile, and by reference to time. In respect of the second distinction the Court recalls that its primary, but not exclusive, interest is with practice in the early 1950s when the Parties acknowledged the existence of their maritime boundary.

In respect of vessels of third States, Chile draws on a 1972 report of the CPPS Secretary-General on Infractions in the Maritime Zone between 1951 and 1971. The data, the report says, are incomplete for the first ten years. According to the report, in the course of the 20 years it covers, Peru arrested 53 vessels, Chile five and Ecuador 122, the final figure explained by the fact that the interest of foreign fishing fleets had focused, especially in more recent years, on tuna, the catch of which was greater in Ecuadorean waters. All but six of the 53 vessels arrested in Peruvian waters carried the United States flag; five (in the Onassis fleet) carried the Panamanian; and one the Japanese. In the case of 20 of the 53 arrests, the report records or indicates the place at which the arrests took place and all of those places are far to the north of the parallel of latitude extending from the land boundary between Peru and Chile, and closer to the boundary between Peru and Ecuador. For 36, the distance from the coast is indicated. They include the Onassis fleet which on one account was arrested 126 nautical miles offshore (see paragraph 75 above). Of the other arrests, only one (in 1965) was beyond 60 nautical miles of the coast of Peru and only two others (in 1965 and 1968) were beyond 35 nautical miles; all three of these arrests occurred more than 500 nautical miles to the north of that latitudinal parallel.

Until the mid-1980s, all the practice involving incidents between the two Parties was within about 60 nautical miles of the coasts and usually much closer. In 1954 and 1961, Chile proposed that fishing vessels of the Parties be permitted to fish in certain areas of the maritime zone of the other State, up to 50 nautical miles north/south of the parallel, but the exchanges between the Parties do not indicate how far seaward such arrangements would have operated; in any event Chile’s proposals were not accepted by Peru. In December 1962, Peru complained about “the frequency with which Chilean fishing vessels have trespassed into Peruvian waters, at times up to 300 metres from the beach”. In March 1966, the Peruvian patrol ship Diez Canseco was reported to have intercepted two Chilean fishing vessels and fired warning shots at them, but the entire incident took place within 2 nautical miles of the coast. Two incidents in September 1967 — the sighting by Peru of several Chilean trawlers “north of the jurisdictional boundary” and the sighting by Chile of a Peruvian patrol boat “south of the Chile-Peru boundary parallel” — both occurred within 10 nautical miles of Point Concordia. Following a third incident that month, Peru complained about a Chilean fishing net found 2 nautical miles west of Point Concordia. In respect of these incidents, the Court recalls that the zone of tolerance established under the 1954 Agreement starts at a distance of 12 nautical miles from the coast along the parallel of latitude.

The practice just reviewed does not provide any basis for putting into question the tentative conclusion that the Court expressed earlier. That conclusion was based on the fishing activity of the Parties and contemporaneous developments in the law of the sea in the early and mid-1950s.

The 1968-1969 lighthouse arrangements

The Court recalls its discussion of the 1968-1969 lighthouse arrangements (see paragraphs 96 to 99 above). The record before the Court indicates that the lights would have been visible from a maximum distance of approximately 15 nautical miles; as Chile acknowledges, the Parties were particularly concerned with visibility within the first 12 nautical miles from the coast, up to the point where the zone of tolerance under the 1954 Special Maritime Frontier Zone Agreement commenced, and where many of the incursions were reported. There are indications in the case file that the towers had radar reflectors but there is no information at all of their effective range or their use in practice. The Court does not see these arrangements as having any significance for the issue of the extent of the maritime boundary.

Negotiations with Bolivia (1975-1976)

In 1975-1976, Chile entered into negotiations with Bolivia regarding a proposed exchange of territory that would provide Bolivia with a “corridor to the sea” and an adj acent maritime zone. The record before the Court comprises the Chilean proposal to Bolivia of December 1975, Peru’s reply of January 1976, Chile’s record (but not Peru’s) of discussions between the Parties in July 1976 and Peru’s counter-proposal of November 1976. Chile’s proposal of December 1975 stated that the cession would include, in addition to a strip of land between Arica and the Chile-Peru land boundary, “the maritime territory between the parallels of the extreme points of the coast that will be ceded (territorial sea, economic zone and continental shelf)”. This proposal was conditional, among other things, on Bolivia ceding to Chile an area of territory as compensation. The record before the Court does not include the Bolivian-Chilean exchanges of December 1975. As required under Article 1 of the Supplementary Protocol to the 1929 Treaty of Lima, Peru was formally consulted on these negotiations. In January 1976, Peru acknowledged receipt of documents from Chile regarding the proposed cession. Peru’s response was cautious, noting a number of “substantial elements” arising, including the consequences of “the fundamental alteration of the legal status, the territorial distribution, and the socio-economic structure of an entire region”. According to Chile’s record of discussions between the Parties, in July 1976 Chile informed Peru that it would seek assurances from Bolivia that the latter would comply with the 1954 Special Maritime Frontier Zone Agreement, while Peru confirmed that it had not identified in Chile’s proposal any “major problems with respect to the sea”. On 18 November 1976, Peru made a counter-proposal to Chile which contemplated a different territorial regime: cession by Chile to Bolivia of a sovereign corridor to the north of Arica; an area of shared Chilean-Peruvian-Bolivian sovereignty over territory between that corridor and the sea; and exclusive Bolivian sovereignty over the sea adjacent to the shared territory.

According to Chile, its negotiations with Bolivia proceeded on the explicit basis that the existing maritime boundary, following the latitudinal parallel, would delimit the envisaged maritime zone of Bolivia vis-a-vis Peru. Chile submits that Peru was specifically consulted on this matter, and expressed no objection or reservation, but rather “acknowledged the existence and course of the Chile-Peru maritime boundary” at one of the sessions between the Parties in 1976. For its part, Peru stresses that neither its Note of January 1976 nor its alternative proposal of November 1976 mentioned a parallel of latitude or suggested any method of maritime delimitation for Bolivia’s prospective maritime zone. Peru further contends that Chile’s records of the 1976 discussions are unreliable and incomplete, and that its own position at the time was clearly that the territorial divisions in the area were still to be negotiated.

The Court does not find these negotiations significant for the issue of the extent of the maritime boundary between the Parties. While Chile’s proposal referred to the territorial sea, economic zone and continental shelf, Peru did not accept this proposal. Peru’s January 1976 acknowledgment did not mention any existing maritime boundary between the Parties, while its counter-proposal from November of that year did not indicate the extent or nature of the maritime area proposed to be accorded to Bolivia.

Positions of the Parties at the Third United Nations Conference on the Law of the Sea

The Parties also directed the Court to certain statements made by their representatives during the Third United Nations Conference on the Law of the Sea. First, both referred to a joint declaration on 28 April 1982 made by Chile, Ecuador and Peru, together with Colombia, which had joined the CPPS in 1979, wherein those States pointed out that:

“the universal recognition of the rights of sovereignty and jurisdiction of the coastal State within the 200-mile limit provided for in the draft Convention is a fundamental achievement of the countries members of the Permanent Commission of the South Pacific, in accordance with its basic objectives stated in the Santiago Declaration of 1952”.

The Court notes that this statement did not mention delimitation, nor refer to any existing maritime boundaries between those States.

A second matter raised by the Parties is Peru’s involvement in the negotiations relating to maritime delimitation of States with adjacent or opposite coasts. The Peruvian position on that matter was expressed at various points during the negotiations; on 27 August 1980, the Head of the Peruvian Delegation stated it as follows:

“Where a specific agreement on the delimitation of the territorial sea, exclusive economic zone and continental shelf between States with opposite or adjacent coasts did not exist or where there were no special circumstances or historic rights recognized by the Parties, the median line should as a general rule be used . . . since it was the most likely method of achieving an equitable solution.”

Peru contends that its “active participation” in the negotiations on this matter illustrates that it had yet to resolve its own delimitation issues. Given the conclusions reached above, however, the Court need not consider that matter. The statements by Peruvian representatives at the Third United Nations Conference on the Law of the Sea relate to prospective maritime boundary agreements between States (and provisional arrangements to be made pending such agreements); they do not shed light on the extent of the existing maritime boundary between Peru and Chile.

The 1986 Bakula Memorandum

It is convenient to consider at this point a memorandum sent by Peruvian Ambassador Bakula to the Chilean Ministry of Foreign Affairs on 23 May 1986, following his audience with the Chilean Foreign Minister earlier that day (“the Bakula Memorandum”). Peru contends that in that Memorandum it “invites Chile to agree an international maritime boundary”. Chile, to the contrary, submits that the Bakula Memorandum was an attempt to renegotiate the existing maritime boundary.

According to the Memorandum, Ambassador Bakula had handed the Chilean Minister a personal message from his Peruvian counterpart. The strengthening of the ties of friendship between the two countries “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 merits 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 that time, the Memorandum continued, the special zone established by the 1954 Agreement “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”.

It referred to the various zones recognized in UNCLOS and said this:

“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 drawn 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.”

On 13 June 1986, in an official communique, the Chilean Foreign Ministry said that:

“Ambassador Bakula expressed the interest of the Peruvian Government to start future conversations between the two countries on their points of view regarding maritime delimitation.

The Minister of Foreign Affairs, taking into consideration the good relations existing between both countries, took note of the above stating that studies on this matter shall be carried out in due time.”

Peru contends that the Bakula Memorandum is perfectly clear. In it Peru spelled out the need for “the formal and definitive delimitation” of their maritime spaces, distinguishing it from the ad hoc arrangements for specific purposes, such as the 1954 fisheries policing tolerance zone. It called for negotiations, not “renegotiations”. And, Peru continues, Chile did not respond by saying that there was no need for such a delimitation because there was already such a boundary in existence. Rather “studies . . . are to be carried out”. Peru, based on the Memorandum and this response, also contends that the practice after that date which Chile invokes cannot be significant.

Chile, in addition to submitting that the Bakula Memorandum called for a renegotiation of an existing boundary, said that it did that on the (wrong) assumption that the maritime zones newly recognized in UNCLOS called for the existing delimitation to be revisited. As well, Peru did not renew its request to negotiate. Chile submits that the fact that Peru was seeking a renegotiation was reflected in contemporaneous comments by the Peruvian Foreign Minister, reported in the Chilean and Peruvian press.

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The Court does not read the Bakula Memorandum as a request for a renegotiation of an existing maritime boundary. Rather, it calls for “the formal and definitive delimitation of the marine spaces”. While Peru does recognize the existence of the special zone, in its view that zone did not satisfy the requirements of safety nor did it allow an appropriate administration of marine resources; further, an extensive interpretation of the Special Maritime Frontier Zone Agreement would negatively affect Peru’s legitimate interests. In the Court’s view, the terms used in that Memorandum do acknowledge that there is a maritime boundary, without giving precise information about its extent. The Court does not see the newspaper accounts as helpful. They do not purport to report the speech of the Peruvian Minister in full.

There is force in the Chilean contention about Peru’s failure to follow up on the issues raised in the Bakula Memorandum in a timely manner: according to the record before the Court, Peru did not take the matter up with Chile at the diplomatic level again until 20 October 2000, before repeating its position in a Note to the United Nations Secretary-General in January 2001 and to Chile again in July 2004. However, the Court considers that the visit by Ambassador Bakula and his Memorandum do reduce in a major way the significance of the practice of the Parties after that date. The Court recalls as well that its primary concern is with the practice of an earlier time, that of the 1950s, as indicating the extent of the maritime boundary at the time the Parties acknowledged that it existed.

Practice after 1986

The Court has already considered the Parties’ legislative practice from the 1950s and 1960s (see paragraphs 119 to 122 above). Chile also relies on two pieces of legislation from 1987: a Peruvian Supreme Decree adopted on 11 June 1987 and a Chilean Supreme Decree adopted on 26 October of that year. Chile sees these instruments as evidence that, in defining the areas of sovereign control by their navies, the Parties respected the maritime boundary.

The Court notes that these Decrees define the limits of the Parties’ internal maritime districts. However, as Peru points out in respect of its own Decree, while these instruments define the northern and southern limits of districts with some specificity (by reference to parallels of latitude), that is not the case for those limits abutting international boundaries between Ecuador and Peru, Peru and Chile, or Chile and Argentina. These Decrees define the internal limits of the jurisdiction of certain domestic authorities within Chile and within Peru; they do not purport to define the international limits of either State. In view also of the temporal considerations mentioned above, the Court does not see these Decrees as significant.

Peru in addition referred the Court to a Chilean Decree of 1998 defining benthonic areas of the Chilean coast; the northern limit ran to the south-west. But, as Chile says, the Decree was concerned only with the harvesting of living resources on and under the sea-bed within its “territorial seas”. The Court does not see this Decree as significant for present purposes.

The Court returns to evidence of enforcement measures between the Parties. The next capture recorded in the case file after May 1986 is from 1989: the Peruvian interception and capture of two Chilean fishing vessels within Peruvian waters, 9.5 nautical miles from land and  5 nautical miles north of the parallel.

Chile also provided information, plotted on a chart, of Peruvian vessels captured in 1984 and from 1994 in the waters which, in Chile’s view, are on its side of the maritime boundary. The information relating to 1984 records 14 vessels but all were captured within 20 nautical miles of the coast; in 1994 and 1995, 15, all within 40 nautical miles; and it is only starting in 1996 that arrests frequently occurred beyond 60 nautical miles. Those incidents all occurred long after the 1950s and even after 1986. The Court notes, however, that Chile’s arrests of Peruvian vessels south of the parallel, whether they took place within the special zone or further south, provide some support to Chile’s position, although only to the extent that such arrests were met without protest by Peru. This is the case even with respect to arrests taking place after 1986.

Given its date, the Court does not consider as significant a sketch-map said to be part of the Chilean Navy’s Rules of Engagement in the early 1990s and which depicts a Special Maritime Frontier Zone stretching out to the 200-nautical-mile limit, or information provided by Chile in respect of reports to the Peruvian authorities by foreign commercial vessels between 2005 and 2010 and to the Chilean authorities by Peruvian fishing vessels across the parallel.

The extent of the agreed maritime boundary: conclusion

The tentative conclusion that the Court reached above was that the evidence at its disposal does not allow it to conclude that the maritime boundary, the existence of which the Parties acknowledged at that time, extended beyond 80 nautical miles along the parallel from its starting-point. The later practice which it has reviewed does not lead the Court to change that position. The Court has also had regard to the consideration that the acknowledgment, without more, in 1954 that a “maritime boundary” exists is too weak a basis for holding that it extended far beyond the Parties’ extractive and enforcement capacity at that time.

Broader considerations relating to the positions of the three States parties to the 1954 Special Maritime Frontier Zone Agreement, particularly the two Parties in this case, in the early 1950s demonstrates that the primary concern of the States parties regarding the more distant waters, demonstrated in 1947, in 1952, in 1954 (in their enforcement activities at sea as well as in their own negotiations), in 1955 and throughout the United Nations process which led to the 1958 Conventions on the Law of the Sea, was with presenting a position of solidarity, in particular, in respect of the major third countries involved in long distance fisheries. The States parties were concerned, as they greatly increased their fishing capacity, that the stock was not depleted by those foreign fleets.

The seizure of the Onassis whaling fleet, undertaken by Peru in defence of the claims made by the three signatories to the 1952 Santiago Declaration (see paragraph 75 above), was indicative of these concerns. This action occurred 126 nautical miles off of the Peruvian coast. Prior to its seizure, the fleet unsuccessfully sought permission from Peru that it be allowed to hunt between 15 and 100 nautical miles from the Peruvian coast.

The material before the Court concerning the Parties’ focus on solidarity in respect of long distance fisheries does not provide it with precise information as to the exact extent of the maritime boundary which existed between the Parties. This issue could be expected to have been resolved by the Parties in the context of their tacit agreement and reflected in the treaty which acknowledges that tacit agreement, namely the 1954 Special Maritime Frontier Zone Agreement. This did not happen. This left some uncertainty as to the precise length of the agreed maritime boundary. However, based on an assessment of the entirety of the relevant evidence presented to it, the Court concludes that the agreed maritime boundary between the Parties extended to a distance of 80 nautical miles along the parallel from its starting-point.

V: The starting-point of the agreed maritime boundary

Having concluded that there exists a maritime boundary between the Parties, the Court must now identify the location of the starting-point of that boundary.

Both Parties agree that the land boundary between them was settled and delimited more than 80 years ago in accordance with Article 2 of the 1929 Treaty of Lima (see paragraph 18) which specifies that “the frontier between the territories of Chile and Peru . . . shall start from a point on the coast to be named ‘Concordia’, ten kilometres to the north of the bridge over the river Lluta”. Article 3 of the 1929 Treaty of Lima stipulates that the frontier is subject to demarcation by a Mixed Commission consisting of one member appointed by each Party.

According to Peru, the delegates of the Parties to the Mixed Commission could not agree on the exact location of Point Concordia. Peru recalls that this was resolved through instructions issued by the Ministers of Foreign Affairs of each State to their delegates in April 1930 (hereinafter the “Joint Instructions”), specifying to the delegates that Point Concordia was to be the point of intersection between the Pacific Ocean and an arc with a radius of 10 km having its centre on the bridge over the River Lluta, with the land frontier thus approaching the sea as an arc tending southward. Peru notes that the Joint Instructions also provided that “[a] boundary marker shall be placed at any point of the arc, as close to the sea as allows preventing it from being destroyed by the ocean waters”.

Peru recalls that the Final Act of the Commission of Limits Containing the Description of Placed Boundary Markers dated 21 July 1930 (hereinafter the “Final Act”), agreed by the Parties, records that “[t]he demarcated boundary line starts from the Pacific Ocean at a point on the seashore ten kilometres northwest from the first bridge over the River Lluta of the Arica-La Paz railway” (emphasis added). Peru argues that the Final Act then indicates that the first marker along the physical demarcation of the land boundary is Boundary Marker No. 1 (Hito No. 1), located some distance from the low-water line so as to prevent its destruction by ocean waters at 18° 21′ 03” S, 70° 22′ 56” W. Peru thus considers that the Final Act distinguishes between a “point” as an abstract concept representing the geographical location of the starting-point of the land boundary (i.e., Point Concordia) and “markers” which are actual physical structures along the land boundary. In Peru’s view, as the Final Act refers to both the point derived from Article 2 of the 1929 Treaty of Lima and Boundary Marker No. 1, these two locations must be distinct. Thus, relying on both the Joint Instructions and the Final Act, Peru maintains that Boundary Marker No. 1 was not intended to mark the start of the agreed land boundary but was simply intended to mark, in a practical way, a point on the arc constituting such boundary. Peru moreover refers to contemporaneous sketch-maps which are said to clearly demonstrate that the land boundary does not start at Boundary Marker No. 1. Peru further contends that the reference in the Final Act to Boundary Marker No. 1 as being located on the “seashore” is a mere general description, with this being consistent with the general manner in which other boundary markers are described in the same document. Finally, Peru clarifies that the Final Act agrees to give Boundary Marker No. 9, located near the railway line, the name of “Concordia” for symbolic reasons, an explanation with which Chile agrees.

In Chile’s view, the outcome of the 1929 Treaty of Lima and 1930 demarcation process was that the Parties agreed that Boundary Marker No. 1 was placed on the seashore with astronomical co-ordinates 18° 21′ 03” S, 70° 22′ 56” W and that the land boundary started from this Marker. Chile characterizes the Joint Instructions as indicating that there would be a starting-point on the coast of the land boundary, instructing the delegates to ensure the placement of a marker to indicate such starting-point. Chile relies on an Act of Plenipotentiaries dated 5 August 1930 signed by the Ambassador of Chile to Peru and the Minister of Foreign Affairs of Peru, claiming that it records the “definitive location and characteristics” of each boundary marker and acknowledges that the boundary markers, beginning in order from the Pacific Ocean, demarcate the Peruvian-Chilean land boundary.

Peru considers that Chile’s claim that Boundary Marker No. 1 is the starting-point of the land boundary faces two insurmountable problems. For Peru, the first such problem is that it means that an area of the land boundary of approximately 200 metres in length has not been delimited, which is not the intention of the 1929 Treaty of Lima and the Final Act. The second problem, according to Peru, is that a maritime boundary cannot start on dry land some 200 metres inland from the coast, referring to what it claims to be a “cardinal principle” of maritime entitlement that the “land dominates the sea”. Alternatively, Peru notes that Chile’s interpretation requires that the maritime boundary starts where the parallel passing through Boundary Marker No. 1 reaches the sea, with this being inconsistent with the 1929 Treaty of Lima and the Joint Instructions which clearly refer to the land boundary as following an arc southward from Boundary Marker No. 1. Peru argues that, at least until the 1990s, Chile’s own cartographic and other practice clearly acknowledges the starting-point of the land boundary as being Point Concordia, a point recognized as distinct from Boundary Marker No. 1.

Chile argues that the lighthouse arrangements of 1968-1969 are also relevant in that they involved a joint verification of the exact physical location of Boundary Marker No. 1. According to Chile, the 1952 Santiago Declaration did not identify the parallel running through the point where the land frontier reaches the sea. The observance and identification of such parallel by mariners gave rise to practical difficulties between the Parties, as a result of which they agreed to signal such parallel with two lighthouses aligned through Boundary Marker No. 1. Chile refers to a document dated 26 April 1968, signed by both Parties, which it claims represents an agreement that it is the parallel of the maritime frontier which would be marked by the lighthouses. Thus, Chile claims that “[t]he 1968-1969 arrangements and the signalling process as a whole confirmed Hito No. 1 as the reference point for the parallel of latitude constituting the maritime boundary between the Parties”, further contending that the Parties have also used the parallel passing through this point as the maritime boundary for the capture and prosecution of foreign vessels. Chile further argues that there is corresponding Peruvian practice between 1982 and 2001 treating the parallel running through Boundary Marker No. 1 as the southernmost point of Peruvian territory.

Peru recalls that when it proposed to Chile, in 1968, to conclude the lighthouse arrangements, it suggested that it could be “convenient, for both countries, to proceed to build posts or signs of considerable dimensions and visible at a great distance, at the point at which the common border reaches the sea, near boundary marker number one”, with Peru submitting that the language of “near Boundary Marker No. 1” clearly indicates that this point was distinct from the seaward terminus of the land boundary at Point Concordia. Peru then continues to explain that the placement of the Peruvian lighthouse at Boundary Marker No. 1 was motivated by practical purposes, arguing that as the purpose of the arrangement was to provide general orientation to artisanal fishermen operating near the coast, not to delimit a maritime boundary, aligning the lights along Boundary Marker No. 1 proved sufficient.

The Peruvian Maritime Domain Baselines Law, Law No. 28621 dated 3 November 2005, identifies the co-ordinates of Point Concordia as 18° 21′ 08” S, 70° 22′ 39” W, as measured on the WGS 84 datum. The Law sets out 266 geographical co-ordinates used to measure Peru’s baselines, culminating in so-called “Point 266”, which Peru claims coincides with Point Concordia.

Peru contends that Chile has sought, in recent years, to unsettle what it claims to be the Parties’ previous agreement that the starting-point of the land boundary is Point Concordia, referring in this regard to an incident in early 2001 in which Chile is alleged to have placed a surveillance booth between Boundary Marker No. 1 and the seashore, an action which elicited an immediate protest from Peru, with this booth being subsequently removed. Chile claims that its decision to remove this booth was motivated by the proposals of the armies of both Parties that no surveillance patrols occur within 100 metres of the international land boundary, with Chile claiming that it duly reserved its position regarding the course of the land boundary. Peru refers also in this regard to Chilean attempts to pass internal legislation in 2006-2007 referring to the starting-point of the land boundary as the intersection with the seashore of the parallel passing through Boundary Marker No. 1, rather than Point Concordia. Chile considers that its failure to pass the relevant legislation in its originally proposed form was not connected to the substance of the aforementioned reference.

*

The Court notes that on 20 October 2000, Peru communicated to Chile that the Parties disagreed concerning the status of the parallel passing through Boundary Marker No. 1 as a maritime boundary. On 9 January 2001, Peru informed the Secretary-General of the United Nations that it did not agree with Chile’s understanding that a parallel constituted the maritime boundary between them at 18° 21′ 00” S. On 19 July 2004, Peru described the situation as being one in which exchanges between the Parties had revealed “totally dissenting and opposed juridical positions about the maritime delimitation which, in accordance with International Law, evidence a juridical dispute”. In such circumstances, the Court will not consider the arguments of the Parties concerning an incident involving a surveillance booth in 2001, the Peruvian Maritime Domain Baselines Law dated 3 November 2005 or the Chilean legislative initiatives in 2006-2007, as such events occurred after it had become evident that a dispute concerning this issue had arisen and thus these actions could be perceived as motivated by the Parties’ positions in relation thereto.

The Court observes that a considerable number of the arguments presented by the Parties concern an issue which is clearly not before it, namely, the location of the starting-point of the land boundary identified as “Concordia” in Article 2 of the 1929 Treaty of Lima. The Court’s task is to ascertain whether the Parties have agreed to any starting-point of their maritime boundary. The jurisdiction of the Court to deal with the issue of the maritime boundary is not contested.

The Court notes that during the early preparations for the lighthouse arrangements in April 1968 (discussed at paragraph 96 above) delegates of both Parties understood that they were preparing for the materialization of the parallel running through Boundary Marker No. 1, which the delegates understood to be the maritime frontier, and that the delegates communicated such understanding to their respective Governments.

The Governments of both Parties then confirmed this understanding. The Note of 5 August 1968 from the Secretary-General of Foreign Affairs of Peru to the charge d’affaires of Chile states:

“I am pleased to inform Your Honour that the Government of Peru approves in their entirety the terms of the document signed on the Peruvian-Chilean border on 26 April 1968 by the representatives of both countries in relation to the installation of leading marks to materialise the parallel of the maritime frontier.

As soon as Your Honour informs me that the Government of Chile is in agreement, we will be pleased to enter into the necessary discussions in order to determine the date on which the Joint Commission may meet in order to verify the position of Boundary Marker No. 1 and indicate the definitive location of the towers or leading marks . . .”

The Court notes Peru’s approval of the entirety of the document dated 26 April 1968.

The Chilean response of 29 August 1968 from the Embassy of Chile to the Ministry of Foreign Affairs of Peru is in the following terms:

“The Embassy of Chile presents its compliments to the Honourable Ministry of Foreign Affairs and has the honour to refer to the Meeting of the Joint Chilean-Peruvian Commission held on 25 and 26 April 1968 in relation to the study of the installation of the leading marks visible from the sea to materialise the parallel of the maritime frontier originating at Boundary Marker No. 1.

On this point, the Embassy of Chile is pleased to accept on behalf of the Government of Chile the proposals which the technical representatives of both countries included in the Act which they signed on 28 [sic] April 1968 with a view to taking the measures for the abovementioned signalling in order to act as a warning to fishing vessels that normally navigate in the maritime frontier zone.

Given that the parallel which it is intended to materialise is the one which corresponds to the geographical situation indicated by Boundary Marker No. 1 as referred to in the Act signed in Lima on 1 August 1930, the Chilean Government agrees that an ad hoc Joint Commission should be constituted as soon as possible for the purpose of verifying the position of this pyramid and that, in addition, the said Commission should determine the position of the sites where the leading marks are to be installed.”

The Act of the Chile-Peru Mixed Commission in Charge of Verifying the Location of Boundary Marker No. 1 and Signalling the Maritime Boundary of 22 August 1969 (hereinafter the “1969 Act”), signed by the delegates of both Parties, introduces its task using the following language:

“The undersigned Representatives of Chile and of Peru, appointed by their respective Governments for the purposes of verifying the original geographical position of the concrete-made Boundary Marker number one (No. 1) of the common frontier and for determining the points of location of the Alignment Marks that both countries have agreed to install in order to signal the maritime boundary and physically to give effect to the parallel that passes through the aforementioned Boundary Marker number one . . .” (Emphasis added.)

The 1969 Act recommends the rebuilding of the damaged Boundary Marker No. 1 on its original location, which remained visible. The 1969 Act also includes a section entitled Joint Report signed by the Heads of each Party’s Delegation, describing their task as follows:

“The undersigned Heads of Delegations of Chile and of Peru submit to their respective Governments the present Report on the state of repair of the boundary markers in the section of the Chile-Peru frontier which they have had the opportunity to inspect on the occasion of the works which they have been instructed to conduct in order to verify the location of Boundary Marker number one and to signal the maritime boundary.”

The Court observes that both Parties thus clearly refer to their understanding that the task which they are jointly undertaking involves the materialization of the parallel of the existing maritime frontier, with such parallel understood to run through Boundary Marker No. 1.

In order to determine the starting-point of the maritime boundary, the Court has considered certain cartographic evidence presented by the Parties. The Court observes that Peru presents a number of official maps of Arica, dated 1965 and 1966, and of Chile, dated 1955, 1961 and 1963, published by the Instituto Geografico Militar de Chile, as well as an excerpt from Chilean Nautical Chart 101 of 1989. However, these materials largely focus on the location of the point “Concordia” on the coast and do not purport to depict any maritime boundary.

The Court similarly notes that a number of instances of Peruvian practice subsequent to 1968 relied upon by Chile are not relevant as they address the issue of the location of the Peru-Chile land boundary.

The only Chilean map referred to by Peru which appears to depict the maritime boundary along a parallel passing through Boundary Marker No. 1 is an excerpt from Chilean Nautical Chart 1111 of 1998. This map, however, confirms the agreement between the Parties of 1968-1969. The Court considers that it is unable to draw any inference from the 30-year delay in such cartographic depiction by Chile.

The evidence presented in relation to fishing and other maritime practice in the region does not contain sufficient detail to be useful in the present circumstances where the starting-points of the maritime boundary claimed by each of the Parties are separated by a mere 8 seconds of latitude, nor is this evidence legally significant.

The Court considers that the maritime boundary which the Parties intended to signal with the lighthouse arrangements was constituted by the parallel passing through Boundary Marker No. 1. Both Parties subsequently implemented the recommendations of the 1969 Act by building the lighthouses as agreed, thus signalling the parallel passing through Boundary Marker No. 1. The 1968-1969 lighthouse arrangements therefore serve as compelling evidence that the agreed maritime boundary follows the parallel that passes through Boundary Marker No. 1.

The Court is not called upon to take a position as to the location of Point Concordia, where the land frontier between the Parties starts. It notes that it could be possible for the aforementioned point not to coincide with the starting-point of the maritime boundary, as it was just defined. The Court observes, however, that such a situation would be the consequence of the agreements reached between the Parties.

The Court thus concludes that the starting-point of the maritime boundary between the Parties is the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line.

VI. The course of the maritime boundary from Point A

Having concluded that an agreed single maritime boundary exists between the Parties, and that that boundary starts at the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line, and continues for 80 nautical miles along that parallel, the Court will now determine the course of the maritime boundary from that point on.

While Chile has signed and ratified UNCLOS, Peru is not a party to this instrument. Both Parties claim 200-nautical-mile maritime entitlements. Neither Party claims an extended continental shelf in the area with which this case is concerned. Chile’s claim consists of a 12-nautical-mile territorial sea and an exclusive economic zone and continental shelf extending to 200 nautical miles from the coast. Peru claims a 200-nautical-mile “maritime domain”. Peru’s Agent formally declared on behalf of his Government that “[t]he term ‘maritime domain’ used in [Peru’s] Constitution is applied in a manner consistent with the maritime zones set out in the 1982 Convention”. The Court takes note of this declaration which expresses a formal undertaking by Peru.

The Court proceeds on the basis of the provisions of Articles 74, paragraph 1, and 83, paragraph 1, of UNCLOS which, as the Court has recognized, reflect customary international law

(Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 91, para. 167; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 674, para. 139). The texts of these provisions are identical, the only difference being that Article 74 refers to the exclusive economic zone and Article 83 to the continental shelf. They read as follows:

“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.”

The methodology which the Court usually employs in seeking an equitable solution involves three stages. In the first, it constructs a provisional equidistance line unless there are compelling reasons preventing that. At the second stage, it considers whether there are relevant circumstances which may call for an adjustment of that line to achieve an equitable result. At the third stage, the Court conducts a disproportionality test in which it assesses whether the effect of the line, as adjusted, is such that the Parties’ respective shares of the relevant area are markedly disproportionate to the lengths of their relevant coasts (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, pp. 101-103, paras. 115-122; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), pp. 695-696, paras. 190-193).

In the present case, Peru proposed that the three-step approach be followed in the delimitation of the maritime boundary between the two States. Peru makes the three following points. First, the relevant coasts and the relevant area within which the delimitation is to be effected are circumscribed by the coasts of each Party lying within 200 nautical miles of the starting-point of their land boundary. The construction of a provisional equidistance line within that area is a straightforward exercise. Secondly, there are no special circumstances calling for an adjustment of the provisional equidistance line and it therefore represents an equitable maritime delimitation: the resulting line effects an equal division of the Parties’ overlapping maritime entitlements and does not result in any undue encroachment on the projections of their respective coasts or any cut-off effect. Thirdly, the application of the element of proportionality as an ex post facto test confirms the equitable nature of the equidistance line.

Chile advanced no arguments on this matter. Its position throughout the proceedings was that the Parties had already delimited the whole maritime area in dispute, by agreement, in 1952, and that, accordingly, no maritime delimitation should be performed by the Court.

In the present case, the delimitation of the maritime area must begin at the endpoint of the agreed maritime boundary which the Court has determined is 80 nautical miles long (Point A). In practice, a number of delimitations begin not at the low-water line but at a point further seaward, as a result of a pre-existing agreement between the parties (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, pp. 332-333, para. 212; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, pp. 431-432, paras. 268-269; Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 130, para. 218). The situation the Court faces is, however, unusual in that the starting-point for the delimitation in this case is much further from the coast: 80 nautical miles from the closest point on the Chilean coast and about 45 nautical miles from the closest point on the Peruvian coast.

The usual methodology applied by the Court has the aim of achieving an equitable solution. In terms of that methodology, the Court now proceeds to the construction of a provisional equidistance line which starts at the endpoint of the existing maritime boundary (Point A).

In order to construct such a line, the Court first selects appropriate base points. In view of the location of Point A at a distance of 80 nautical miles from the coast along the parallel, the nearest initial base point on the Chilean coast will be situated near the starting-point of the maritime boundary between Chile and Peru, and on the Peruvian coast at a point where the arc of a circle with an 80-nautical-mile radius from Point A intersects with the Peruvian coast. For the purpose of constructing a provisional equidistance line, only those points on the Peruvian coast which are more than 80 nautical miles from Point A can be matched with points at an equivalent distance on the Chilean coast. The arc of a circle indicated on sketch-map No. 3 is used to identify the first Peruvian base point. Further base points for the construction of the provisional equidistance line have been selected as the most seaward coastal points “situated nearest to the area to be delimited” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 117). These base points are situated to the north-west of the initial base point on the Peruvian coast and south of the initial base point on the Chilean coast. No points on the Peruvian coast which lie to the south-east of that initial point on that coast can be matched with points on the Chilean coast, as they are all situated less than 80 nautical miles from Point A (see sketch-map No. 3: Construction of the provisional equidistance line).

The provisional equidistance line thus constructed runs in a general south-west direction, almost in a straight line, reflecting the smooth character of the two coasts, until it reaches the 200-nautical-mile limit measured from the Chilean baselines (Point B). Seaward of this point the 200-nautical-mile projections of the Parties’ coasts no longer overlap.

Before continuing the application of the usual methodology, the Court recalls that, in its second submission, Peru requested the Court to adjudge and declare that, beyond the point where the common maritime boundary ends, Peru is entitled to exercise sovereign rights over a maritime area lying out to a distance of 200 nautical miles from its baselines (see paragraphs 14 to 15 above). This claim is in relation to the area in a darker shade of blue in sketch-map No. 2 (see paragraph 22 above).

Peru contends that, in the maritime area beyond 200 nautical miles from the Chilean coast but within 200 nautical miles of its own coast, it has the rights which are accorded to a coastal State by general international law and that Chile has no such rights.

Chile in response contends that the 1952 Santiago Declaration establishes a single lateral limit for all maritime areas of its States parties whether actual or prospective, invoking the reference in paragraph II of the Declaration to “a minimum distance of 200 nautical miles”.

Since the Court has already concluded that the agreed boundary line along the parallel of latitude ends at 80 nautical miles from the coast, the foundation for the Chilean argument does not exist. Moreover, since the Court has decided that it will proceed with the delimitation of the overlapping maritime entitlements of the Parties by drawing an equidistance line, Peru’s second submission has become moot and the Court need not rule on it.

After Point B (see paragraph 186 above), the 200-nautical-mile limits of the Parties’ maritime entitlements delimited on the basis of equidistance no longer overlap. The Court observes that, from Point B, the 200-nautical-mile limit of Chile’s maritime entitlement runs in a generally southward direction. The final segment of the maritime boundary therefore proceeds from Point B to Point C, where the 200-nautical-mile limits of the Parties’ maritime entitlements intersect.

The Court must now determine whether there are any relevant circumstances calling for an adjustment of the provisional equidistance line, with the purpose, it must always be recalled, of achieving an equitable result. In this case, the equidistance line avoids any excessive amputation of either State’s maritime projections. No relevant circumstances appear in the record before the Court. There is accordingly no basis for adjusting the provisional equidistance line.

The next step is to determine whether the provisional equidistance line drawn from Point A produces a result which is significantly disproportionate in terms of the lengths of the relevant coasts and the division of the relevant area. The purpose is to assess the equitable nature of the result.

As the Court has already noted (see paragraph 183 above), the existence of an agreed line running for 80 nautical miles along the parallel of latitude presents it with an unusual situation. The existence of that line would make difficult, if not impossible, the calculation of the length of the relevant coasts and of the extent of the relevant area, were the usual mathematical calculation of the proportions to be undertaken. The Court recalls that in some instances in the past, because of the practical difficulties arising from the particular circumstances of the case, it has not undertaken that calculation. Having made that point in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, I.C.J. Reports 1985, p. 53, para. 74), it continued in these terms:

“if the Court turns its attention to the extent of the areas of shelf lying on each side of the line, it is possible for it to make a broad assessment of the equitableness of the result, without seeking to define the equities in arithmetical terms” (ibid., p. 55, para. 75).

More recently, the Court observed that, in this final phase of the delimitation process, the calculation does not purport to be precise and is approximate; “[t]he object of delimitation is to achieve a delimitation that is equitable, not an equal apportionment of maritime areas” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 100, para. 111; see similarly Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmarkv. Norway), Judgment, I.C.J. Reports 1993, pp. 66-67, para. 64, and p. 68, para. 67, referring to difficulties, as in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case, in defining with sufficient precision which coasts and which areas were to be treated as relevant; and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, pp. 433-448, paras. 272-307, where although the Court referred to the relevant coastlines and the relevant area, it made no precise calculation of them). In such cases, the Court engages in a broad assessment of disproportionality.

Given the unusual circumstances of this case, the Court follows the same approach here and concludes that no significant disproportion is evident, such as would call into question the equitable nature of the provisional equidistance line.

The Court accordingly concludes that the maritime boundary between the two Parties from Point A runs along the equidistance line to Point B, and then along the 200-nautical-mile limit measured from the Chilean baselines to Point C (see sketch-map No. 4: Course of the maritime boundary).

VII. Conclusion

The Court concludes that the maritime boundary between the Parties starts at the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line, and extends for 80 nautical miles along that parallel of latitude to Point A. From this point, the maritime boundary runs along the equidistance line to Point B, and then along the 200-nautical-mile limit measured from the Chilean baselines to Point C.

*

In view of the circumstances of the present case, the Court has defined the course of the maritime boundary between the Parties without determining the precise geographical co-ordinates. Moreover, the Court has not been asked to do so in the Parties’ final submissions. The Court expects that the Parties will determine these co-ordinates in accordance with the present Judgment, in the spirit of good neighbourliness.

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For these reasons,

The Court,

(1) By fifteen votes to one,

Decides that the starting-point of the single maritime boundary delimiting the respective maritime areas between the Republic of Peru and the Republic of Chile is the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line;

IN FAVOUR: President Tomka; Vice-President Sepulveda-Amor; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Xue, Donoghue, Sebutinde, Bhandari; Judges ad hoc Guillaume, Orrego Vicuna;

AGAINST: Judge Gaja;

(2) By fifteen votes to one,

Decides that the initial segment of the single maritime boundary follows the parallel of latitude passing through Boundary Marker No. 1 westward;

IN FAVOUR: President Tomka; Vice-President Sepulveda-Amor; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Xue, Donoghue, Gaja, Bhandari; Judges ad hoc Guillaume, Orrego Vicuna;

AGAINST: Judge Sebutinde;

(3) By ten votes to six,

Decides that this initial segment runs up to a point (Point A) situated at a distance of 80 nautical miles from the starting-point of the single maritime boundary;

IN FAVOUR: Vice-President Sepulveda-Amor; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Donoghue; Judge ad hoc Guillaume;

AGAINST: President Tomka; Judges Xue, Gaja, Sebutinde, Bhandari; Judge ad hoc Orrego Vicuna;

(4) By ten votes to six,

Decides that from Point A, the single maritime boundary shall continue south-westward along the line equidistant from the coasts of the Republic of Peru and the Republic of Chile, as measured from that point, until its intersection (at Point B) with the 200-nautical-mile limit measured from the baselines from which the territorial sea of the Republic of Chile is measured. From Point B, the single maritime boundary shall continue southward along that limit until it reaches the point of intersection (Point C) of the 200-nautical-mile limits measured from the baselines from which the territorial seas of the Republic of Peru and the Republic of Chile, respectively, are measured;

IN FAVOUR: Vice-President Sepulveda-Amor; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Donoghue; Judge ad hoc Guillaume;

AGAINST: President Tomka; Judges Xue, Gaja, Sebutinde, Bhandari; Judge ad hoc Orrego Vicuna;

(5) By fifteen votes to one,

Decides that, for the reasons given in paragraph 189 above, it does not need to rule on the second final submission of the Republic of Peru.

IN FAVOUR: President Tomka; Vice-President Sepulveda-Amor; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Xue, Donoghue, Gaja, Sebutinde, Bhandari; Judge ad hoc Guillaume;

AGAINST: Judge ad hoc Orrego Vicuna.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-seventh day of January, two thousand and fourteen, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Peru and the Government of the Republic of Chile, respectively.

(Signed) Peter TOMKA, President.

(Signed) Philippe COUVREUR, Registrar.

President TOMKA and Vice-President SEPULVEDA-AMOR append declarations to the Judgment of the Court; Judge OWADA appends a separate opinion to the Judgment of the Court; Judge SKOTNIKOV appends a declaration to the Judgment of the Court; Judges XUE, Gaja, BHANDARI and Judge ad hoc ORREGO VICUNA append a joint dissenting opinion to the Judgment of the Court; Judges DONOGHUE and GAJA append declarations to the Judgment of the Court; Judge SEBUTINDE appends a dissenting opinion to the Judgment of the Court; Judge ad hoc GUILLAUME appends a declaration to the Judgment of the Court; Judge ad hoc ORREGO VICUNA appends a separate, partly concurring and partly dissenting, opinion to the Judgment of the Court.

(Initialled) P. T.

(Initialled) Ph. C.

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