Corrigé
Corrected
CR20J2/3J
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2012
Public sitting
lteld on Frida7December 20J2, at JOa.m., at tite Peace Palace,
PresidentTomka presiding,
in tite case concerning Maritime Dispute
(Peru v. Chile)
VERBATIM RECORD
ANNÉE2012
Audience publique
tenue le vendredi 7décembre20J2, à JOheures, au Palais de la Paix,
sous la présidencede M. Tomka, président,
en l'affaire dDifférendmaritime
(Pérouc. Chili)
COMPTE RENDU -2-
Present: President Tomka
Vice-President Sepulveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Guillaume
Orrego Vicufia
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Sepulveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
MmesXue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Guillaume
Orrego Vicufia,jugesd hoc
M. Couvreur, greffier -4-
The Government of the Republic of Peru is represented by:
H.E. Mr. Allan Wagner, Ambassador, former Minister for Foreign Affairs, former Minister of
Defence, former Secretary-General of the Andean Community, Ambassador of Peru to the
Kingdom of the Netherlands,
as Agent;
H.E. Mr. Rafael Roncagliolo, Minister for Foreign Affairs,
as Special Envoy;
H.E. Mr. JoséAntonio Garcia Belaunde, Ambassador, former Minister for Foreign Affairs,
H.E. Mr. Jorge Chavez Soto, Ambassador, member of the Peruvian Delegation to the Third
UN Conference on the Law of the Sea, former Adviser of the Minister for Foreign Affairs on
Law of the Sea Matters,
as Co-Agents;
Mr. Rodman Bundy, avocat à la Cour d'appel de Paris, member of the New York Bar, Eversheds
LLP, Paris,
Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of International Law,
Oxford University, associate member of the Institut de Droit International,
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense,former Member
and former Chairman ofthe International Law Commission, associate member of the Institut de
Droit International,
Mr. Tullio Treves, Professorat the Faculty of Law, State University of Milan, former judge of the
International Tribunal for the Law of the Sea, Senior Consultant, Curtis, Mallet-Prevost, Colt
and Mosle, Milan,
Sir Michael Wood, K.C.M.G., member of the English Bar, Member of the International Law
Commission,
as Counsel and Advocates;
···--·····-··--r~Eôüatao··Ferrero~memoeroftliePermanei1.rcoürCofAr15itration;forlnérMlnlsfer1'or-Fol:elgn-=~=~-
··-----------Affafrs,Inember oHhe Peruvian Delegation to the Third UN Conference on the Law of the Sea,
Mr. Vicente Ugarte del Pino, former President of the Supreme Court of Justice, former President of
the Court of Justice of the Andean Community, former Dean of the Lima Bar Association,
Mr. Roberto Mac Lean, former judge of the Supreme Court of Justice, former member of the
Permanent Court of Arbitration,
H.E. Mr. Manuel Rodriguez Cuadros, Ambassador, former Minister for Foreign Affairs,
Ambassador ofPeru to Unesco,
as State Advocates; - 5-
Le Gouvernement de la Républiquedu Pérouest représenté par:
S. Exc. M. Allan Wagner, ambassadeur, ancien ministre des relations extérieures, ancien ministre
de la défense, ancien secrétaire généralde la Communauté andine, ambassadeur du Pérou
auprès du Royaume des Pays-Bas,
comme agent ;
S. Exc. M. Rafael Roncagliolo, ministre des relations extérieures,
comme envoyéspécial;
S. Exc. M. JoséAntonio Garcia Belaunde, ambassadeur, ancien ministre des relations extérieures,
S. Exc. M. Jorge Chavez Soto, ambassadeur, membre de la délégation péruvienne à la
troisième conférence des Nations Unies sur le droit de la mer, ancien conseiller du ministre des
relations extérieuressur les questions relatives au droit de la mer,
comme coagents ;
M. Rodman Bundy, avocat à la Cour d'appel de Paris, membre du barreau de New York, cabinet
Eversheds LLP, Paris,
M. Vaughan Lowe, Q.C., membre du barreau d'Angleterre, professeur émérite de droit
international à l'Universitéd'Oxford, membre associéde l'Institut de droit international,
M. Alain Pellet, professeur à l'Université Paris Ouest, Nanterre-La Défense, ancien membre et
ancien président de la Commission du droit international, membre associéde l'Institut de droit
international,
M. Tullio Treves, professeur à la facultéde droit de l'Universitéde Milan, ancien juge du Tribunal
international du droit de la mer, conseiller principal, cabinet Curtis, Mallet-Prevost, Colt et
Mosle, Milan,
sir Michael Wood, K.C.M.G, membre du barreau d'Angleterre, membre de la Commission du droit
international,
comme conseils et avocats ;
M. Eduardo Ferrero, membre de la Cour permanente d'arbitrage, ancien ministre des relations
extérieures, membre de la délégationpéruvienne à la troisième conférence des Nations Unies
surle droit de la mer,
M. Juan Vicente Ugarte del Pino, ancien présidentde la Cour suprêmede justice, ancien président
de la Cour de justice de la Communautéandine, ancien bâtonnier, barreau de Lima,
M. Roberto Mac Lean, ancien juge de la Cour suprêmede justice, ancien membre de la Cour
permanente d'arbitrage,
S. Exc. M. Manuel Rodriguez Cuadros, ambassadeur, ancien ministre des relations extérieures,
ambassadeur du Pérouauprèsde l'Unesco,
comme avocats de l'Etat ; - 6-
Minister-Counsellor Marisol Agiiero Colunga, LL.M., former Adviser of the Minister for Foreign
Affairs on Law of the Sea Matters, Co-ordinator of the Peruvian Delegation,
H.E. Mr. Gustavo Meza-Cuadra, MIPP, Ambassador, Adviser ofthe Ministry of Foreign Affairs on
Law of the Sea Matters,
Mr. Juan JoséRuda, member of the Permanent Court of Arbitration, Legal Adviser ofthe Ministry
ofForeign Affairs,
as Counsel;
Mr. Benjamin Samson, Researcher, Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,
Mr. Eran Sthoeger, LL.M., New York University School of Law,
as Assistant Counsel;
Mr. Carlos Enrique Gamarra, Vice Admirai (retired), Hydrographer, Adviser to the Office for Law
of the Sea of the Ministry of Foreign Affairs,
as Special Adviser;
Mr. Ramon Bahamonde, M.A., Advisory Office for the Law of the Sea ofthe Ministry of Foreign
Affairs,
1-t Mr. Alejandro DeustuFta,M.A., Advisory Office for the Law of the Sea of the Ministry of Foreign
Affairs,
Mr. Pablo Moscoso de la Cuba, LL.M., Advisory Office for the Law of the Sea of the Ministry of
Foreign Affairs,
as Legal Advisers;
Mr. Scott Edmonds, Cartographer, International Mapping,
Mr. Jaime Valdez, Lieutenant Commander (retired), National Cartographer of the Peruvian
Delegation,
····-------------·Mr:·Aquiles-Carcovich;-captain{retit
eô);-cartograp11ër;--·
Mr. Thomas Frogh, Cartographer, International Mapping,
as Technical Advisers;
Mr. Paul Duclos, Minister-Counsellor, LL.M., M.A., Advisory Office for the Law of the Sea of the
Ministryof. ForeignAffairs,
Mr. Alfredo Fortes, Counsellor, LL.M., Embassy ofPeru in the Kingdom ofthe Netherlands,
Mr. JoséAntonio Torrico, Counsellor, M.A., Embassy ofPeru in the Kingdom of the Netherlands,
Mr. CésarTalayera, First Secretary, M.Sc., Embassy ofPeru in the Kingdom of the Netherlands,
as Advisers; - 7-
Mme Marisol Agüero Colunga, LL.M., ministre-conseiller et ancien conseiller du ministre des
relations extérieures sur les questions relatives au droit de la mer, coordonnateur de la
délégationpéruvienne,
S. Exc. M. Gustavo Meza-Cuadra, MIPP, ambassadeur, conseiller du ministère des relations
extérieuressur les questions relatives au droit de la mer,
M. Juan JoséRuda, membre de la Cour permanente d'arbitrage, conseiller juridique du ministère
des relations extérieures,
comme conseils ;
M. Benjamin Samson, chercheur au Centre de droit international de Nanterre (CEDIN), Université
Paris Ouest, Nanterre-La Défense,
M. Bran Sthoeger, LL.M., facultéde droit de l'Universitéde New York,
comme conseils adjoints ;
Le vice-amiral (en retraite) Carlos Enrique Gamarra, hydrographe, conseiller auprès du bureau du
droit de la mer du ministère des relations extérieures,
comme conseiller spécial;
M. Ramon Bahamonde, M.A., bureau du droit de la mer du ministère des relations extérieures,
M. Alejandro Deustua, M.A., bureau du droit de la mer du ministère des relations extérieures,
M. Pablo Moscoso de la Cuba, LL.M., bureau du droit de la mer du ministère des relations
extérieures,
comme conseillers juridiques ;
M. Scott Edmonds, cartographe, International Mapping,
Le capitaine de corvette (en retraite) Jaime Vaidez, cartographe de la délégationpéruvienne,
Le capitaine de vaisseau (en retraite) Aquiles Carcovich, cartographe,
M. Thomas Frogh, cartographe, International Mapping,
comme conseillers techniques ;
M. Paul Duclos, ministre-conseiller, LL.M., M.A., bureau du droit de la mer du ministère des
relations extérieures,
M. Alfredo Fortes, conseiller, LL.M., ambassade du Pérouau Royaume des Pays-Bas,
M. JoséAntonio Torrico, conseiller, M.A., ambassade du Pérouau Royaume des Pays-Bas,
M. CésarTalavera, premier secrétaire,M.Sc., ambassade du Pérouau Royaume des Pays-Bas,
comme conseillers ; - 8 -
Ms Evelyn Campos Sanchez, Embassy of Peru in the Kingdom of the Netherlands,
Ph.D. candidate, Amsterdam Center for International Law, University of Amsterdam,
Ms Charis Tan, Advocate and Solicitor, Singapore, memberof the New York Bar, Solicitor,
England and Wales, EvershedsLP,
Mr. Raymundo Tullio Treves, Ph.D. candidate, Max Planck Résearch School for Successful
Disputes Settlement, Heidelberg,
as Assistants.
The Government of the Republic ofCitile is represented by:
H.E. Mr. Albert van Klaveren Stork, Ambassador, former Vice-Minister for Foreign Affairs,
Ministry of Foreign Affairs, Professorat the University ofChile,
as Agent;
H.E. Mr. Alfredo Moreno Charme, Minister for Foreign Affairs ofChile,
as National Authority;
H.E. Mr. Juan Martabit Scaff, Ambassador ofChile to the Kingdom ofthe Netherlands,
H.E. Ms Maria Teresa Infante Caffi, National Director ofFrontiers and Limits, Ministryn
Affairs,rofessor at the University of Chile, member of the Institut de droit international,
as Co-Agents;
Mr. Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and
Development, Geneva, and at the University of Paris II (Panthéon-Assas), member of the
Institut de droit international,
Mr. James R. Crawford, S.C., LL.D., F.B.A., Whewell Professor of International Law, University
of Cambridge, member ofthe Institut de droit international, Barrister, Matrix Chambers,
Mr. JanPaulsson, President of the International Council for Commercial Arbitration, President of
the Administrative Tribunal of the OECD, Freshfields Bruckhaus Deringer LLP,
·········~····--···:·--·id:k:Colson~-·A:ttorneyC"at;;;.Law;·:PattonBoggs:t;LP;Washingto ····C:··:·me···
.....- ·-··------·-· ___.ofCalifornia.and.the.Dilumbia,-----~---·-··--·--·······-·-····· --········
Mr. Luigi Condorelli, Professor of International Law, University of Florence,
Mr. GeorgiosPetrochilos, Avocat à la Cour and Advocate ofthe Greek Supreme Court, Freshfields
Bruckhaus DeringerLLP,
- ---~-------·------- -------------
Mr. Samuel Wordsworth, member of the English Bar, member of the Paris Bar, Essex Court
Chambers,
Mr. Claudio Grossman, Dean,R. Geraldson Professor of International Law, American University,
Washington College of Law,
as Counsel and Advocates; - 9-
Mme Evelyn Campos Sanchez, ambassade du Pérou au Royaume des Pays-Bas, doctorant à
l'Amsterdam Center for International Law, Université d'Amsterdam,
Mme Charis Tan, avocat et solicitor (Singapour), membre du barreau de New York, solicitor
(Angleterre et Pays de Galle), cabinet Eversheds LLP,
M. Raymundo Tullio Treves, doctorant à l'International Max Planck Research School, section
spécialiséedans le règlement des différends internationaux, Heidelberg,
comme assistants.
Le Gouvernement de la République du Chili est représenté par :
S. Exc. M. Albert van Klaveren Stork, ambassadeur, ancien vice-ministre des relations extérieures,
ministère des relations extérieures, professeur à l'Université du Chili,
comme agent ;
S. Exc. M. Alfredo Moreno Charme, ministre des relations extérieures du Chili,
comme membre du Gouvernement ;
S. Exc. M. Juan Martabit Scaff, ambassadeur du Chili auprès du Royaume des Pays-Bas,
S. Exc. Mme Maria Teresa Infante Caffi, directeur national, frontières et limites, ministère des
relations extérieures, professeur à l'Université du Chili, membre de l'Institut de droit
international,
comme coagents ;
M. Pierre-Marie Dupuy, professeur à l'Institut de hautes études internationales et du
développement de Genève et à l'Université Paris II (Panthéon-Assas), membre de l'Institut de
droit international,
M. James R. Crawford, S.C., LL.D., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, avocat,
Matrix Chambers,
M. Jan Paulsson, président du Conseil international pour l'arbitrage commercial, président du
Tribunal administratif de l'OCDE, cabinet Freshfields Bruckhaus Deringer LLP,
M. David A. Colson, avocat, cabinet Patton Boggs LLP, Washington D.C., membre des barreaux
de l'Etat de Californie et du district de Columbia,
M. Luigi Condorelli, professeur de droit international à l'Universitéde Florence,
M. Georgios Petrochilos, avocat à la Cour et à la Cour suprême grecque, cabinet Freshfields
Bruckhaus Deringer LLP,
M. Samuel Wordsworth, membre des barreaux d'Angleterre et de Paris, Essex Court Chambers,
M. Claudio Grossman, doyen, professeur titulaire de la Chaire R. Geraldson, American University,
facultéde droit de Washington,
comme conseils et avocats ; - 10-
H.E. Mr. Hernan Salinas, Ambassador, Legal Adviser, Ministry of Foreign Affairs, Professor,
Catholic University ofChile,
H.E. Mr. Luis Winter, Ambassador, Ministry,
Mr. Enrique Barros Bourie,University ofChile,
Mr. Julio Faùndez,r, University of Warwick,
Ms Ximena Fuentes Torrijo,University ofChile,
Mr. Claudio Troncoso Repetto,niversity ofChile,
Mr. Andres Jana,or, University ofChile,
Ms Mariana Durney, Legal Officer, Ministry ofForeign Affairs,
Mr. John Ranson, Legal Officer,ternational Law, Chilean Navy,
Mr. Ben Juratowitch, Solicitor admittedles, Freshfields Bruckhaus Deringer
LLP,
Mr. Motohiro Maeda, Solicitor admitted in England and Wales, Freshfields Bruckhaus Deringer
LLP,
Mr. Coalter G. Lathrop, Special Adviser, Sovereign Geographie, member of the North Carolina
Bar,
H.E. Mr. Luis Goycoolea, Ministryairs,
Mr. Antonio Correa Olbrich, Counsellor, Embassy ofChiletherlands,
Mr. Javier GorosteguiSecond Secretary, Embassy of Chile in the Kingdom of the
Netherlands,
Ms Katerlett, Solicitor admitted in England and Wales and in Queensland, Australia,
Ms Nienke Grossman, Assistantniversity of Baltimore, Maryland, member ofthe Bars
:. ~ ~:·:--:V:ir:g:!'l!i..._:•-::::::!-::il::::.:-:::::::==:==::::.:=:::.
Mr. Francisco Abriani, member of the Buenos Aires Bar,
Mr.aolo Palchetti, Associate Professor oflnternational Law, University ofMacerata,
as Advisers;
Mr. Julio Poblete, National Division ofFrontiers and Limits, Ministry of Foreign Affairs,
Ms Fiona Bloor, Kingdom Hydrographie Office,
Mr. Dick Gent, Marine Delimitation Ltd.,
as Technical Advisers. - 11-
S. Exc. M. Hernan Salinas, ambassadeur, conseiller juridique au ministère des relations extérieures,
professeur à l'Université catholique du Chili,
S. Exc. M. Luis Winter, ambassadeur, ministère des relations extérieures,
M. Enrique Barros Bourie, professeur à l'Université du Chili,
M. Julio Faùndez, professeur à l'Université de Warwick,
Mme Ximena Fuentes Torrijo, professeur à l'Université du Chili,
M. Claudio Troncoso Repetto, professeur à l'Université du Chili,
M. Andres Jana, professeur à l'Université du Chili,
Mme Mariana Durney, conseiller juridique au ministère des relations extérieures,
M. John Ranso nonseiller juridique, professeur de droit international, marine chilienne,
M. Ben Juratowitch, solicitor (Angleterre et pays de Galles), cabinet Freshfields Bruckhaus
Deringer LLP,
M. Motohiro Maeda, solicitor (Angleterre et pays de Galles), cabinet Freshfields Bruckhaus
Deringer LLP,
M. Coalter G. Lathrop, conseiller spécial, Sovereign Geographie, membre du barreau de Caroline
du Nord,
S. Exc. M. Luis Goycoolea, ministère des relations extérieures,
M. Antonio Correa Olbrich, conseiller à l'ambassade du Chili au Royaume des Pays-Bas,
M. Javier Gorostegui Obanoz, deuxième secrétaire de l'ambassade du Chili au Royaume des
Pays-Bas,
Mme Kate Parlett, solicitor (Angleterre et pays de Galles, et Queensland (Australie)),
Mme Nienke Grossman, professeur adjoint à l'Université de Baltimore, Maryland, membre des
barreaux de l'Etat de Virginie et du district de Columbia,
Mme Alexandra van der Meulen, avocat à la Cour et membre du barreau de l'Etat de New York,
M. Francisco Abriani, membre du barreau de Buenos Aires,
M. Paolo Palchetti, professeur associéde droit international à l'Université de Macerata,
comme conseillers ;
M. Julio Poblete, division nationale des frontières et des limites, ministère des relations extérieures,
Mme Fiona Bloor, services hydrographiques du Royaume-Uni,
M. Dick Gent, Marine Delimitation Ltd,
comme conseillers techniques. - 12-
The PRESIDENT: Good morning, please be seated. The sitting is now open. This morning
the Court will hear the continuationhe first round of oral argument of Chile.
1give the floor to Mr. David Colson. You have the floor, Sir.
Mr. COLSON:
PERU'S 1955 SUPREME RESOLUTION
1. Introduction
1.1. Thank you, Mr. President, Members of the Court. This morning Chile's presentation
will address evidenceof the practice implementing the all-purpose maritime boundary between
Chile and Peru. My task is to begin that discussion with a short presentation about Peru's 1955
Supreme Resolution1,and 1 will also comment briefly about the maps that have been presented as
evidence in this case. 1 will be followed by Professor Paulsson who will address the 1968-1969
Agreement and Hito No. 1 issues, and after that Mr.trochilos will conclude the morning by
addressing the evidence of the practice along the boundary parallel.
2. Peru's Supreme Resolution No. 23 of 1955
2.1. Sir Michael Wood took the Court through Peru's 1955 Supreme Resolution on Tuesday
morning rather quickly, emphasizing that inru's legal structure this Resolution is low on the
hierarchy of legal norms and it deals with a technical subjecf.Nonetheless, the Supreme
Resolution is the highest fonn of executive power, and the fact that it deals with a technical
-------~----------does-not-mean-that-this-Resolution-is-not-importanHo-thi -·--~as-eo
asto how Peru's zone is to be depicted, and it does notjust deal with the outer limit ofthat zone, as
was implied. The textis short and it is clear. And, in Chile's view, it clearly demonstrates Peru's
long-standing acknowledgment of the Chile-Peru maritime boundary, ~ botiQdary that is
all-purpose in nature and that follows a parallel of latitPeru, as you have heard, today
nonetheless denies the applicabilitythe 1955 Supreme Resolution to the Chile-Peru maritime
CMC, Vol. VAnn.170p.1025.
CR 2012/28pp.35-37para36-43 (Wood). - 13 -
boundary 3. If the Court will bear with me I would like to go back over the same text that
Sir Michael examined.
2.2. The fu11text is now coming up on the screen in Spanish, and in English and French
versions. I also refer you to tab 47 in your folders. The Court may wish to note severa! points.
2.3. First, the title. The reference is to Peru's 200-mile zone. There is no hint, there is no
caveat, there is no footnote, there is no asterisk that indicates that Peru's Supreme Resolution is
about some but not ali ofPeru's zone, or that it concerns some but not a11of its limits.
2.4. Second, the date. As the Court knows, the 1954 Agreement Relating to the Special
Maritime Frontier Zone, which refers to the "parallel which constitutes the maritime boundary",
4
was signed on 4 December 1954 • The Supreme Resolution was promulgated on 12 January 1955,
just over one month later.
2.5. Third, the purpose. As expressed in the chapeau, the purpose is to specizy how Peru's
zone is to be depicted. A direct lineage is mentioned between this Resolution, the 1947 Supreme
Decree and the Santiago Declaration. There is no hint here either that the Supreme Resolution is
not intended to apply to ali ofPeru's zone.
2.6. Fourth, paragraph one. This paragraph concerns the outer limit of Peru's zone. Peru
says this paragraph refers to the arcs-of-circles method and it therefore directs that the outer limit of
Peru's zone be depicted accordingly; Chile contests that interpretation. I will have more to say
about this in my presentation this afternoon, but the key point- the key point-is that the Court
does not need to resolve this difference. The question ofwhen Peru began to use the arcs-of-circles
method to determine the outer limit of its zone is largely irrelevant for the purposes of this case:
the reason that we are here is the lateral limit of the zone between Chile and Peru and that question
is addressed in paragraph 2.
2.7. Paragraph 2 provides that the said line, namely, the line of the outer limit, may not
extend beyond the parallel where the frontier of Peru reaches the sea and it refers to Article IV of
the Santiago Declaration inthat connection. This seems clear enough. No matter what technique is
3CR 2012/28, p. 37, para. 43 (Wood).
4
MP, Vol. II, Ann. 50. - 14-
used to determine the outer limit, or how far out from the coast the outer limit may extend, the
outer limit cannot reach beyond the boundary parallel.
2.8. Now, Sir Michael Wood said that there is no provision in this Resolution, no provision
in this particular paragraph of the Resolution that requires, as he said "that lines bad to be shown
along the parallels5• Literally it is true that these words do not appear in paragraph 2, but the
Resolution requires any depiction of the outer limit to stop at the parallel at the point at which the
frontier of Peru reaches the sea. And the clear purpose of such reference is to identify the northern
and southern sides of Peru's zone. Can it really be that this Resolution, which was for the purpose
of defining Peru's zone, does no more than to require that the outer limit of Peru's zone is meant to
bang in the air or sea, as you wish- with no lines connecting it back to Peru's coast?
2.9. The argument that this Resolution only concerns the outer limit is new and it is
unconvincing. It is inconceivable that aState would describe its 200-mile zone in this way. Peru's
other argument about paragraph 2 of this Resolution, which at least is consistent with the theory of
Peru's case as we understand it, is that Article IV does not apply to Chile, so, in Peru's case, this
paragraph from the 1955 Supreme Resolution, describing the limits of Peru's 200-nautical-mile
zone, does not address the southern Iimit of that zone- namely, the boundary with Chile.
2.1O.Whatever the argument, Peru therefore today is asking the Court to believe that in 1955
Peru went to the trouble to promulgate a Supreme Resolution for the purpose of specifying how
Peru's zone is to be depicted, but it chose to leave the entire southern side of that zone wide
open- and Peru did not- the Supreme Resolution did not- even make mention of the fact that
2.11. Sixth, Foreign Minister David Aguilar Cornejo signed the 1955 Supreme Resolution
together with the President. He, of course, had signed the 1954 Agreement Relating to the Special
Maritime Frontier Zoné and the Complementary Convention just five weeks earlier. And even
Peru admits, although in a somewhat convoluted way, that the 1954 Agreement Relating to the
Special Maritime Frontier Zone did and does in fact apply to Peru's southern Iimit- although
·-
5CR 2012/28, p.36,para.42 (Wood).
6MP, Vol. II, Ann. 50.
7
CMC, Vol. II, Ann. 163. - 15 -
8
Pern's case argues it isjust a provisional fisheries enforcement line • But Pern, today again, would
have the Court believe that somehow, when the Foreign Minister of Pern, who signed the 1955
Supreme Resolution, which Pern now says did not apply to Chile, he forgot about the 1954
Agreement Relating to the Special Maritime Frontier Zone that he had signed just shortly before.
2.12. The argument that Pern makes is unbelievable. ln early 1955, when Chile, Ecuador
and Pern were under diplomatie and political pressure- "hostility" was the word that was used by
9
Professor Lowe - from the United States and major maritime States about their claim, Pern
proudly passes a Supreme Resolution for the purpose of specifying how its zone is to be depicted.
Pern does so in very clear language. There is nothing here to suggest that the limits of this zone are
incomplete.
2.13. Furthermore, within a few months of the date of the 1955 Supreme Resolution, in
May 1955, the Congress of Pern approved the Santiago Declaration, and the Complementary
Convention and the 1954Agreement Relating to the Special Maritime Frontier Zone 10• Nowhere in
the record of that process is there any reference to the effect that Pern was Ieaving the southern
limit of its zone undefined.
2.14. We may also note that Peru's Foreign Ministry published this Supreme Resolution in a
compendium of law of the sea materials in 1971 and also asked that it be published in the United
Nations Legislative Series, which was done, and in neither case was there any mention that the
11
limits ofPern's 200-nautical-mile zone described therein were incomplete • The whole purpose of
this Resolution would be defeated if indeed it was to be applied and understood as Pern's counsel
claim today.
3. Dr. Garcia Sayan as witness
3.1. But we do not need to rely upon Pern's counsel because we have a prominent and
contemporary witness - Dr. Enrique Garcia Sayan- you have beard his name several times
already this week. We may recall that he was Peru's Foreign Minister in 1947. As Professor
8See RP, para. 2.81.
9
CR 2012/28, p. 18, para. 34 (Lowe).
10MP, Vol. II, Ann. 10.
11See CMC, Vol. IV, Ann. 164, pp. 990-991. - 16-
Crawford mentioned, he was the recipient of Chile's diplomatie Note formally notizying Peru of
Chile's 1947 Proclamation• He signed, along with President Bustamante y Rivero, Peru's 1947
13
Supreme Decree, declaringPeru's 200-mile zone • Dr. Garcia Sayân was Peru's leading law of
the sea specialist of the day, and as Peru explained at the start of our proceedings this week, he was
14
one ofthe "founding fathers" of the 200-mile z•nHe was a member ofPeru's delegation to the
First and Second United Nations Conferences on the Law of the Sea. He was later Secretary-
General of the Permanent Commission of the South Pacifie.
3.2. In March of 1955, shortly after the Supreme Resolution was promulgated,
Dr. Garcia Sayân published a small monograph. It is entitled, in English, ''Noteson the Maritime
Sovereigntyof Peru: Defense of the 200 miles". It is about 50 pages in length. A portion of the
original Spanish text found at Annex 266 of Chile's Counter-Memorial with selected paragraphs
translated into English. Dr.rcia Sayân published this monograph to defend and justizy Peru's
200-mile zone to the international community. It is a forceful presentation of Peru's position.
Within the frameworkof his much larger discussion, Dr. Garcia Sayân refers to the 1955 Supreme
Resolution, which had been promulgated just a few months before publicationis monograph.
The full paragraphin which this reference is made is now on the screen and the key paragraph is
highlighted in English translation. It is at tab 48 ofyour folders.
3.3. The Court will note that Dr. GarciaSayân accurately refers to the "parallels"-
plural- that limit Peru's maritime zone to the north and south. This is not a typographical error.
If Peru regarded the southern limit of its zone with Chile to be open or unresolved,
"----"--_""___ Dr_._Gar_çJ~tSay_ân_WoJ _and_hewhaudl1kve switsLo fHeunderstood-P-eru'-s-zone----
and what it included and what it did not. He knew that it was limited north and south by parallels
of latitude. And he said so. And we can say with confidence that if it was Peru's position in 1955
that Article IV did not apply to Chile, he would have said so and would have articulated
position. But he did not. He referred to two parallels.
1CMC, Vol. III, Ann. 52; and see CR 2012/30, p. 40, para. 2.6 (Crawford).
13
MP, Vol. II, Ann. 6, p. 27.
14
CR 2012/27, p. 18, para. 4 (Wagner). - 17-
3.4. But this is not al! that may be found in this 1955 monograph. The monograph begins
with a map that is now on the screen. A copy of this map is at Figure 4 of Chile's
Counter-Memorial and is at tab 49 ofyour folders. There is no doubt that on this map, Peru's zone
is limited to the north and south by parallels of latitude - and that the outer limit is determined by
the trace parallel technique. This is what the Foreign Minister of Peru who signed the
15
1947 Decree, and who, as Professor Treves told you on Monday , defended Peru's zone in Geneva
in 1958, thought about Peru's zone. This is what he put at the beginning of his monograph which
he published for the purpose of defending Peru's zone to the international community.
4. Maps: Peru's Supreme Decree No. 570 of 1957
16
4.1. Two years later, in 1957, Peru published another decree, Supreme Decree 570 • Again,
the full Spanish text is on the screen with the key paragraph highlighted in English. It is at tab 50
in your folders. This Decree required that maps published in Peru showing its boundaries be
approved by the Ministry of Foreign Affairs to ensure the correct depiction of the country's
boundaries. This is a rather unique law. ltself, it is evidence of the importance that Peru attached
to ensuring clarity of its nationallimits. If Peru believed that there was no maritime boundary with
Chile, it would have been the duty of the Foreign Ministry of Peru to ensure that no Chile-Peru
boundary was shown on any map that it approved.
4.2. But Chile has produced, in the record, maps approved by the Foreign Ministry pursuant
to this Decree which show both the Chile-Peru and Ecuador-Peru maritime boundaries; further, the
boundaries that are shown are parallels of latitude. Now Peru tried to refute the effect of the
Decree 570 evidence by referring to a subsequent Ministerial Resolution from 1961 17, and
18
Mr. Bundy repeated that argument on Tuesday • You can find this 1961 Resolution at tab 51 of
your folders and it is now also shown on the screen. As is clear from the text of this Resolution, ali
that 1961 Resolution did was to affirm that the Ministry's authorization is limited only to ensuring
"data that is directly related to the delimitation of Peru's bordering zones" is correct. The
15
CR 2012/27, p. 50, para. 23 (Treves).
16
MP, Vol. II, Ann. 11.
17RP, paras. 4.129-4.130, referring to RP, Vol. II, Ann. 9.
1CR 2012/28, p. 58, para. 17 (Bundy). - 18-
Resolution goes on with a disclaimer to the effect that Peru's Foreign Ministry was not responsible
for the "concepts and commentaries relating to the historical and cartographie material" in the
19
books containing the maps it approved • This means nothing more than what it says: namely, the
Ministry's stamp of approval concerned only the limits shown on the maps, not the concepts and
commentaries that might also be mentioned in the books in which those maps appeared.
4.3. 1 will close by mentioning just one of those books which is now represented on the
screen, and it is at tab 52 in your folders. This book was presented at figure 38 of Chile's
Counter-Memorial; it was approved by Peru's Foreign Ministry in 1982 and published in the same
year. It is an encyclopaedia for school children. The letter from the Foreign Ministry says "Peru's
international boundaries have been drawn in an acceptable way... ". And the map on page 20 ofthe
encyclopaedia shows the lateral international maritime boundaries of Peru with Ecuador and
Chile and, in the case of the southern boundary with Chile, the map even refers to the parallel of
Hito No. 1.
4.4. What is important is that there are maps published in Peru- yes by private parties-
but the limits of Peru shown on those maps are required to be approved by the Ministry of Foreign
Affairs ofPeru and were so approved. These maps show that the southern maritime limit ofPeru's
zone is a parallel of latitude of the land boundary terminus with Chile, demonstrating both that
there is a boundary and that the boundary is a parallel of latitude.
4.5. The parties to the Santiago Declaration did not annex a map to their treaty, giving
physical expression to theirwilt2°. Contrary to Peru's assertion,this does not mean that the map
----··-·--·---------------·----------------·-·---------------------------~----- ---------~-----------~---- -- --
---~--~~~---ey_iden ~ccaesjenJltahsi_snop valob.aTthiv~eobativevalu o f~he maps presentedi ~bey~C-h--
must be assessed in the light of Peru's Supreme Decree of 1957, requiring Foreign Ministry
approval of the boundaries depicted on them. Surely these maps are corroborative evidence
22
endorsing a conclusion that the Court may reach by means unconnected with these maps • Surely
this map evidence bearing the approval of the Foreign Ministry shows the attitude of Peru with
19RP, Vol. II, Ann. 9, p. 79.
2°Cf. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, para. 54.
21CR 2012/28, p. 58, paras. 16-18 (Bundy).
22Frontier Dispute (Burkina Faso!Republic of Mali), Judgment, I.C.J. Reports 1986, para. 56; Kasikili/Sedudu
Island (Botswana/Namibia), Judgment,J. Reports 1999, para. 87; and Frontier Dispute (Benin/Niger), Judgment,
I.C.J. Reports 2005, para. 138. - 19-
23
respect to its international boundaries • Surely these maps, published under the auspices of the
State, and in the case of this particular map to educate its children, have high probative value 24•
These maps carry an official imprimatur. They confirm Chile's case and squarely contradict the
argument that Peru makes before the Court.
Thank you, Mr. President, Members of the Court. That concludes my presentation. I ask
you to call upon Professor Paulsson.
The PRESIDENT: Thank you, Mr. Colson, and I give the floor to Professor Paulsson. You
have the floor, Sir.
Mr. PAULSSON:
AGREEMENTS OF 1968-1969 TO SIGNAL THE MARITIME BOUNDARY
1. Mr. President, Members of the Court, it is an honour for me to share the responsibility of
presenting Chile's case before your Court.
2. Yesterday you saw that the Agreements of 1952 and 1954 contain ail the elements that are
required for a proper resolution of this dispute. Now, Chile will show that this conclusion is
confirmed by the conduct of the two States during the half decade that followed the Santiago
Declaration.
3. This topic of subsequent conduct will be addressed by two speakers.
4. First, it will be my task to describe dealings between the two States at moments when their
respective officiais explicitly stated that they were acting in accordance with the agreed maritime
border.
5. Mr. Petrochilos will follow me, and speak of another type of conduct, namely conduct
concerning matters so plainly settled that the existence of the border was taken for granted.
6. My observations regarding the explicit application of an established boundary fall under
two headings: namely, the elaborate process which led to the agreement in 1968-1969 to provide
23Honduras Borders (Guatemala/Honduras), Award, 23 January 1933, United Nations, Reports of International
Arbitral Awards (RIAA), Vol. Il,1360.
24Dispute between Argentina and Chile concerning the Beagle ·Channel, Award, 18 February 1977, RIAA,
Vol. XXI, para. 128. -20-
better signalling for the boundary; and second, the role No~H1 as the reference point for the
maritime boundary. I expect, Mr. President, to finish in one hour.
1. Overview of the agreements of 1968-1969: confirmation of the
existing maritime boundary
7. Before I review sorne ofthe detail ofwhat happened in 1968-1969, here is the big picture:
8. Chile and Peru had for a number of years been concerned about illegal transgressions of
the border by fishing vessels. Mr. Petrochilos will be telling you more about this. I simply observe
that both Chile and Peru saw the need for measures to stop such transgressIn early 1968, an
agreement was reached to send official delegations from both States to the frontier area to find joint
solutions. They were successful. The end product was a formai document dated 22 August 1969,
which you can find at tab 22 of the day 1 folder. It was entitled "Act of the Chile-Peru Mixed
Commission in Charge of Verifying the Location of Hito No. 1 and Signalling the Maritime
26
Boundary" . The maritime boundary, or in the original, el limite maritimo. What more needs to
be said? This Commission had signalled the maritime boundary, not a possible boundary, or a
proposed boundary, or a provisional boundary, or a boundary for special purposes. There was no
reservation, there was no qualification, simply the task of ensuring the practical effects of a
border- an existing border.
9. It is remarkable that Peru's written pleadings say nothing about this Act. Even this week,
Peru spent only a few minutes on the 1968-1969 Agreement, and ali it could find to argue was that
terms such as "maritime frontier" and "maritime boundary" were "used indifferentlywhatever
-~~~~~~~ =:=_-_-_=-===-~-====~-=~=::=---=--== ···_~=-_-_=_::-------_----------------------------··---·--------·--·----
_______________t____ eans=-and.did-not-really-mean-very--much,-andaresomehow--to--be-
erstood-as-meaning-----------------------
27
something less than "a definitive, all-purpose maritime boundary"• The 1968-1969 episode
seems to be a significant source of trouble for Peru. Peru acts like a student who does not like the
difficult exam questions he is given, and instead starts to recite memorized answers to different
questions, more to his taste.
25MP, Vol. III, Ann. 68, p. 407, para. 3; CMC, Vol. III, Ann.73, p. 552, penultimate para.
26
CMC, Vol. Il, Ann. 6.
2CR 2012/28, p. 41, 55(Wood). - 21 -
1O. For example, Peru proposes, at paragraph 4.128 of its Memorial, that the Mixed
Commission was "not engaged in the drawing of a definitive and permanent international
boundary" 28• Well, no- but who ever said that inthe first place?
11. The delegates had been given, by their Govemments, an explicit task, I quote,
29
"materialicen el paralelo de la frontera maritima que se origina en el Hito nûmero uno" which
means "to materialize"- we might say in English "to give physical effect to the parallel of the
maritime frontier which originates at Hito No. 1 ". There is no difficulty here; the border was
already established.
12. Mr. President, Members of the Court, this important episode of an agreed confirmation
of an existing boundary obviously has legal significance.
13. Chile and Peru are not the only States which have confirmed an existing maritime
boundary in this matmer. Ecuador and Colombia confirmed the co-ordinates of the reference point
for their maritime boundary 37 years after concluding a delimitation agreement. Colombia and
Ecuador-also use, you recall, a parallel of latitude to divide their maritime zones. Their agreement
of 1975 provides that the boundary followed- I quote, and I would invite you to listen
carefully- "the line of the geographical parallel traversing the point at which the international
land frontier between Ecuador and Colombia reaches the sea" 30- a formulation which should
remind you in general ofthe four parallellines on the chart shown to you yesterday by the Agent of
Chile and should remind you in particular of the Santiago Declaration. Although the
Colombia-Ecuador agreement did not specify precise co-ordinates ofthe latitude ofthe boundary,
the parties respected the agreed parallel. In June this year, 2012, only then did the two States agree
on those precise co-ordinates. You will find the joint declaration of the two States, ifyou wish, at
tab 54. In the meanwhile, neither of these two States ever expressed doubt that their maritime
zones had already been fully delimited.
14. Allow me to recall your Judgment in Libya/Chad. Libya argued that a 1955 treaty
should not be accepted as having established a border. Yet a treaty of friendship entered into
28MP, para. 4.128.
29
/bid., Vol. II, Ann. 59, p. 334, first para.
3°CMC, Vol. II, Ann. 9, p. 65, Art. 1. -22-
11years later, in 1966, referred repeatedly to "the frontier," as though one existed. "Pay no
attention to this", Libya told the Court. And now 1 will quote from Libya's Memorial at
paragraph 5.540. This 1966 document
"contained no provision purporting to delimit the bounday ... ; it was preceded by no
boundary negotiation ... ; it was followed by no boundary negotiations to delimit or
demarcate a boundary" 31•
This Libyan argument sounds familiar, does it not? It sounds very much like what Peru is saying
today, as Peru tells you that the Mixed Commission's Act of 1969 is of no weight as a confirmation
of the 1952 Santiago Declaration. Weil, what did your Court answer Libya? Allow me to read
from paragraph 66 ofyour Judgment:
"The Treaty between Libya and Chad of2 March 1966, like the Treaty of 1955,
refers to friendship and neighbourly relations between the Parties, and deals with
frontier questions. Articles 1 and 2 mention 'the frontier' between the two countries,
with no suggestion of there being any uncertainty about it. Article 1 deals with arder
and security 'along the frontier' and Article 2 deals with the movement of people
living 'on each sideof the frontier'. Article 4 deals with frontier permits and Article 7
with frontier authorities. If a serious dispute had indeed existed regarding frontiers,
eleven years after the conclusion of the 1955 Treaty, one would expect it to have been
reflected in the 1966 Treaty." (Territorial Dispute (Libyan Arab Jamahiriya/Chad)
ICJ Reports 1994, p 35, para. 66.)
15. So, 1fear Peru has a serious problem. The confirmation we are looking at is much more
powerful than the confirmation in Libya/Chad. In our story the agreement of the Parties in
1968-1969 was on the materialization of the existing boundary itself, and not, as inLibya/Chad, the
implementation of general policies of co-operation in the frontier area. Moreover, the agreement in
our case was confirmed through an elaborate series of meetings as weil as official communications
Chile's Counter-Memorial and Chapter II, Sections 4 and 5 of Chile's Rejoinder. Allow me to give
youjust sorne ofthe details.
II. Chile and Pern agreed to signal the existing maritime boundary
16. The Parties first met in January 1968. ln the following weeks, they exchanged Notes
expressing their agreement to build posts or signs "at the point at which the common border
3Territorial Dispute (Libyan Arab Jamahiriya/Chad), Memorial ofLibya dated 26 Aug. 1991, para. 5.540. - 23-
32
reaches the sea, near [Hito No. 1]" • Peru gets nowhere when it insists that this communication
did not explicitly assert the Parties' intention to signal the existing maritime border of the parallel
ofHito No. 1, because, as I will easily be able to show you, the lighthouses were built precisely to
signal the maritime boundary following that very parallel of Hito No. 1. If, as Peru now claims,
33
"[T]he concern of the States was to signal a point on land" , presumably to keep ships from being
wrecked on land, you need only one lighthouse- not two.
17. Peru and Chile knew exactly what they were doing. When the Peruvian and Chilean
34
delegations met in the frontier area in April 1968, the delegates signed a document • You find it at
tab 17 of the day 1folder. This formai document describes their task, to give practical effect to the
35
parallel corresponding to the "geographical location" - the expression used- of Hito No. 1.
There was no issue about the unquestionable location ofthat Hito. In another Exchange ofNotes
in August that year, 1968, the Governments fully approved the delegates' proposai to use leading
36
marks that would trace a line to signal the parallel of the maritime frontier . That remained the
object of the exercise, and finally the Mixed Commission confirmed in its Act of 22 August 1969
that it had conducted field work to verify the location of Hito No. 1 and fix the location of the
lighthouses along its parallel.
18. This Mixed Commission, 1 might add, was composed of the heads of the boundary
departments of the foreign ministries as weil as serving and retired navy officers of both States.
Indeed, Peru's delegates were formally appointed by a supreme resolution 37•
III.Chile and Peru agreed to signal an all-purpose maritime boundary
19. The heads of the delegations were involved in the entire process, from the meeting in
January 1968 onward. If the Parties had intended, as Peru now claims, to sign a ''provisional
38 39 40
line" ,aline "for policing purposes" , or aline based on undefined "ad hoc arrangements " , the
3MP, Vol. III, Ann. 71, p. 422, first para.; MP, Vol. III, Ann. 72, p. 426, first para.
33
CR 2012/28, p. 41, para. 58 (Wood).
34
MP Vol. Il, Ann. 59.
3/bid.,p. 337, penultimate para.
3MP Vol. III, Ann. 74, p. 435, first para and Ann. 75, p. 439, second para.
37
CMC, Vo. IV, Ann. 165.
38
MP, para. 4.4. -24-
delegates and their Governments would have had ample opportunity to ask to amend the stated
objective- which was to signal the "maritime frontier" and the "maritime boundary". What the
Act of 1969 does record is that the Mixed Commission's tasks were the "[d]etermination and
implementation of the parallel that passes through [Hito No. 1]" and "[p]hysically to give effect to
the parallel by means oftwo points (one to the West and the other to the East of [Hito No. 1]) so
41
that they ... continue the alignment of the parallel" •
20. As this Court had occasion to remark in Indonesia/Malaysia, in such circumstances
States are expected to clarify the position 42• What Chile and Peru did was clear: to confirm their
intention to signal the maritime boundary in an unqualified and unambiguous manner.
IV. Diez Canseco incident of 1966
21. The 1968-1969 process makes even more sense if we consider what had been happening
in the immediately preceding years. In diplomatie correspondence prior to 1968, Peru had
repeatedly protested against the incursion of Chilean fishing vessels into "Peruvian waters" 43,
44 45
Peru's "territorial waters" and Peru's ')urisdictional waters" --expressions used by Peru. These
expressions would have been nonsensical if there had been no maritime boundary. There would
have been no basis for the agreement of 1968-1969 to signal the maritime boundary, if both sides
had not understood that an agreed boundary in fact existed.
22. This point is very weil illustrated by the so-called Diez Canseco incident of 1966. The
Diez Canseco was a corvette of the Peruvian navy which had pursued Chilean fishing vessels.
ofyour folder. This was not a small ship of the category, as Peru puts it, of"near-shore fishermen
encroaching on areas that were considered by fishing communities in the other State to belong to
39
MP, para. 4.4.
40
RP, para. 4.49.
41
CMC, Vol. II, Ann. 6, p. 37, para. 2.
42Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia!Malaysia), Judgment, I.C.J.
Reports 2002, p. 661, para. 72.
43CMC, Vol. III, Ann. 73, para. 552, first para.
44MP, Vol. III, Ann. 69, p. 411, first para.
45CMC, Vol. III, Ann. 77, p. 571. -25-
them" 46• The Diez Canseco was there for the defence of Peru's sovereign territory. It is not the
kind of vessel that goes unnoticed into the waters of a neighbouring State. But Peru denied that
there had been an illegal incursion and that may have been true. What is interesting is the way Peru
affrrmed its understanding of the boundary, as explained in a memorandum transmitted to Chile's
Ministry of Foreign Affairs at the time. You will find this memorandum at tab 56 ofyour folders.
This memorandum of explanation does two very significant things.
It affirms that a "frontier line" 47, lineafronteriza in Spanish, at sea dividing the Chilean and
Peruvian maritime zones. And it shows its conception of this linea fronteriza as following the
1
parallel of 18° 21 S, as can be objectively derived from the data provided in its memorandum. The
slide which is on your screens now shows the three positions of Diez Canseco as it moved in the
course of the day, as reported by Peru- now, just to be able to refer to them, they are here called
Points A, B and C at the top. Peru stated to Chile that Points A, B and C were 7 miles, 3 miles and
2 miles respectively to the north of the frontier tine, as indicated in this diagram. Of course, we
want to know what are the points to be found 7, 3, and 2 miles due south of A, Band C. Let us call
them A-prime, B-prime and C-prime, also shown on the screen. The lineafronteriza- and that is
Peru's expression- is the line which passes through these three points. The next slide on the
1
screen shows this tine in red. As you will see, this is a parallel of 18° 21 latitude south. Peru
48
criticizes Chile's submission that the Iine was only "implied" in the document. "Implied?" Well,
Peru was telling Chile that the Diez Canseco had [not] crossed the "frontier Iine" and gave
absolutely precise indications ofhow far south the commander of the vesse] would have to navigate
to do so.
23. And yet Peru now suggests, as you heard on Tuesday, that this incident "took place very
close inshore and not far from the Peru-Chile land boundary" 49, and the tenu "frontier Iine"-
lfneafronteriza- did not refer to "any international maritime boundary" 5• Well, what then did it
refer to? Land boundary? The words Uneafronteriza could have meant only one thing: the line of
46MP, para. 4.124.
47CMC, Vol. III, Ann. 75, pp. 559,561 and 562.
48RP, para. 8 and footnote Il.
49CR 2012/28, p. 39, para. 51 (Wood).
50
Ibid. -26-
the frontier at sea. Peru now tells the Court, as they said on Tuesday, that what it means is that
Peru "was fully entitled to enforce its laws in maritime areas that were undisputedly within its
jurisdiction, even in the absence of a maritime boundary agreement" 51• But that does not get us
anywhere. In 1966, when this incident occurred, Peru did not say that its Navy was acting in a
zone that would come to Peru in afitture delimitation. It did not even say, "We acted within our
waters". Peru said that the Diez Canseco had stayed north of an existing lineafronteriza.
V. The lighthouses did not signal the land boundary
24. A few words. Mr. President, about the function of the lighthouses. Forgive me if I
approach this subject in a slightly roundabout way. In 1968, the Secretary-General of the Peruvian
Ministry of Foreign Affairs happened to be Mr. Javier Pérezde Cuéllar. He expressly stated in a
Note of 5 August 1968 to Chile that Peru "approves in their entirety the tenns of the documents
signed on the Peruvian-Chilean border on 26 April 1968 by the representatives of both countries in
52
relation to the installation of leading marks to materialise the parallel of the maritime frontier" • In
the present proceedings, Peru took the initiative to seek out Ambassador Pérezde Cuéllarand ask
him to sign a declaration; which Peru has submitted as an appendix to its Repll 3. Meaning no
disrespect to Mr. Pérezde Cuéllar,I can only say that this idea bears ali the signs of the kind of
thing parties do when they lack a solid foundation for their position. Of course, we must recall
what the Court said in Nicaragua v. Honduras- at paragraph 244- about the limited weight of
54
affidavits sworn by aState official for the purpose of Iitigation asto earlier facts • In this instance,
to affirm Peru's new version ofhistory. But that is not the main problem with the affidavit. The
defect inthe affidavit is both in what it says and what it does not say.
25. What it says is that the only purpose of the 1968-1969 exercise was "for fishermen of
both countries to see from the sea the land bout1dary" 55• What an extraordinary statement- you
51
CR 2012/28, p. 39, para. 51 (Wood).
52
MP, Vol. II, Ann. 74, p. 435, first para.
5RP, Vol. II, App. B.
5Case conceming Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v.Honduras), I.C.J. Reports 200(!!),p. 659, para. 244.
5RP, Vol. II, App. 8, p. 24, third para. -27-
beard me correctly- to see the land boundary! There was, of course, no need for such a thing.
Not a single one of the many documents from the time - which 1have gone through - expresses
this as the objective. We are talking, after ali, about the passage of ships, not automobiles.
26. Peru explained this week that what Mr. Pérez de Cuéllar meant to say was that the
lighthouses "assist[ed] small fishing boats ... to locate themselves at sea ... by reference to a point
on land" 56• Weil, first, his affidavit does not say so. Second, as 1think l'Il be able to prove beyond
doubt, the lighthouses were intended to signal the Hito No. 1 parallel at sea, not an unspecified
point on land, for which a single lighthouse would have been sufficient.
27. In 1968-1969, the Parties agreed to construct "two leading marks with daylight and night
signalling" 57 in order to "signal the maritime boundary and physically give effect to the parallel that
58
passes through" Hito No. 1 • As the delegates recorded in April 1968, one of those marks, the
59
"front mark" or the mark at the shore, would be placed "in the surroundings of' Hito No. 1 • And
the Parties did construct these leading marks in the form of two towers with lights, which came into
operation in 1972. These towers appear on your screens now, as constructed by Chile and Peru,
plus another lighthouse rebuilt by Peru, three years later in 1975. The Chilean lighthouse has been
marked on large-scale charts of the frontier area as Faro Lim[trofe Erifilaci6n Concordia since
1973 60,thus indicating its role as a leading mark to be aligned with the other one to indicate the
boundary.
28. In nautical terminology, "leading marks", or marcas de enfilaci6n in Spanish, are aligned
to show the straight line on which the line is located and which the marks then designate. This is
important for understanding the function of the two lighthouses. These lighthouses are located on
the parallel of Hito No. 1 and signal only that parallel. Another important feature was the
extremely narrow bearn of Peru's lighthouse. If, as Peru now claims, its light was "to show
near-shore fishermen where the land boundary between Peru and Chile lay and whose coasts they
56
CR 2012/28, p. 41, para. 58 (Wood).
57
MP, Vol. II, Ann. 59, p. 336, para. 1.
58
CMC, Vol. II, Ann. 6, p. 35.
5MP, Vol. Il, Ann. 59, p. 336, para. 1.
60/bid., Vol. IV, figs. 5.19 and 5.23. -28-
were alongs,dthis narrow range of visibility would have severely Iimited its usefhlness.
Peru's light is specifically designed to be invisible to mariners, except when they are very close to
the maritime boundary parallel, so that they can easilyl. The obvious purpose
of the Peruvian light is reinforced by the Chilean lighthouse, which is nowhere near the land
boundary line, and which aids the near-coast fishermen to identizy the course of the maritime
boundary.o, the Chilean lighthouse functions together with the Peruvian Iighthouse; when
mariners can align the two, they know that they are on the paralleland
nowhere else.
29. I need to demonstrate this on the screen. In the sketch-map you now see, you will see
two thingA bird's eye view showing a hypothetical position at sea and,
elevation view, showing what the mariner would see from that position. At position one on your
screens, the vesselweil south of the maritime boundary, the mariner would not be able to
see the Peruvian light due to its very narrow visible arc. Next on your screens, as the mariner
moves north, toward the maritime boundary, at position two, the Iight on the
to become visible, but the two lights are visible, not quite aligned, and the mariner would therefore
know that he is still a little way away from the boundary parallel. Lastly, at position three on the
red Iine, the mariner can observe, you see, that the lighthouses are aligned and
on the parallel of the maritThese three slides may be found at tab 59 of your
folders.
30. Trying to minimize the significance of the agreement of 1968-1969, Peru has suggested
---~----~~ ~--~-~--····-----------··--·-··-····--·-·--·---·
~~-~~=--~~=-~:===iilai=it-=-w ,a,s=~:~ Ql~e-hcowa=~2na,:---1es-1i
consequently, that the tine signalled by the lighthouses "represented a limited, and ad hoc, solution
63
to a very specifie problem within the 15-mile range misrepresentation of
the function of the lighthouses, and with the explanations I have just given you, you can see why.
The range lights explains that they were intended to help fishermen in the area within 12 nautical
milesf the coast, where there was nAlthough it would normally be easy for
6RP, para. 4.28.
62
/bid., para. 4.27.
6MP, para. 4.128. -29-
mariners to locate themselves near the coast by reference to landmarks, the flat and featureless
terrain in this area made it difficult for coastal fishing vessels to identifYthe maritime boundary -
hence the two lighthouses.
31. Incidentally, other similar systems have been used to signal international maritime
boundaries, such as that between Turkey and the Soviet Union, who agreed in 1980 to define the
64
sea boundary line with two leading marks and a buoy in the sea • The lighthouses we are
interested in in this case operated for nearly three decades until the Peruvian lighthouse was
65
destroyed by an earthquake in 2001. Chile requested Peru to rebuild it , but Peru has not.
32. As for what the statement signed by Mr. Pérezde Cuéllardid not say, it avoided the
numerous official references, which I have been quoting for half an hour now, acknowledging the
maritime boundary parallel. In particular, the affidavit omits any mention ofthe Peruvian Note of
5 August 1968, which you can see on your screen and you will also find in your tab 60. The Note
was signed by Mr. Pérez de Cuéllar oh behalf of his Foreign Minister. It expressed formai
approval of the building of the two towers for the purpose of signalling "the parallel of the
66
maritime frontier" . Needless to say, this document says precisely nothing about the need to
indicate the land boundary.
I shall now, Mr. President, turn to my second topic which concerns the matter ofHito No. 1,
which Peru has given unmerited prominence.
HITONO.l
1. Introduction
1. In 1930, Peru and Chile recorded that they were locating Hito No. 1 on the orilla del
mar 67,which is "seashore" in English, "littoral" in French.
64Protocoi-Description of the Course of the Soviet-Turkish Sea Boundary Line between the Territorial Seas of the
Union of Soviet Socialist Republics and the Republic of Turkey in the Black Sea, signed on Il September 1980 in
Tbilisi, English translation iJ. ICharney and L. M. Alexander, International Maritime Boundaries, 1991, Vol. II,
p. 1687.
65
CMC, Vol. III, Ann. 100, p. 673.
66MP, Vol. III, Ann. 74, p. 435, first paragraph.
61Jbid.,Vol. Il, Ann. 54, p. 309. - 30-
2. A fundamental and decisive building block in resolving the present case, Mr. President,
canbe derived from one single observation about Hito No. 1. It is this: there is no controversy
about the location and co-ordinates 1. That is really ali you need to know.
3. And here is why. The Note signedPérezde Cuéllaron 5 August 1968 approved
the proposai,ust saw it, to signal the existing maritime-frontier parallel and confirmed, for that
purpose, the Mixed Commission wouldthe position of HitThat is just what the
69
Commission did, as it formally reported one year the two alignment lighthouses
were installed, and signalled the parallel for 30 years. During ali those years, Peru
never raised any doubts asto the existence or course of the maritime boundary.
4. Todayeru argues that "the Parties could not have agreed a maritime boundary along the
parallel latitude passing through Hsimply because the parallel "does not reach the
71
sea atoint Concordia, whichsays Peru- "the land boundary ter•On Peru's
case, a new maritime boundary must start from Point 266, a point unilaterally declared by Peru
72
three years before its applicatio. to this Court
5. Peru seems to have developed an uncontrolled enthusiasm for creating complications
where there had been none for half a century. Letthe obfuscations, and focus on seven
plain propositions which Ielieve can be denied.
(i) In 1929, the two States agreed to a land boundaryhas neverbeen in
question.
(ii) In 1930, a Mixed Commission "determined ,as required under the 1929
------··---~---··-~.~"-~-·----~·-·--·~····-···-~···--···---
•-:-~=~ ~:~:=~=-=-==~==-=~=---=: -A8g0~_~h~imt~·-st~:---w-it i ~=SD~markers
(iii) The Parties agreed to place the most seaward of these markers, Hito No. 1, at a short
76
distance from the water, to avoid its destr•ction by theent here is a
6MP,Vol. II, Ann. 74, p. 435,first and second paras.
6CMC, Vol. H,Ann. 6.
70
RP, para.2.88.
7Jbid.,para.2.79.
7MP, Vol. H,Ann. 23, p. 115.
73
CMC, Vol. IV,Ann. 169,p. 1014.
7MP,Vol. H,Ann. 45, p. 236, Art. 3.
7Ibid., Ann. 55. - 31 -
sandy shore, frequently submerged under waves and tides. And the coastline is unstable
overtime.
(iv) If one were to compare, on the one band, the proposition that the land and sea boundaries
should, ifnecessary, be connected by a straight westward line from Hito No. 1 and, on the
other hand, Peru's position today, that the land boundary must be completed by a short
line which dips south-west from Hito No. 1 until it reaches the water's edge, the
difference between the two would be a contested area perhaps enough to contain a football
field, but you would have to know that part of that field would regularly be submerged by
the rising tide.
(v) This theoretical disagreement is acknowledged by Peru to be "a non-existing dispute" 77 -
that is from Penl's second Memorial, paragraph 15. This issue is unlikely ever to arise as
a substantive matter.
(vi) It follows that the supposed question of this little plot of sand has arisen in this case only
as what in English is known as a red herring, or une fausse piste in French, to dress up a
non-problem as though it creates serions difficulties of principle. There is no problem,
legal or logical.
(vii) As the name of this case indicates, the Court is not seised with the task of deciding any
matters regarding the two States' land boundary.
6. Given these seven simple propositions, Chile is left with no hesitation in confidently
asserting that the maritime boundary is what the two States agreed to in 1952, as confirmed
thereafter.
7. This leaves us with the task of disposing of the alleged problems Peru has laboured to
derive from Hito No. 1.
II. Chile and Peru consensually determined Hito No. 1 as the reference
point for their maritime boundary
8. Peru argues that the last steps of the land boundary were never established, and that this
supposedly unresolved matter is fatal to Chile's position, because "the land dominates the sea" 78
76MP, Vol. III, Ann. 87,505, last para.
77
RP, para. 15. -32-
and the Parties could not possibly have agreed to a maritime boundary without first having agreed
to the point at which the land boundary ultimately reaches the water.
9. But Peru's problem is purely imaginary. Your recognition of the existing maritime
boundary would leave no unresolved issues save if Peru were astonishingly to make an
international claim of such a small matter, and assuming moreover that the matter could not be
accommodated by neighbourly agreement. But even if we were to suppose that such a trivial point
ultimately had to be settled by an international legal process in sorne competent forum, there are
two possible outcomes: A, the land boundary Iine from Hito No. 1 goes straight westward into the
sea or, B, it dips south-westward for a very short distance. Neither ofthese hypotheses creates any
difficulty for the maritime boundary.
1O.With respect to hypothesis A, straight westward, even Peru cannot say that there would
be any legal or practical difficulty. It is only hypothesis B, namely, that the land boundary Iine
should move seaward from Hito No. 1 in a south-westerly direction, which Ieads to Peru's
supposed problem. Peru says that it is impossible for a maritime boundary to start at a point other
than the precise intersection of the land boundary and the Iow-water Iine. It would be unacceptable
for Peru to find itself with a segment, however tiny, of "dry coast"- meaning a coast having no
seaward projection at ali. When I say "tiny"- on the basis of the low-water Iine as ascertained
79
from Peru's Iarge-scale nautical chart in accordance with UNCLOS , this "dry coast" is
80
approximately 46 m • Peru told you that the maritime boundary- I quote from the transcript
"is seriously put into question by the fact that the Iine ... asserted by Chile does not start from the
~------~--- - -~-- -~~- ·-·-·--------------------·-------~--------~------
~~==~==~~:p_ûjnE:Wii~f.e~~iii~~~;~d~~bm;~d~cy~~;~s=th~~;~~~~~~-=Yetsince-1952,-the-two-States,-acting-through---
many governments, presidents, ministers, legislators, concluding a multitude of formai
confirmations, were, it seems, completely mistaken: their agreement is said to be an impossibility.
7North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany!Netherlands),Judgment, I.C.J Reports 1969, p. 3, para. 96, quoted at MP, para. 3.5.
79
CMC, Vol. VI, fig. 24. UNCLOS Art. 5 reads: "Except where otherwise provided in this Convention, the
normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on
large-scale charts officially recognized by the coastal State."
80
RC, para. 2.179.
81
CR 2012/29, p. 35, para. 2 (Bundy). - 33-
11. The answer to this supposed problem is simply that Peru is wrong. The practice of States
and decisions of international tribunats confirm that land and sea boundaries are not required,
legally or otherwise, to meet at a point of the physicallow-water line.
Chile and Pern determined the reference point with full knowledge
of the location ofHito No. 1
12. The examination of the practice of States needs to go no further thau to consider the
practice of Peru and Chile themselves. As we have seen, the Parties consensually determined Hito
No. 1 as the reference point for the latitude of the maritime boundary, obviously in full knowledge
of the position of Hito No. 1 in relation to the low-water line. In April 1968, the delegates
submitted their proposai for signalling the maritime frontier parallel on the basis of their field
work 82• In August 1969, the Mixed Commission concluded further field work to verif'ythe location
83
ofHito No. 1 and fix the location ofthe two alignment lighthouses • No concerns were raised in
this entire process asto the fact that Hito No. 1 was to be found at a slight distance from the water.
No suggestion was made that the Parties should use a different point as the reference point for the
parallel ofthe maritime frontier.
13. The delegates were, of course, aware of the demarcation work back in 1930. Their
document of 26 April 1968 referred to the Act signed in August 1930, where the location and
84
characteristics of each hito were recorded . Let us be precise. The Mixed Boundary Commission
of 1929-1930 followed the identical sets of instructions issued by the Parties in April 1930 85 and
agreed to place that boundary marker, Hito No. 1, at a point on the "seashore"- orilla del mar
86
with precise astronomical co-ordinates • Given the impact of frequent heavy swells, earthquakes
and tsunamis, as weil as the loose-surface geomorphology of the area near the water line, Hito
No. 1 bad to be built at a stable location. The short distance between Hito No. 1 and the low-water
line was of no significance to the Parties. They recorded the co-ordinates of Hito No. 1 and no
further point closer to the sea. The same instructions of April 1930 also confirmed that the
82MP, Vol. II, Ann. 59, p. 336, second para.
83CMC, Vol. II, Ann. 6, p. 35.
84
MP, Vol. II, Ann. 59, p. 337, penultimate para.
85
MP, Vol. III, Ann. 87.
86MP Vol. II, Ann. 54, p. 309, second para. - 34-
intersection of the boundary arc with the seashore was the starting-point of the land boundary
87
line • As Hito No. 1 is the most seaward determined point of the land boundary with agreed
co-ordinates, located on the seashore, it was reasonable to adopt this boundary marker as the
reference point within the meaningof Article IV of the Santiago Declaration, namely the point at
which the land boundary reaches the sea8•The Parties never referred to a point on the low-water
line for the purpose of marking the course of the maritime boundary parallel. Why would they?
The stable point of Hito No. 1 was what they needed-and al! they needed.
14. Until Peru began preparing for this case, it had never complained that the maritime
boundary was not properly connected to the land boundary. lts State practice confirms this. An
Atlas published by the Office of the President in 197a report issued by the National Institute of
90
Statistics and Information in 200,a yearbook on hydrocarbons issued by the Ministry of Energy
and Mines in 2000 91and a 2001 Law defining the administrative boundaries of the southernmost
92
province of Tacna ali treated Hito No. 1 as the southernmost point of Peru's land territory or of
Peru's coastline. This signified that Peru did not own any piece of land in the area south of the
parallel ofHito No. 1. This understanding has been shared by Peruvian writers. It was in 1961 that
Mr. Wagner de Reyna, one time "Director of Frontiers and Geographie Studies" of the Ministry of
Foreign Affairs of Peru, published a monograph stating that the land boundary line between Chile
and Peru ends "at a boundary marker (Concordia)[ ] which is located at 18° 21'03" S, which is the
93
southernmost point ofPeru" •
---------·------ -~-:---.-=.=nçiïïternationat=taw~iJermits=tl -----i--s-e:orllito=:No~:~Ias:tïie=-~··
~~-----------·-------reference-point-ror-the-maritime-bouudary-----------------·-·-·--
15. The practice of Chile and Peru is not unique. In Guyana v. Suriname, the UNCLOS
tribunal accepted that the parties had chosen a fixed point on dry land as the reference point for the
8MP, Vol. III, Ann. 87, p: 505, third para.
8/bid., Vol. H, Ann. 47, p. 261, Art. IV.
89
CMC, Vol. IV, Ann. 169, p. 1015.
90
/bid.Ann. 186, p. 1136.
9/bid.Ann. 190, p. 1154.
9/bid.Ann. 191, p. 1157.
93
RC, Vol. Ill, Ann. 186, p. 1251. -35-
course of the maritime boundary. There was no agreed land boundary terminus between Guyana
and Suriname, and the reference point was not even on the land boundary line. The Tribunal still
acknowledged the starting-point of the maritime boundary as the intersection of the low-water line
with the line running from the fixed point on land which the two States had agreed would form
their maritime boundary 9•
16. Other States have also agreed to determine the course of their maritime boundaries by
reference to a point on dry land, and I will refer to sorne examples without, I promise, going into
details. The relevant agreements are publicly available, and extracts, together with sketch-maps
depicting boundaries, are at tabs 62-68 of your folders. As you will see, in. many of these
examples, the land and maritime boundary lines do not meet at the low-water tine or its equivalent
at a river mouth. In Peru's theory, these examples, one supposes, are legal anomalies that would
render existing maritime boundary agreements invalid, because for sorne reason States are not
legally permitted to make such treaties. In reality, such supposed anomalies havè not resulted in
any disputes or revisions ofboundary !ines.
17. Such a reference point may be unrelated to the land boundary, as in Guyana v. Suriname.
Another example is Brazil-Uruguay. As you can see on your screens- tab 62- the maritime
boundary between these two States follows a loxodrome drawn from a lighthouse. The boundary
95
starts at a point where this line enters the Atlantic Ocean at the mouth of the River Chui • Here,
the agreed reference point for determining the course of the maritime boundary is a lighthouse,
96
which is not connected to the land boundary • The next example is Guinea-Bissau and Senegal.
Their maritime boundary follows a straight line starting from- I quote from the agreement- the
"intersection of the prolongation of the land frontier and the low-water mark, represented for that
purpose by the Cape Roxo lighthouse'm. The slide on your screens, tab 63, shows that this
94Guyana v. Suriname, Award, Permanent Court of Arbitration, 17 Sept. 2007, para. 308.
95See Exchange of Notes constituting an agreement on the definitive demarcation of the sea outlet of the River
Chui and the lateral maritime border, signed at Montevideo onuly 1972, 1120 United Nations, Treaty Series (UNTS)
133; CMC, Vol. II, Ann. 7, p. 53, para. 2.
96See the protocol of 22 April 1853 between Brazil and Uruguay, quoted in part in the United States Department
of State, International Boundary Series No. 170: Brazil-Uruguay (1976), available at http://www.law.fsu.edu/collection/
limitsinseas/IBS 170.pdf, p. 3
97Exchange of letters between France and Portugal, 26 April 1960, English translation of the quoted part in
Arbitral Award of31 July 1989 (Guinea-Bissazt v. Senegal), J.C.J.Reports 1991, p. 57, para. 12. - 36-
98
maritime boundary, as weil as the land boundary ending at the southernmost dune of Cape Roxo •
The low-water line fluctuates, Members of the Court, but a lighthouse stays where it is. The
location ofthe lighthouse is, again, unrelated to the land boundary. And so, the intersection ofthe
prolongation of the land frontier and the low-water mark does not coïncide with the intersection of
the Iinedrawn from the lighthouse and the Iow-water mark, and so a short "dry coast" is created, as
shown on the slide, which does not have maritime projections.
18. Many States have also used the most seaward demarcated point oftheir land boundary as
the starting-pointof the maritime boundary line without worrying about the fact that it is not on the
water's edge. For example, the maritime boundary between Colombia and Panama in the
99
Caribbean starts from "the point at which the international land frontier meets the sea" namely,
100
Boundary Marker No. 1, on the top of Cape Tiburon at an altitude of 81 m above the sea , as
shown on the screen. [This slide is also found at tab 64.] On the Pacifie side, the next slide, the
maritime boundary starts from Boundary Marker No. 14 on the coast, placed at an altitude of
26 m 10• The next example is Poland-Germany: their maritime boundary is now shown on screen
in red- you will also find this at tab 65. The maritime boundary starts at Point A on dry land,
where that boundary meets the land boundary Iine10• You will also see two alignment beacons
which indicate the direction of the maritime boundary. Next is Italy-Slovenia: as shown on your
screen, tab 66, the maritime boundary between the two States is defined as a line starting at
98See Convention between France and Portugal for the Delimitation of the French and Portuguese Possessions in
::-::~:~•~~~==~==~===~Yf..estAfrlf!b:-êigt1J<<LQnJ2:M11X:l:8-Sf!;:Art:=t:English:Jranslation:in:theUnited··:states:Dejfai'tmerïtof:State,7ïitël'iialicinaL::=::::::::::::::::
-------~--- Boundaries Series No. 141- Guinea Bis.s:.@_(~ortuguese_-_Guinea)=-SenegaLBou --d--.~-y-_--1--2
http://www.law.fsu.edu/library/ collectionllimitsinseas/IBS 14l.O.f, pp. 3 and 1
99Treaty on the delimitation of marine and submarine areas and related matters between the Republic of Panama
and the Republic of Colombia, signed at Cartagena on 20 November 1976, 1074 UNTS 217, Art. I.A.1.
1See Exchange of Notes between the Governments of Colombia and Panama constituting an agreement for the
delimitation the boundary between the two countries in execution of the treaty of 20 August 1924, signed at Panama
on 17 June 1938, 193LNTS 231, p. 245, penultimate para.
1Treaty on the delimitation of marine and submarine areas and related matters between the Republic of Panama
and the Republic of Colombia, signed at Cartagena on 20 November 1976, 1074 UNArt.I.B.1; Exchange of
Notes between the Governments of Colombia and Panama constituting an agreement for the delimitation of the boundary
between the two countries in execution of the treaty of 20 August 1924, signed at Panama on 17 June 1938,
193LNTS 231, p. 245, last para.
1See Treaty between the German Democratie Republic and the Polish People's Republic on the delimitation of
the sea areas in the Oder Bay, signed at Berlin on 22 May 1989, 1547 UNTS 277, Art. 1; Agreement between the Polish
Republic and the German Democratie Republic concerning the demarcation of the established and existing
Polish-German State frontier, signed at Zgorzelec on 6 July 1950, 319 UNTS 93, Arts 1 and 2; Instrument confirming the
demarcationof the State frontier between Poland and Germany, signed at Frankfurt on the Oder on 27 January 1951,
319 UNTS93. - 37-
Primary Mark No. 1, a boundary marker where the land boundary terminates 10• Yet again, the
maritime boundary between Jordan and Israel begins at "Boundary Pillar 0 on the seashore" 104, as
shown as BPOon your screens, tab 67,- the co-ordinates of this Boundary Pillar 0 is identical to
105
the Boundary Marker OOOIJ recorded in their land boundary agreement •
19. To summarize, in these examples the land boundary tine is set out up to the most seaward
boundary marker, but short of the low-water tine. This creates a small discontinuity between that
land boundary marker and the low-water tine. The situation is similar to a "dry coast" in the sense
that there is no agreement that would allocate, as Peru suggests, every grain of sand clown to the
low-water tine and the corresponding maritime zone generated by each grain. No dispute is known
to have arisen from the situation which, according to Peru, would be unacceptable.
20. One final example is a much larger anomaly. The next slide on your screen, tab 68,
shows the land and maritime boundaries between Angola and Namibia. It is the same one, tluee
times. The land boundary is the tine drawn equidistant from both banks of the Kunene River,
106
starting at its mouth , white the maritime boundary follows the parallel of latitude 17° 15'S,
107
starting from the intersection of that parallel and the basetine • The land boundary terminus
changes over the years and there is bound to be a disjuncture between this terminus and the fixed
starting-point of the maritime boundary. What you see are three sketch-maps showing different
configurations of the river mouth, as they were found to exist between 2004 and 2012. Each
sketch-map also depicts the land and maritime boundary tines. The land boundary terminus has
10See Treaty between the Italian Republic and the Socialist Federal Republic of Yugoslavia on the delimitation
of the frontier for the part not indicated as such in the Peace Treaty of 10 February 1947 (with annexes, exchange of
Ietters and final act), signed at Osimo, Ancona, on 10November 1975, 1466 UNTS25, Anns. I and III.
104
Maritime Boundary Agreement between the Government of the State of Israel and the Government of the
Hashemite Kingdom of Jordan, signed at Aqaba on 18 January 1996, 2043 UNTS241, Art. 1(1); Document entitled
"Jordan Israel Boundary Commission: Formai Approval and Adoption of the Coordinates of the International Maritime
Boundary Line in the Gulf of Aqaba", signed on 29 December 1998, 2042 UNTS439, p. 449, Sec. 3.7.
10See Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (with annexes, agreed
minutes and maps), signed at Arava/Araba Crossing Point on 26 October 1994, 2042 UNTS351, Art. 3; Document
entitled"Jordan Israel Boundary Commission Formai Approval of Coordinates of the International Boundary Line",
signed on 29 December 1998, 2042 UNTS407, p. 432, Sec. 4.2.1.
106
See Agreement betwéenthe Government of the Union of South Africa and the Government of the Republic of
Portugal in relation to the boundary between the Mandated Territory of South West Africa and Angola, signed at
Cape Town on 22 June 1926, 70 LNTS305, Art. (2).
10See Treaty between the Government of the Republic of Angola and the Government of the Republic of
Namibia regarding the Delimitation and Demarcation of the Maritime Borders between the Republic of Angola and the
Republic of Namibia, signed at Luanda on 4 June 2002, English translation in D. A. Colson and R. W. Smith (eds.),
International Maritime Boundaries, Vol. V, p. 3719, Art. III (1). -38-
moved in this short period and, in each case, there is a dry coast and the length of this dry coast
changes over time. As far as Chile is aware, the agreements between the two States is not troubled
by this alleged anomaly and does not even address it.
V. Peru's self-declared point 266
21. The final problem is Peru's assertion that its self-declared, so-called "Point 266", slightly
south of the parallel defended by Chile, must be the starting-point of the maritime boundary
because that is where the land boundary should have ended.
108
22. Point 266 was unilaterally declared by Peru in 2005 • As Peru says, "it is certainly
true" that the co-ordinates of this point have never been agreed10• So Point 266 is not opposable to
Chile. At the outset of these hearings last Monday, Peru more than once showed you a map on
which Point 266 appears. I show it to you again now. It is also at tab 69. As you can see, the
source- bottom left- is Google. I am not an expert on the history of satellite and internet
coverage in Latin America, but 1cannot imagine that the Chileans and Peruvians who established
the land boundary in 1930 had access to Google. This is something done more recently, but
seriously we have no way of knowing the time of day of this photo, or what time of month.
Seashores are fluid environments, especially where the land consists of sandy flats. It is difficult to
resist asking oneselfwhether Peru is really serious about this. After ali, there are international rules
pertaining to reliance on maps. Article 5 of the United Nations Convention on the Law of the Sea
requires a State to use its officially recognized large-scale charts to determine the low-water line,
······-------:~!lQJJ.Qj:fl:QQgJ~.::Sl!t.dU1ttiJ:nJtgery:_:S.o:w.e :---a---_etried:to.::do:whatJ>.eru:should=have::done~and:we:find;
on the basis of the Iimited information provided by Peru, that Point 266 is not, in fact, on the
low-water line. The slide now shown on your screens shows Peru's recent large-scale chart of the
frontier area. We have plotted Point 266 and here it is- sorne 180 rn on the wrong side of the
low-water line, weil out to sea: tab 70. ·
108
MP, Vol. II, Ann. p.115.
109
RP,para. 1.32. - 39-
VI. Absence ofthe Court's jurisdiction over the land boundary
23. My final remark on the starting-point of the maritime boundary- and in fact my final
remarks- concerns jurisdiction. Peru invites you to determine the starting-point of the land
boundary which it says should have been the starting-point ofthe maritime boundary 11• First of
ali, the Parties have expressly agreed and signalled their maritime boundary. But there is the
further difficulty for Peru that this Court bas no jurisdiction to delimit or mark the Parties' land
boundary.
24. The 1929Treaty of Lima finally and definitively established the land boundary between
Chile and Peru. That was Article 2 of the 1929Treaty 111• What is more, Article 3 of the
1929 Treaty established the precise means for determining and marking the agreed boundary
through the work of a Mixed Commission made up of appointees from both States 112• That same
Article 3 also contained its own dispute resolution mechanism, providing:
"If any dispute arises in the Commission it shaH[note the mandatory ward] be
settled by the casting vote of a third member appointed by the President of the United
113
States of America, from whose decision no appeal shalllie."
There is also a general dispute resolution mechanism established by Article 12 of the Treaty, again
mandatory- shall- and again for disputes to be settled ultimately by an appointee of the
President ofthe United States 114•
115 116
25. In the Agreement of 24 April 1930 , and then in Instructions dated 22 May 1930 ,the
Parties also established, at that time, the technical procedures to be employed for determining the
precise course of the boundary arc on the coastal area and positioning boundary markers on the arc,
which they then did.
26. And so the demarcation of the intersection of the boundary arc and the low-water line
117
constitute under Article VI of the Pact of Bogotâ , "matters already settled by arrangement
11RP,para.l.l5.
111
MP, Vol. II, Ann. 45, p. 236, Art. 2.
112
/bid., Art. 3.
11Ibid.
11/bid., p. 238, Art. 12.
115
MP, Vol. III, Ann. 87.
116
RP, Vol. II, Ann. 50.
11MP, Vol. II, Ann. 46, p. 246, Art. VI. -40-
between the parties ... [and] governed by agreements or treaties in force". It is therefore expressly
impossible to invoke jurisdiction under Article XXXI of the Pact with regard to any dispute in that
regard,and Peru ca~eatihsCeurt of any matter concerning the delimitation or demarcation
of the Parties' land boundary.
27. Mr. President, Members of the Court, I thank you for your patience. This concludes my
presentation, unless I can be of specifie further assistance to you. The next remarks on Chile's
behalf, when you find it convenient to cali on him, will be made by Mr. Petrochilos.
The PRESIDENT:Thank you, Professor PaulThe sitting ts now suspended for
20 minutes. Afterwards, I will give the floor to Mr. Petrochilos.
The Court adjournedfrom 11.25 ta 11.45 a.m.
The PRESIDENT:Please be seatThe hearing is resumed and the floor is yours,
Mr. Petrochilos. Please.
Mr. PETROCillLOS:
Additional relevant practice of the Parties
1. Thank you, Mr. President and Members of the Court. It is an honour to appear before you
on behalf of the Republic of Chile in this case. Professor Paulsson described the agreements that
the Parties concluded in 1968 and 1969, "I am using the Court's terms from the
10
====::=:::::::: ::~:_=====h:~iLrJbryn;i;_Qehqi_sd:içJgJhseundary:agreement::An:djtfalls:to-me:.·now:to:address:the=:::::::=.::::::::::::::~:::
balance of the Parties' practice. Now the legal relevance of this practice stems of course from
Article 31 (3) (b) ofthe Vienna Convention on the Law ofTreaties.
2. And I hope these two citations that I have just given will have made clear what my
purpose is todaOur friends on the other side were tireless in citing authorities for the
proposition, or around the theme, that practice on its own, does not a boundary make. Weil their
1MP, Vol. II, Ann. 46, p. 250, Art. XXXI.
1AbbreviatiMP=:Memorial of CMCu=Counter-Memorial oRP=hReply of Peru;
RC= Rejoinder ofChile.
120
Territorial Dispute (Libyan Arab Jamahirip. 6, para. 66.. Reports 1994, - 41 -
'
efforts, l'rn afraid, are for naught. It is not Chile's case that the practice of the Parties evidences a
tacit agreement. It is not Chile's case that the practice of the Parties is constitutive of title to
maritime zones. And it is not Chile's case that the practice of the Parties is a relevant circumstance
in drawing the maritime boundary de nova or ab initia.
3. Chile's case is quite simply that the Parties' practice shows that both Peru and Chile
considered that a permanent and all-purpose maritime boundary had been established along the line
of the geographie parallel. That is to say, the practice confirms the existence and the meaning of
the Parties' 1952 agreement on their maritime boundary.
A. Summary of the Parties' practice
4. The practice of the Parties to which 1wish to take the Court this morning, and 1estimate
this will take us to around lunchtime, consists primarily of a range of official documents from laws
and regulations, to formai communications between the Parties' foreign ministries, to a matrix of
official acts, decisions, and publications, by various organs of the Parties.
[Slide]
5. And you have now on your screens- and also at tab 72 of your folders- a sample of
such official documents. Our friends for Peru did not take you to them, so let us take the time to do
so. The documents here were either communicated by Peru to Chile, or issued by Peru and Chile
jointly. You will find their description, their date, and where they are to be found in the record.
And key terms are highlighted for you. And these tenns are plain. These documents speak of:
vessels having trespassed the "Peru-Chile frontier" "into Peruvian waters";
they speak of continuous violations of "the maritime frontier of Peru";
and they speak of continuous transgressions of "[Peru's] maritime frontier";
they speak of"the frontier line" (linea.fronteriza);
"the Peruvian maritime frontier";
the "jurisdictional boundary [of Chile]", the crossing of which, so said Peru, constituted a
violation of "Peruvian jurisdictional waters"- a term which, as Peru says, means Peru's
200-mile maritime dominion 121;
121
See RP, para. 24. -42-
- and the documents speak ofthe "boundaries ofthe Peruvianjurisdictional waters".
But there is more. Ifyou turn to the next page, which is now on your screen, you see:
the "parallel of the maritime frontier originating at Boundary Marker number one";
the "parallel of the maritime frontier";
once more, the "jurisdictional boundary";
or "the maritime boundary" (limite maritimtenn that we find, as you can see, in severa!
documents;
and again over the page you will see:
the "frontier line"
the "dividing Iine ofthe maritime frontier", and
again, the "maritime frontier".
6. According to your jurisprudence, these official acknowledgments of the maritime
boundary are "evidence of the [Peruvian] officia• Peru cannot now resile from them. Nor
can Peru credibly ask the Court to ignore their plain terms.
7. And one more inconvenient fact for Peru is that none of these official positions and
acknowledgments refers to a provisional arrangement for near-shore fiThey refer to a
maritime "frontier" or to a maritime "boundary", orto the "dividing line of the frontier". Terms
which are plain and unqualified.
8. Now, I am conscious that Sir Michael Wood suggested otherwise on Tuesday. He said
that "expressions like 'maritime frontier' or 'maritime boundary' ... do not indicate 'a definitive,
. --~--··· ·i--2·1·-ImPf-Qr~~t-im~_b_Q .!Che_...assyrs:.,Suah.terms,...he_said,_arpreise.and- .. ~····
non-technical"• But he did not suggest any better tenns. And, in fact, Mr. Bundy a little later
said that the Chile-Argentina Treaty of 1984 and the Peru-Ecuador Exchange ofNotes of2011 are
124
comprehensive delimitations because they expressly delimit maritime bou•daNow Peru
will inform us in due course of what their preferred terminology for a maritime boundary is. But
1Minquiers and Ecrehos (France/United Kingdom), LC.J. p. 71, cited with approval in
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaraguav. Honduras),
Judgment,.C.J. Reportsp. 659, para. 257.
1CR 2012/28, p. 40, para. 55 (Wood).
1/bid., p. 62, pet se(Bundy). -43-
the point- and this is an important point-is this: in the official documents in the historical
record, Peru did not once query, let alone abject to, tenns such as "maritime frontier" or "maritime
boundary".
9. And in addition to the plain and unqualified terms that the Parties have used, as we will
see, the maritime boundary has been applied to a range of matters that have nothing to do with
fisheries, including research for hydrocarbons andjurisdiction over airspace.
1O.Indeed, Mr. President, Peru has never had in place a fisheries zone: rather, it had, and
has, a single 200 mile maritime zone, or as it is called "maritime dominion", with territorial-sea
characteristics. And so Peru's present theory about a fisheries boundary fails in its premise. For
there never was a fisheries zone to delimit in the first place.
11. Now, I said minutes aga that the official documents and acts of the Parties affirm the
existence of the boundary. But what we do not have is just as important. There has not been
tension arising from competing claims or, indeed, from any uncertainty about the location of the
boundary; there bas not been confrontation or hot incidents between navies. Never has Peru
exercised any jurisdiction to the south of the boundary parallel; and never bas Chile exercised any
jurisdiction northof it. There has been peaceful, open, uninterrupted exercise of jurisdiction on
bath sides ofthis boundary for many decades.
B. Both Parties acknowledged their maritime boundary in the context of negotiations
concerning potential access to the sea for Bolivia
12. Let me turn, then, to particulars, and the first specifie example in this series of instances 1
will be taking you to this morning is the negotiations in 1975-1976, for the grant of a corridor to the
sea for Balivia. ·In December 1975, Chile made to Balivia a specifie proposai for a land corridor.
And this proposai also involved "a territorial sea, economie zone and continental shelf' for
125
Bolivia • Peru was consulted by Chile, because Peru's prior agreement was required by the
e~~' Ot Prot~col to the 1929 Treaty ofLima 126for territorialse:;;:.ion'\.And so Peru received bath Bolivia's
and Chile's positions, and it acknowledged receipt ofthese documents 127•
125
See RC, Vol. II, Ann. p.135, para. 4.d).
126
See MP, Ann. 45, p. 239, Art. 1; RC, Vol. Il, Ann. 25, p. 137, para. 4.n).
1See RC, Vol. II, Ann. 26, second para. -44-
128
13. In January 1976, Peru read Chile's proposal ; this would grant to Bolivia "the maritime
territory between the parallels of the extreme points of the coast that will be ceded" to Bolivia 129•
[Siide]
14. And now I will illustrate this for you- it is on your screens and also at tab 73 of your
folders. The Bolivian maritime zone would have been bounded, as you have beard, by two
parallels of latitude- to the north, the existing Chile-Peru maritime boundary; and to the south, a
new parallel of latitude, corresponding to the Chile-Bolivia land boundary that would come into
c.e.~~- \-' being after the land\SessiGJJ.
15. Now, this proposai was referred to an ad hoc Commission in Peru. It was headed by
President Bustamante y Rivero who, as you have beard, had co-signed Peru's 1947 maritime zone
proclamation and had just six years earlier retired as President of the Court. The basis for Chile's
proposai was clear, and it is plain for you to see on the diagram: Chile could grant a land corridor
and maritime zones to Bolivia because there was a maritime boundary in place between Chile and
Peru, and that boundary divided ali maritime zones - to repeat: "territorial sea, economie zone
and continental shelf'- and the boundary followed the parallel of latitude, as is depicted.
16. Peru raised no objection to these points, which are of course of fundamental importance
to the present case. In a meeting between Chile and Peru in July 1976, it was common ground that
their maritime boundary had been established; and also that the 1954 Special Maritime Frontier
Zone Agreement was applicable between them 130• Sir Michael Wood said that "Chile has produced
no records ofthe consultations to which it refers, and [Peru is] not aware ofany." 131 The position,
....,...._____.............._________,_ ,_,_,......-.-.-.-.-..-.-.".".""__"__...,..,......,.....,,__,,_,_,_,..,................_,_,,1___._....._.,____,___
____________Mr. President, is that Chii<UL~J2ro dou cheeCdourt its_r_e,Çm:d_oLdisc_ussions_withJ>.e __,_and______ __ ___
Peru has not. Following the Parties' meeting in July 1976, Peru made a counter-proposal. This
focused on the land corridor 133• As you heard from Sir Michael, Peru proposed that the coastal area
128
See RC, Vol. II, Ann. 26, p. 141, third para.
129
/bid.,Annex 25, p. 135, para. 4.d), third point.
130
/bid., Ann. 55, p. 321.
13RC 2012/28, p. 44, para. 70 (Wood).
13RC, Vol. II, Anns. 26, 54 and 55.
13See ibid.,Vol. III, Ann. 87, p. 537. -45-
of the land corridor would be under joint sovereignty of Chile, Peru and Bolivia; and also that the
134
Chilean port of Arica be placed under tri-national administration •
17. Now, that was the extent to which Peru proposed something different from Chile. Peru
did not say that there was no maritime boundary in place; nor did Peru say that the boundary was
not at the parallel; nor did Peru say that it had entitlements to the south of the boundary parallel;
though Peru should and of course would have said such fundamental concerns if any existed.
In fact Peru accepted that Chile- Chile and not Peru- could grant Bolivia "[e]xclusive
135
sovereignty ... over the sea" • If Peru believed, as it says now, 30 years after the event, that
Chile had no such entitlement to grant, it would certainly have retorted: one cannot give what one
does not have Nemo dat quod non habet.
18. I am conscious that Peru on Tuesday was very careful not to address the substance of
these negotiations. Rather, Peru reacted to two sketch-maps that were produced with Chile's
Rejoinder. One sketch-map, which was included in Annex 87 to Chile's Rejoinder, was contained
in the Chilean governmental publication, in 1978, of the negotiations on the Bolivian corridor.
Chile did not suggest, in its pleadings, nor does the sketch-map say, that it was produced by Peru.
It was Chile's illustration of Peru's counter-proposal, and itwas published 35 years ago. We are
aware of no protest by Peru to that government publication, which suggests that Peru has never
thought there could be any confusion about this. Similarly, figure 72 of Chile's Rejoinder, which
was shown to the Court on Tuesday, is very obviously an illustration produced for this case.
19. So, to return to the substance of the matter which, once more, Peru does not wish to
address, it is this: it is clear that in the negotiations about the Bolivian corridor, Peru did not take
exception to the proposition that it was for Chile - again, not for Peru, for Chile - to grant a
maritime area to Bolivia, and that maritime area was to be bounded by two parallels of latitude.
136
And, as we have shown in our Rejoinder, this is how the position was generally understood •
13CR 2012/28, p. 45, para.72 (Wood).
135
RC, Vol. III, Ann. 87, p. 537, para. 4.
13/bid., Vol. V, fig. 73. -46-
C. Both Parties acknowledged their maritime boundary in negotiations
concerning special fishing rights for their nationals
20. The second example of the practice that I want to take you to concerns negotiations
between Chile and Peru to allow their fishermen to fish on the other side of the maritime boundary.
This would be a separate arrangement from that under the Frontier Zone Agreement of 1954, in
that the 1954 Agreement tolerates accidentai presence within the buffer zone, which is on either
side of the boundary parallel, but it does not allow any fishing to take place there. And in these
negotiations, once more, both Parties acknowledged the existence oftheir boundary. Negotiations
took place in 1954-55 and, again, in 1961. I will focus now on 1961.
21. Chile proposed to allow Peruvian fishermen to fish up to 50 miles south of "the
137
Chile-Peru frontier" ; with an equivalent right for Chilean fishermen to the waters north of the
frontier. So, this wouid be a sort of mutual recognition scheme, which is much more than a simple
zone of tolerance, as Peru tried to suggest last Tuesday 13• Chile stated its motivation as follows:
"[D]ue to the movement of the schools of anchovies along the frontier zone ... the companies of
the ports of Arica [which is in Chile] and llo [which is in Peru] are forced to cease operations for
139
long periods due to the lack of fish." Peru's Government referred this matter to the Peruvian
national section of the Permanent Commission of the South Pacifie. Now, this is a standing unit of
senior Peruvian Government officiais; and they prepared a report, which said this:
"[T]he movement ofthe fish schools along the frontier line and its effects on the
industries established in the ports near the frontier, is a proven fact which affects the
fishing industries of llo and Arica in different ways, depending on the distance to the
frontier and the types offish involved." 140
.::.22:•~ATid~so;•••inT96l•ïleîthef:·of..tneFarties=refe-rred•:to•aprovisionai••fisheries=Iine~being=in==::.::::.:::::::.:::::::.::.::
place; quite the opposite- both of them used the terms "frontier" and "frontier Iine", which
indicate a definitive and all-purpose boundary.
23. Chile adduced the relevant records with a Counter-Memorial, in March 2010. And then
nothing was beard from Peru on this matter for the best part of three years, until Sir Michael
devoted three sentences to it on Tuesday. He had nothing to say about Peru's report and the
13eMe, Vol. III, Ann. 72, p. 547, para. 1.
13eR 2012/28, p. 38, para. 47 (Wood).
13eMe, Vol. III, Ann. 72, p. 545, first para.
140
/bid.Ann. 120, p. 777, second para. - 47-
references there to a "frontier" and a "frontier line". And, as for Chile's proposai, he said that
although this referred to the "Chile-Peru frontier", "this made no reference to a maritime boundary
141
previously established" •
24. Well, what did Chile refer to if not the maritime boundary? Is Peru suggesting that Chile
proposed that fishermen be allowed to fish 50 miles on either side of the boundary on land? Was
this a negotiation about fishermen of crabs? Or is Peru suggesting that the term "frontier" meant
not an existing frontier, but a hypothetical frontier or a yet-to-be-agreed frontier?
25. Whatever Peru may suggest- and perhaps we will find out next week- the point,
again, is simple: Why did it take Peru 52 years to query the term "frontier" when its neighbour
asserted that there was one at the time?
D. The Parties' sovereign control oftheir maritime zones
confirms the existence of their maritime boundary
26. I turn next to the practice regarding the limits of the maritime zones in which each of the
Parties exercises sovereign control. The important point here is that both Chile and Peru have
applied parallels of latitude as limits to divide their navies' areas of responsibility; and, in doing
so, both Chile and Peru have respected the boundary parallel. Diagrams on your screens will
illustrate the position, and I will start with Peru. The complete picture may be found at tab 74 in
your folders.
[Siide]
27. Peru created a coastguard within its navy in 1969. Its mission is to control Peru's
142
"jurisdictional waters" • Peru's waters were then sub-divided into areas of responsibility for local
units, as you see illustrated. Under a Supreme Decree ofl987 14, each such area is bounded by two
parallels of latitude and is called a Maritime District. The navy is charged there with a wide range
of responsibilities. These inelude, in particular:
(i) controlling traffic and safety of navigation;
(ii) monitoring safety ofhuman !ife;
141
RC, 2012/28, p. 38, para. 49 (Wood).
142
MP, Vol. II, Ann. 14p. 61, Art1.
14RC, Vol. III, Ann. 90, pp. 557-558, Art. A-020301. - 48-
(iii) taking anti-pollution measures;
(iv) authorizing the installation oftemporary or permanent works at sea; and
(v) authorizing and supervising scientific research activities 14•
28. These are typical activities of States in their exclusive economie zone and continental
145
shelf • They are not directed directly simply to fisheries.
[Siide]
29. Peru's southernmost Maritime District to which 1 would now direct your attention-
which is Maritime District No, 31 - is now highlighted on your screen. This covers the area
"from ... Parallel 16 25' South ... to the frontier boundary, limite fronterizo, between Peru and
Chile" 146• ln the context of defining areas of maritime jurisdiction, Mr. President and Members of
the Court, the tenn "frontier boundary" is hardly an ambiguous one.
30. Now it is true Mr. Bundy suggested otherwise. He said the term "frontier boundary"
means the land bütmdary 147•
[Siide]
Weil, ifthat is right, then, as you can see on your screens, the upper limit ofPeru's Maritime
District 31 is fully defined by parallel 16° 25'S, and it extends out 200 miles; but to the south this
Maritime District is limited to a point on the coast. What kind of maritime district is that? Which
waters does Peru's navy control? Does the navy not know? Does the navy not need to know?
31. Quite simply, the reading of its own law that Peru advances in this litigation is not
credible.
32. And if further proof of that were needed, let us look at Peru's northernmost Maritime
District, which is Maritime District No. 11, at the top of your screen, which is highlighted. It is
defined in the 1987 law of Peru as extending "from the maritime frontier with Ecuador, to ...
148
Parallel 06 21' S" . And yet Peru submits to the Court that there was no maritime boundary with
144
RC, Vol. III, Ann. 90, pp. 554 557, Arts A-010201 and A-020201.
145
UNCLOS, Arts. 56 and 77.
146
RC, Vol. III, Ann. 90, p. 558, Art. A-020301 (/).
14CR 2012/28, pp. 61-62, para. 29 (Bundy).
14RC, Vol. III, Ann. 90, p. 557, Art. A-02030(a). -49-
Ecuador until May 2011. What are we to make of this? That Peru's regulations refer to inexistent
maritime frontiers? That they refer to hypothetical maritime frontiers, lying 24 years in the future?
33. The position, Mr. President, is that in 1987 Peru defined its Maritime Districts, quite
properly, in compliance with its two maritime boundaries - to the north with Ecuador, and to the
south with Chile.
[Slide]
34. And turning now to the practice of Chile. In the north of the country, Chile also uses
parallels of latitude to divide its Maritime Gobernaciones 14• And the responsibilities that the
Chilean navy exercises broadly mirror those of its Peruvian counterpart on the other side of the
boundary 15• And again, they are much broader than fisheries.
[Slide]
35. Chile's Maritime Gobernacion of Arica is now highlighted on the screen. It is bounded
51
to the north by the "Chile-Peru international political boundary", limite polftico internacional •
We will see shortly that this term has also been used in the bilateral practice between Chile and
Peru as, indeed, it has also been used between Chile and Argentina as well 152 to refer to their
maritime boundaries.
36. As I have said already, there has never been any incident between the navies of the
Parties on account of any overlapping claims or uncertainty about the boundary. Let me show you
why.
[Slide]
37. Chile has produced to the Court a sketch-map that was contained in its navy's Rules of
Engagement, when such Rules were adopted in the 1990s. Itnow appears on your screens and you
will also find it also at tab 75. I would draw your attention first to the upper part of the map. There
you see that Peru's waters are marked "Peruvian Territorial Sea", Mar Territorial Peruano. Unlike
Chile, Peru has an undifferentiated 200-mile maritime dominion. And as you can see, Peru's
14RP, Vol. II, Ann. 24, p. 187, Art. 1.
150
RC, Vol. II, Ann. 44, pp. 237-238, Art. 3.
15RP, Vol. II, Ann. 24, p. 187, Art. 1.
15RC, Vol. II, Ann. 9, p. 4ibid.Ann. 10, pp. 49 and 51ibid.,Ann. Il, p. 59, para. 2. -50-
waters are always limited to the south by the boundary parallel- even further to the west than the
outer limit ofChile's EEZ, which is also indicated on the map. You also see a rectangular hatched
area in the middle of the map. That is the buffer zone on either side of the maritime boundary
parallel, and it is marked as Special Maritime Frontier Zone
this name is, of course, directly
taken from the title ofthe 1954 Agreement.
[Siide]
And, if we now zoom in on the right-hand side of the map- which you now see as an
additional inset- we see that the boundary is clearly indicated along the parallel of latitude of
Hito Nol.
38. Now, as 1 say, Peru has not provided to the Court any equivalent document. But you
have already beard Mr. Paulsson on how Peru's corvette Diez Canseco stopped pursuit of a Chilean
153
fishing boat just short of the "frontier Iine" And the words "frontier Iine" are not my own: they
were used by Peru's Foreign Ministry in its relevant communication to Chile in 1966. So we know
how Peru's Navy and Foreign Ministry understood the position, and how they represented it to
Chile. Their understanding was clear- and so was the term they used: "the frontier Iine".
E. Peru's system for monitoring entry into and exit from its maritime dominion
acknowledges the maritime boundary with Chile and Ecuador
39. I turn now to Peru's monitoring system for maritime traffic.
40. In 1988, Peru issued a reporting regulation. Both Professor Pellet and Mr. Bundy
referred to this, but ever so briefly. They said thateru requires of ships to report for search and
...----·---------r~_s_ç_u_e_p_uyp_o_s_e_s_-=_SAR_pJtrp_os_es;_and,. _Jh_e______dde_d,_SAR_zones_aœ_withmtt_prejudice_to_maritime
154
boundaries • My friends opposite were less keen to take you to Penl's regulation itself or indeed
to the record of its Application. Let us do so.
41. Peru's regulation requires "[a]ny national or foreign ship ... that crosses into Peruvian
155 156
waters" ,also referred to there as ''jurisdictional waters,to report upon entry into or exit from
153
CMC, Vol. III, Ann. 75, pp. 561-563, para. 3.
154
CR 2012/28, p. 60, para 25 (Bundy).
15CMC, Vol. IV, Ann. 175, p. 1065, Sec. 1.34.
15/bid., Sec. 1.35. -51 -
157
Peru's waters. The regulation expressly refers to the "southern parallel 18° 21' S" • So, the
simple and dispositive fact here is that Peru requires any ship of any type to report upon crossing in
and out of "Peruvian waters". This is not Peru's SAR zone. Peru's SAR zone extends some
3,000 miles from the coast. What matters here is how Peru defmed the limits of its 200-mile waters
in asking ali vessels to report upon entry into or exit from them. Whatever other requirements may
apply in Peru's SAR zone, it is clear that so far as reporting of positions is concerned, that
requirement applies to Peru's maritime dominion.
42. And, indeed, the full title of Peru's reporting system, which is known as SISPER, is
translated in English as "system of information on position and security in the maritime dominion
of Peru" 158 - the maritime dominion of Peru. Now when Peru provided the SISPER regulation
159
with its Reply, the words "maritime dominion" were somehow, shall we say, lost in translation •
Peru does not want you to see that its regulation contains the limits of its maritime dominion. And
so, remarkably, these two words were deleted.
43. Peru's regulations were reissued three times after 1988- in 1991, 1994, and 2001 160•
And the essential requirements have remained the same throughout. The 1991 version of the
161
regulations, in particular, sets out a model report for a "sailing plan" that needs to be submitted •
162
And this has a section entitled "Crossing of the jurisdictional parallels" - notice the plural here,
"parallels"- and it sets forth the co-ordinates of both of Peru's two jurisdictional parallels. And
the southern "jurisdictional parallel" in this regulation is the line of the maritime boundary with
Chile. And there is no indication that this ''jurisdictionalparallel" is somehow a provisional one, or
that it applied only to fishing boats of Peru and Chile.
44. SISPER also contains model reports as guidance for compliance. And it sets forth a
sample point of entry into Peru's maritime dominion.
[Siide]
15CMC, Vol. IV, Ann. 175, p. 1065, Sec. 1.34.
15/bid., Sec. 1.35.
15See RP, Vol. II, Ann. 13; RP, para. 4.31 and footnote 385.
16See CMC, Vol. IV, Anns. 178, 180 and 193.
161
/bid., Ann. 178, p. 1093, Ann. (3).
162
/bid., Sec. 12. -52-
The statutory point from the 1991 version of SIthe sample point-isplotted on the chart
that now appears on your screen and you see therettle triangle on the left-hand side.
45. Chilebas also obtained 68 reports, submitted by commercial ships of various flags, to
comply withSISPER, between 2005 and 2010•
[Siide]
And we have plotted the reports on the chart that is before you. So in this frame on your
screen, you see reportsentries into Peru's maritime dominion from the south: these are the
purple thrusts northwards.
[Siide]
And in this frame now you also see reports of exits from Peru's maritime dominion, coloured
in green.And in this last frame, you see that Peru's model reporting position, the reported
positionsf entry, and the reported positions of exit are ali aligned on the bouandry parallel-
this diagram you will also find under tabur folders. And as you also see here, once more,
the boundary extends further westwards than Chile's-mile outer limitPeru's maritime
dominionis bounded throughout its full extension by the boundary parallel. And my colleague
David Colson will return to this issue in the afternoon.
[Siide]
46. Now, applying the same methodology, we plotted reported entries into, and exits from,
Peru's maritime dominion in the north, and they are on your screens. And, as you see now, when
the boundary parallel with Ecuadorlotted on the chart, there is, again, alignment. This diagram
---~------------~--- --~---~------ - -- ------------~-----~-----
· ~~-=-==-=~~~=-~)'ou- ___ü ;}ns1-f,Penus r~egtutlabt_i7ononsiue!tyJQPboth _ofPeru'tw.'-'-=.o~~~
maritime boundaries or ')urisdictional parato the north with Ecuador and to the south with
Chile.
16They have been compiled as RC, Vol. IV, Ann. 154. -53-
F. The Parties' fishing regulations and their implementation
acknowledges their maritime boundary
1. The Parties' regulations of fishing activities in their respective maritime zones
164
47. I come now, Mr. President, to Chile's and Peru's practice on regulating fishing • The
record goes back to the mid-1950s and it shows, time and again, that both States recognized and
respected the maritime boundary.
48. It bears emphasis that fishing is the main economie activity in the waters around the
maritime boundary. And so control of fishing is emblematic of the exercise of sovereign
jurisdiction by both States in these waters.
49. Thus Peru, since the 1950s, prohibits foreign vessels- except if they carry a special
165
permit- from fishing in "Peruvian jurisdictional waters" , a tenn that was later changed to
"territorial waters" 166,and later to "maritime dominion" 167• Now ali ofthese terms signi(y plenary
jurisdiction. They do not signi(y a mere fisheries zone - and, as I say, Peru never even had such a
zone.
50. Chile's fishing-regulation practice strongly indicates the existence and the course of the
maritime boundary 168• Let me give you two examples, stressing upfront that to neither of them was
there any hint of opposition by Peru:
(a) First, a Decree in December 1986 regulated fishing in an area to the south of "the parallel
which constitutes the northern maritime boundary" 169with Chile.
(b) Secondly, we have nine licences issued by Chile to industrial fishing companies for the areas
around the boundary, between 1971 and 1993 170, and the majority of these are from 1980.
They were ali excerpted in the Official Gazette of Chile, and they were visible to Peru. A table
summarizing what was published is in your folders and, as you will be able to see there, at
164
See CMC, Chap. III.4.B, pp. 219-228; RC, Chap. III.5.B, pp. 157-161.
165
RC, Vol. III, Ann. 82, p. 507, Art. 1.
16Art. 133 of the Regulation ofCaptaincies and Merchant Navy, quoted at CMC, Vol. III, Ann. 74, p. 555.
16Art. C-070004 of the Regulation of Captaincies and Maritime, Fluvial and Lacustrine Activities, quoted at
CMC, Vol. IV, Ann. 176, p. 1072 and CMC, Vol. IV, Ann. 177, p. 1080.
16See CMC, paras. 3.61, 3.64 and 3.66; RC, Chap. III.5.G.2, pp. 179-181.
169
CMC, Vol. III, Ann. 134, p. 843, Art. 1.
17See RC, Vol. II, Anns. 53, 59-63 and 65-67. -54-
tab 78, in each one of these licences, the authorized "area of operations" was bounded to the
northby the parallel ofHito No 1, notated as 18° 20'or 21'S.
--- ~- ---
51. Because both Parties have regulated fishing as one aspa prominent aspect- of
sovereign rights in their 200-mile zones, both of them have treated unauthorized fishing as a
violationof sovereign rights. Indeed, on many occasions, in the early 1960s and 1970s, Chile's
authorities instructed fishermenrica not to carry out fishing ''N01ihof the frontierorine"
"North ofthe boundary paralle1•
52. And in formai requests made to the other State to ensure that its nationals respect the
boundary, both the Santiago Declaration and the 1954 Frontier Agreement were expressly
relied upon. And so:
(a) In 1962, Peru complained about frequent trespassing by Chilean fishermen into Peruvian
waters, and it stated th"[T]aking strongly into account the sense and provisions of the
'Agreement Relating to a Special Maritime Frontier' ... [Peru] wishes the Government
of Chile ..to adopt measures to put an end to these illegitimate incursions, and that the
ownersof fishing vessels be notified that they must refrain from continuing to fish north of the
173
Peru-Chile frontier•
(b) And for its part, in 1965, Chile complained that the presence of Peruvian vessels in waters
"south of the Chilean-Peruvian border" was "not consistent with the provisions contained in the
[Santiagoeclaration]"7•
1 pause for a minute at this document because it contains one inore significant point.
~=:=:=~=-- -~-M-r]3i:indx:~~!:gtù!~--tfiaff!c :~ia:Ts-:2J!1Jritliéi-at1i1ës-Tl99goseifliïafia n -_f
175
waters beyond the territorial sHe had overlooked this document, which in fact Peru placed on
record. Chile's complaint was aboutuvian vessels in waters 45 miles to the west of Arica. And
this was in 1965, not 1995.
171
CMC, Vol. III, Ann. 119, p. 770, paribidAnn. 118, p. 765,1.ara.
112
/bid.Ann. 128, p. 817, para. d), first para.
173
Ibid.Ann. 73, p. 552, penultimate para.
174
MP, Vol. III, Ann. 68, p. 407, paras. 1 and 2.
175
CR 2012/28, p. 57, paras. 12 and 13 (Bundy). -55-
53. Now, I showed to the Court at the outset that, on multiple occasions, the official
documents of both Parties refer in plain terms to a maritime boundary- not a provisional
arrangement, not a line for limited purposes, not an informai system to avoid frictions among
fishermen- but a boundary.
[Slide]
And sorne examples have been excerpted at tab 79 in the Court's folders, which now also
appear on your screen. The documents here are Peruvian official communications from the period
between November 1965 and September 1967. Peru complains here about illegal fishing by
Chilean boats. And Peru uses, once more, as you see highlighted on your screens, the term
"maritime frontier". The "maritime frontier", Chile submits, Mr. President, is not a mysterious
concept- and never was.
2. The Parties' enforcement of the boundary line
In addition, Peru was ready and willing to defend the boundary against Chilean private
vessels, even by use of force.
54. Five incidents have been documented in official papers. They start with the
Diez Canseco incident of 1966- this is the 220-foot corvette that you saw on your screens, which
176 177
fired 16 cal)on shots • And the incidents end 25 years later, in 1990 • For example, in
September 1967 the Peruvian corvette Ga/vez pursued Chilean trawlers that had violated the
boundary. A formai protest by Peru's Foreign Ministry ensued. The protest said that Peru's Navy
had pursued the trawlers up to, "the boundaries of the Peruvian jurisdictional waters" 178• What
could be clearer?
55. And Chilean fishermen, ifcaught, could be prosecuted. We have four Peruvian decisions
on record, two from 1989 and two from 2000. The two decisions from 1989 state that the Chilean
fishermen were arrested north of the "frontier line of the Republic of Chile, in the jurisdictional
176
See CMC, Vol. III, Ann. 75.
17See RC, Vol. III, Ann. 92. See also the incident at CMC, Vol. III, Ann. 76, p. 567, para. 9 (13 May 1966).
17CMC, Vol. III, Ann. 77, p. 571. -56-
179 180
waters of Peru" • The decisions also refer to the "dividing Iine of the maritime frontier" •
Again, what could be clearer?
56. Each one of the four decisions, in 1989 and 2000, has the same legal basis; this is a rule
181
that prohibits foreigners from fishing "in waters under Peruvian maritime dominion" • And
182
indeed ali four ofthese decisions refer in terms to Peru's "jurisdictional waters" - so there is no
hint at ali here of a special zone, or of a special line for fisheries.
57. And now, which frontier line specifically was Peru enforcing in these decisions? The
decisions record approximate co-ordinates of the arrests and also the distance from the frontier Iine.
These data are plotted on the charts before you now, and also at tab 80 in your folders.
[Siide]
As you see from the arrows connecting the points of arrest with the line of the maritime
boundary, the frontier Iine that Peru was enforcing was in every case the parallel of Hito No. 1.
And one more point here is that the Peruvian arrest farthest to the west- which is the little red dot
on the left- occurred 65 miles from the starting-point of the boundary. 1 recognize that our
friends for Peru have never explained what they have in mind when they speak of a "near-shore"
boundary, but 1suspect they would agree that 65 miles from the coast is rather far, from the coast.
58. As for Chile's arrests, now, ofPeruvian boats, south of the boundary parallel, we have a
total of 17 years' worth of records: we have the records for the year 1984 and for the 16-year
period between 1994 and 2009. Such records are in the normal course destroyed periodically, and
so we are fortunate to have such a long period available for us 183•
boundary parallel- including of course in waters to which Peru now lays claim.
[Siide]
179
CMC, Vol.IV, Ann. 176,p. 1072, first para.; ibid., Ann. 177, p. 1080, first para.
180
/bid., Ann. 176, p. 1072, fourth para.; ibid., Ann. 177, p. 1080,fourth para.
181
/bid., Ann. 176, p. 1072, penultimate para.; ibid., Ann. 177, p. 1080, penultimate para.; ibid., Ann. 187,
p. 1138, sixth para.; ibid., Ann. 188, p. 1142, sixth para. ali reproducing Article C-070004 of the Regulation of
Captaincies and Maritime, Fluvial and Lacustrine Activities; See also CMC, para. 3.92.
182
/bid., Ann. 176, p. 1072, first, third and fourth paras; ibid., Ann. 177, p. 1080, first, third and fourth paras;
ibid., Ann. 187, p. 1139, first and second paras; ibid., Ann. 188,p. 1143, first and second paras.
183
The data are to be found at CMC, Vol. VI, App. -57-
The charton your screens, which you will also find at tab 81, covers part of the area in which
arrests were made, up to about 80 miles to the south of the boundary: and so you see there
207 arrests plotted on the chart, out of a total of 309 arrests for the period. These are the many
dispersed dots that you see below the red line of the boundary parallel. And as you see, arrests
were made as far from the coast as 180miles. Indeed, the vast majority of the arrests are well
outside Chile's 12-mileterritorial sea, which is also indicated.
60. Mr. President, Members of the Court, Peru tells you that the boundary has been applied
"only in the sea areas lying close to [the Parties'] coasts" 18• But the evidence here leaps out of the
screen- the boundary has been enforced in the full extent of Chile's 200-mile zone.
61. Now Peru's Navy in llo and Peru's Consulate-General in Arica were notified of the
arrests, by Chile's navy. Each notification gives the location of the arrest, or the distance from the
"international political boundary", or bath. The earliest notification we have in full text is from
February 1999. It is difficult to suppose that Peru could have misunderstood its meaning. Itsays
this:
"The [Peruvian] vesse] was ... 3 miles within the Chilean territorial sea and
with the Peruvian . . . and Chilean . . . lighthouses within sight, which . . . when
aligned, indicatethe parallel of Hito No. 1, which constitutes the international political
185
boundary."
And no protest was lodged by Peru. Peru did not cry that no maritime boundary existed. Nor did
Peru even so muchas guery the "international political boundary".
3. Co-ordination between the Parties' navies
62. There is a related body of practice here, which concerns co-operation between the two
States' navies in boundary-enforcement actions.
63. As recently as 1995,the navies ofPeru and Chile memorialized a procedure for escorting
arrested boats back to the ir home State's waters, if found fishing within the 10-mile buffer zone on
either side of the boundary. The boats were to be escorted to a tine that is described in this
agreement of 1995 as the "international political boundary" 186: and subsequent official
184
CR 2012/27, p. 19, para. 12 (Wagner).
18See CMC, Vol. III, Ann. 88, p. 621.
18See ibid.Vol. II, Ann. 21, p. 198, Ann. "A", III. -58-
notifications also record that Peruvian fishing boats arrested in Chilean waters were escorted to the
"international political boundary". Peru acknowledged these notifications on at !east two occasions
187
that we have on record ; and, again, it entered no reservation or even so much as a query about
the boundary. Logbooks of Chilean navy ships also record instances of handing over, at the
boundary, Peruvian fishing boats to the Peruvian navy 188• And again, Peru did not object when the
Chilean navy came up to the parallel of Hito No. 1, in waters that Peru now says were Peruvian
after ali.
64. In the same way, Peru's navy would escort Chilean vessels found on the wrong side of
the boundary to the "parallel 18° 21' 03" S" 189 orto the "frontier area" 19• So in Peru's own
documents we see the parallel of Hito No 1 is used as equivalent to the notion of the "frontier
area".
65. Mr. Bundy for Peru, on Tuesday, did not mention the 1995 agreement- which clearly
confirmed the existence of the Parties' boundary- nor did he mention the implementation ofthat
agreement. But he was keen to tell the Court of another event, which took place severa! years later,
in 2003. He quoted one sentence from one document of the Chilean navy 191• And I propose to give
you the fuller picture.
66. In 2002, the Chilean and Peruvian navies started discussions on a common strategy
192
against illegal activities at sea • The common strategy envisaged that the two States' would
communicate "with the purpose of arresting boats in their respective waters of jurisdictional
responsibility" 193• In 2003, Peru proposed to include a disclaimer to this draft strategy document,
regards the nature, boundaries or scope of their zones under national jurisdiction, or their positions
194
with respect to the international instruments addressing these matters" •
18See CMC, Vol. III, Anns. 96 and 99.
18See ibid., Ann. 141, p. 876; ibid., Ann. 152, p. 928.
18Jbid., Ann. 93, p. 644, para. 2.
19Jbid., Ann. 102, p. 681, para. 1.
191
CR 2012/28, p. 61, para. 27 (Bundy).
192
CMC, Vol. II, Ann. 28, pp. 253-255.
193
lbid., p. 255, para.(c).
194
RP Vol. II, Ann. 88, p. 540, para. (5). -59-
The first significant thing that Peru omitted to say was that this was the first occasion- in
2003-wh en Peru purported to reserve its position on the boundary.
The second thing that was left out of Peru's account on Tuesday is that Chile's navy requested
that Peru's proposed disclaimer be withdrawn, saying that it was "beyond the authority" of the
195
navy to address international boundary issues, which are for the Foreign Ministry •
The third point Peru omitted to say was that, also in 2003, Peru's navy attempted to set aside
some of- what Peru's navy said itself- were "agreements in force" including the
1995 agreement which regards the international political boundary 19• That is the fuller picture.
67. I now want to deal very briefly with three further areas of practice: first, sea-bed
activities; second, scientific research on the continental shelf and in the water-column; and lastly,
airspace. And 1promise 1will be very brief.
G. Sea-bed: The Parties' authorizations acknowledge
their maritime boundary
68. The Court will recall that the physical continental shelf in the vicinity of the maritime
boundary is very narrow. But what practice there is confirms the existence of the maritime
boundary.
69. About a decade ago, Telef6nica, the telecommunications company, built a fibre-optic
network called South America-1, or for short SAm-1.
[Slide]
As you can now see on your screens, and also under tab 82, this was an ambitious project. It
197
encircles large parts ofthe Central and South American coasts, in the Pacifie and in the Atlantic •
[Slide]
And in the detail highlighted on your screens now, you can see the points where the cable
makes landfall on Peru's and Chile's coasts. And so, each of the two States knew that the
submarine cable would cross their boundary.
19See RP Vol. II,Ann.89, p. 548, par(1).
196
See CMC,Vol. II,Ann. 29, p. 263, para. C.l.
19Source:www.fee.gov/Bureaus/lnternationai/Orders/2000/da1826.doc. - 60-
70. Peru requires authorization for laying cables in its maritime dominion and so, in
198
September 2000, Peru duly approved the laying oftwo segments ofthe SAm-• The legal
basis for this authorization was aan law regarding "control and supervision of maritime ...
199
activities"•And Peru itself describes this law as dealing with a "broad range of activities" in the
200-mile zone in which "Peru claimed exclusive ri•hAnd so it is clear that in authorizing
this cableeru was exercising sovereign rights in its maritime dominion. Peru was not exercising
any fisheries-limited jurisdiction.
[Siide]
71. And turning now to tab 83, and also on your screens, you see that Peru authorized part of
Segment 0 of the SAm-1 cable. You see its course there; it is a purple line, as in fact it was laid in
the Peruvian maritime dominio•And, crucially, for present purposes, you see the end-point of
Peru's authorization. It stops at latitude 18° 21'00.0" S, the geographie parallel of the
maritime boundary.
[Siide]
72. And you also see on the chart now, as a green line, the continuation of Segment 0 and
the next segmentf the cable, which is Segment P. These parts are on the Chilean continental shelf
and the territorial sea.
202
73. The bathymetrie research for that purpose was authorized by99 ,and was
conductedin 1999 and 2000 by two research vessels.
[Siide]
-~~ ~-~ ~-~--- ~-~-i~t-- -!~_as~)'_olis~-~l~-tlii~!f~~~~ow~~ni?~~sc~e~n,~~~I~~!!~!~?e~~~~~~~~r!s~~rcli~!!~~t::_<;liil~~=:=~=-~~~--···
authorized is indicated as an interrupted tine. It starts from the boundary parallel and it continues
southofthe parallel.
[Siide]
1See RC, Vol. III, Ann. 96, p. 597, para. 1.
199
Law on the Control and Supervision of Maritime, Fluvial and Lacustrine Activities, MP, Vol. II, Ann. 20.
200
MP, para. 3.15.
2Based on Peru's and Chile's navigation charts.
2See CMC, Vol. III, Ann. 144, p. 891; C(c).para. 3.115 - 61 -
74. Chile's authorization for this research contained a sketch-map, which is now on your
screens, and also at tab 84.
[Slide]
And in the magnification you have in the inset, you see that the boundary parallel is
indicated as a dotted line. It is plain that Chile's jurisdiction extends ali the way to the boundary
parallel.
75. And so, Mr. President, Peru bravely told you on Tuesday "that those activities that Chile
203
cites . . . had nothing to do with the continental shelf' ,but that is plainly wrong.
H. The Parties' authorizations of scientific research in the continental shelf
and in the water-column acknowledge their maritime boundary
76. 1 turn next to marine scientific research. Under UNCLOS, authorization of such research
204
is an EEZ and continental-shelf competence of the coastal State ,and both Chilean and Peruvian
205
law require authorizations for such research •
77. The Court has the evidence of twelve research projects, which goes back to 1977, and a
summary of these you can find under tab 85 in your folders. The projects cover a wide range of
matters unrelated to fisheries, such as hydrocarbons, marine sediments, bathymetry, biology, and
other matters. Chile's official authorizations for these projects refer expressly to the "International
206 207
Political Boundary" or the "boundary of the frontier with Peru" • And sorne of these
208
authorizations specify with co-ordinates the parallel of Hito No. 1 as the northern limit of the
research area.
[Slide]
78. The composite diagram that you now have on your screens, and also at tab 86, illustrates
the routes or the areas of four of the research projects that were authorized by Chile. And, as you
see, these go right up to the boundary, or very close to it, covering the area that is now claimed by
203
CR 2012/29, p. 16, para. 63 (Bundy)
204
See UNCLOS Art. 246.
205
See CMC, Vol. III, Ann. 131, p. 831, para. 2 (Chilean law); ibid., Ann. 82, p. 594, first para (Peruvian law).
206
/bid., Ann. 147, p. 905, para. 2ibid.,Ann. 148, p. 909 para. 2; ibid.Ann. 156, p. 943 para. 2.a.
207
/bid., Ann. 155, p. 939, para1.
208
See ibid.Ann. 155, p. 939, para. 1;ibid.,Ann. 156, p. 943, para. 2.a. - 62-
Peru 209. And you also see how far from Chile's coast these projects extended- disproving, once
more, Peru's theory about sorne near-shore boundary arrangement.
79. A recent example is the mission by the German research vesse! Sonne, in 2002. This
involved a single research voyage, frrst through Chilean and then through Peruvian waters. So two
authorizations were needed there would be a single voyage, and two authorizations, and both
States knew that. Chile authorized the leg of the mission up to "the International Political
210
Boundary" . And Peru did not object to Chile's authorization, nor did it even reserve its position.
80. And Mr. President, Members of the Court, this illustrates the broader point here. The
broader point is that, since 1952, Chile is not aware of even one instance where Peru has purported
to authorize any scientific research activity south of the boundary parallel, either inthe waters or on
the sea-bed. Both Parties have respected the maritime boundary, in this activity as in ali others.
1. Peru's Airspace is bounded by the maritime boundary with Chile
81. The last aspect of practice that I want to touch on is jurisdiction in respect of airspace.
As our friends for Peru mentioned, control of airspace is a different subject from FIR, or Flight
211
Information Region zones • And although there is sorne FIR-related practice that is relevant to
this boundary, I will be focusing only on airspace this morning.
82. Since 1979, under Peru's Constitution, the national territory of Peru, territorio del
212
Estado, comprises both Peru's maritime dominion and the airspace over the maritime dominion •
And at ali times relevant to this case, Peru claimed "exclusive and full sovereignty" in its
·-·--··---------~ ·----·-----·-----·--····--·---------·-·-··-------·-----·-~----214-------···· -
settled matter. Thus, in 1966, Peru "denounced ... illegal incursions" that is a quote from the
Peruvian document- illegal incursions of its airspace by two Chilean airplanes above Peruvian
waters. Naturally, if the boundary were merely a provisional line ''to avoid conflicts between
209
See CMC, Vol. VI, Figures 31-33; RC, Vol. V, Figure 79.
210
CMC, Vol. III, Ann. 150, p. 917, para. 2.
211CR2012/28, p. 59, para. 21 (Bundy).
212See MP, Vol. Il, Ann. 17, p. 72, Art 97; CMC, Vol. IV, Ann. 179, p. 1099, Art. 54.
213CMC, Vol. IV, Ann. 185, p. 1132, Art. 3.
214/bid., Vol. III, Ann. 76, p. 565, first para. See ibid., paras. 2 and 4. - 63-
215
fishing vessels" , as Peru now says, Peru would not have felt entitled to make protests about
aerial incursions of its maritime boundary.
216
83. Peru requires authorization for "entry into, transit within and exit from" its airspace •
And to enforce this requirement, as in fact it does, Peru must know the perimeter of its airspace.
And Peru's authorizations are required to specifY the point, or points, at which an aircraft is to
cross the airspace boundary 217•
84. We have four such authorizations on record, from 2007 and 2008 - again, records of
this kind are kept only for a time, so it is difficult to go back in time. Ali these authorizations were
issued by Peru's Air Force for official flights ofChile's Governmenfl 8•
[Slide]
85. The diagram that is now on your screens and also under tab 87, illustrates one of the four
authorized flight paths. As you can see, the flight was described as a series of waypoints, which
are points on Peru's boundaries or airport codes. And you see that the flight ultimately crossed into
Ecuador, and then, overflying Peruvian aerial territory once more, exits from the south, returning to
Chile.
86. And there are three observations here.
First, in these four authorizations on the record, Peru authorized "flight over Peruvian
219 220
territory" or "flight inbound/outbound over Peruvian territory" : and "Peruvian territory"
is most certainly not a zone of limited fisheries jurisdiction.
Secondly, you see two entry/exit points on the Peruvian airspace. You see the first one in the
north, at the land boundary with Ecuador, this is point "PAGUR" in bold capitalletters. And in
the south, you see the entry/exit point, over Peru's maritime dominion, on the parallel of
Hito No 1. This is the more musically-sounding name, "IREMI". Now IREMI is also an FIR
point but, crucially for present purposes, IREMI is also an entry point into Peru's airspace.
215
MP, para. 4.106.
21CMC, Vol. IV, Ann. 185, p. 1132, Art. 21.1.
217See ibid.
218See ibid.Vol. III, Ann. 158 andibid.,Vol. VI, Figure 30.
219/bid.Vol. III, Ann. 158, pp. 958-959.
220
/bid.pp. 954-957. - 64-
Here, Peru authorized in express terms flight over "Peruvian territory". Peru did not authorize
flight through FIR Lima. Simply, IREMI was convenient shorthand, familiar to pilots and
air-traffic controllers, to notate a point, which is located on the boundary, without having to
cite a detailed setf co-ordinates and other details.
Thirdly, as you also see on the diagram, point IREMI is on the maritime boundary, sorne
90 miles to the west ofthe outer limit ofChile's EEZ and continental shelf. And you will hear
more about this from Mr. Colson this afternoon.
87. Now, to conclude, Peru has a concept of aerial territory to conclude this part of my
presentation, 1 hasten to say. To the south it is bounded by the maritime boundary. And
aircraftdo not fish.
88. Mr. President and Members of the Court, it is Peru's stated case that an all-purpose
maritime boundary is one that covers the sea, the sea-bed, the subsoil, and the airspace 221• The
practice 1traversed- and it was not an exhaustive account- concerns ali such entitlements:
sovereign control by navies,
maritime traffic,
fisheries,
submarine cables on the sea-bed,
scientific research inthe water-column and in the subsoil,
and airspace.
The practice meets Peru's own test.
J. Peru's defences
89. So, in the face ofsuch practice, what does Peru say? Basically two things.
90. The first Peruvian defence is the familiar deviee of"I say so", ipse dixit. Peru concedes,
of course, that a line in the sea has long been observed, and is in fact observed to this day: because,
on the facts, it would be perfectly pointless for Peru to deny this. So, perhaps as the lesser oftwo
evils, Peru attempts to downgrade the status ofthis line. And so Peru has contrived a theory; the
theory goes like this:
221
See RP, para. 4.25. - 65-
that the line arose at sorne time before or around 1954, but Peru will not tell us when 222; and it
arose from- 1 quote Peru now- "an informai practice ... not set out in any international
instrument" 223•
'
that this line was adopted not by the two States but- it seems - simply by fishermen 224;
225
and, Peru continues, it "assumed" - this is Peru's word- that it ought to observe the line,
in a spirit of self-restraint; and the theory continues
that the line concerned policing, "particularly" of fisheries 226, but also other matters that Peru
refuses to specify;
and, finally, the line applied in the territorial sea and "an adjacent area (of the high seas)" 227;
but, again, how wide that adjacent zone is Peru, again, refuses to explain.
Mr. President, Peru spends its time describing that which is not and denying that which is. What
does Peru have to back up its complicated theory, about an (1) informai, (2) provisional,
(3) near-shore, (4) mostly fisheries-related arrangement (5) between fishermen; (6) complemented
by a tacit practice of self-restraint? These descriptors appear nowhere in the objective
contemporaneous documents. They appear for the first and only time in Peru's pleadings.
91. And soto Peru's second defence- which is the Bâkula defence. You have already
heard about this. It is based on the Bâkula Note of 1986. This is a text that was penned no Jess
than 34 years after the Santiago Declaration 228• Peru says that the Note was "an explicit,
unequivocal, written assertion ... that no international maritime boundary between Peru and Chile
had been agreed" 229• Armed with this creative account of the Bâkula Note, Peru goes on to suggest
that the Parties' practice after 1986does not counr 30.
222
See MP,para. 4.105.
223/bid.
22See ibid.,paras.2.31and 4.105.
22RP, para.4.33.
226
MP, para.4.4.
227/bid.
228
/bid.,Vol. III,Ann. 76.
22RP, para.4.47.
23RP, para.4.45. - 66-
92. It would not be fair to the diplomatie labours of Ambassador Bakula to say that his text
was either unequivocal or explicit. The Court can read the document for itself, and we strongly
invite you to do so. We wish to make two simple points.
93. First, the Note does sit says expresslit "constitutes the flrst presentation, via
diplomatie channels, which the Government Peru formulates before the Government of
231
Chile ... • The "flrst presentation". And so, to put it another way, if the Bakula Note marked a
changein Peru's position-anthat is a very bigit was the flrst formulation ofthat change.
It comes 34 years after the Santiago Declaration, during which 34 years both Parties had
continuously observed their maritime boundary, and had represented to each other that they had a
legal obligation to do so.
94. But, and thisnow my second point, Peru is not right that there was a change in position
in 1986. There was something different: there was an invitation to initiate new discussions about a
settled boundaryThe Bakula Note recorded that it was thesonal message"2of Peru's
Foreign MinisterAnd one month after the Bakula Note, Foreign Minister Wagner (now the
distinguished Agent) made statements to the Press. These were carried bothlean and
Peruvian newspapers record. The Chilean Press reported the Minister's statement as follows,
"[I]n the Declaration of Santiago ... rules for the maritime delimitation were
established.
According to that treaty, the line of the parallels was established for that
delimitation ...
The ... use ofthe parallel, in the case ofPeru and Chile, allows Chilean flshing
·········: ···:::::=~~:::::::::::~:~~~vesseis::to:::::fislï~:~3o=xni.Ies:~off:: ·····-·--··ai1=coasts==anâ:..:tnat=is:::::wmn::::is.::intenâ~m::::to~15e==~==..:::
···---·-----···---corrected,Wa- 233gn-e-r-·co·n·cl·u·de-d·-~·-.···."-···---···-····--·--·---
95. The Press in Lima similarly reported that Minister Wagner said: "maritime delimitation
is a topic which 'cannot be avoided' since the present measurement system, based on the line of the
parallels, allows Chflshing vessels to flsh 30 miles off the PeruviaThese reports,
as far as we know, have never been disclaimed or by Peru's foreign ministry.
23MP, Vol. III, Ann. 76, p. 448, third para.
232
/bid., p. 446, penultimate para.
233
RC, Vol. III, Ann. 141, p. 883, last three paras.
234
/bid., Ann. 142, p. 887, fifth para. - 67-
96. So the position is clear. Peru appeared to wish to change the Santiago Declaration
boundary; and it invited Chile to a discussion. Chile did not follow up on that invitation. And, for
its part, Peru did not press the matter again. As a prominent Peruvian diplomat and former Foreign
Minister wrote, the Bakula Note was an "isolated event" 235•
97. And indeed it was. Thirteen years later, in 1999, the Foreign Affairs Committee of the
Peruvian Congress stated in its report that, after facilities for Peru had been completed in the
Chilean port of Arica, this bad "end[ed] any pending possible conflict with neighbouring
236
countries" • These words are just as emphatic as they are plain. And although Peru now alleges
237
that "[f]rom 1986 onwards ... [it] sought to initiate discussions" on delimitation with Chile , ali
that it can point to is the Bakula Note from 1986- the isolated démarchewhich led nowhere.
98. And what did Peru in fact do after 1986? Weil, it did much that confirmed the maritime
boundary.
As we have seen, in 1987 Peru defined the perimeters of its Maritime Districts observing the
238
"frontier boundary between Peru and Chile" - this, a year after the Bakula Note.
239
Peru also prosecuted Chilean nationals for fishing in "Peruvian jurisdictional waters" ,north
240
of "the dividing tine of the maritime frontier" . That was in 1989- tl1reeyears after the
Bakula Note.
Peru issued regulations for reporting entry into and exit from its maritime dominion and these
refer to "the jurisdictional parallel" of Hito No 1: that was in 1991, five years after the Bakula
Note.
And in 1995 - nine years after the Bakula Note now- the Chilean and Peruvian navies
agreed on a procedure to escort arrested fishing boats to the "international political
241
boundary" •
235
RC, Vol. IV, Ann. 183, p. 1237.
236
CMC, Vol. IV, Ann. 183, p. 1123, sixth introductory para.
237
MP, para. 8.7.
238
RP, Vol. III, Ann. 90, p. 558, Art. A-020301 (j).
239
CMC, Vol. IV, Ann. 176, p. 1072, third para.; ibid.Ann. 177, p. 1080, third para.
240
/bid., fourth para.ibid.Ann. 177, p. 1080, fourth para.
241
/bid., Vol. II, Ann. 21, pp. 197-198, Ann. "A", III. - 68-
99. Equally significant is what Peru did not do in response to Chile's continuing practice of
adhering to the boundary.
In 1988, Chile updated its officialDirectiand, as in the earlier edition of 1980, the
frrst edition after the boundary lighthouses, about which you have beard from Mr. Paulsson, the
Sailing Directireiterated "[t]he maritime boundary is the parallel of Boundary Marker
242
No. 1." The maritime boundary is the parallel of Boundary Marker No. 1. Plain. This was
two years after the Bakula Note, and Peru issuesn.
In 1992 Chile published a nautical chart which depicted the maritime boundary with Peru on
243
the Hito No 1arallel• Peru issues no reactioAnother Chilean chart indicating the
boundary followed 1994. Again, no reaction by Peru. A third map, in 1998, still no reaction
244
by Peru. Peru reacts for the first time•iPeru admitted that it was aware of these
245
charts, and the distinguished Agent confirmed this on Mon•And it reacted after
three charts and eight years.
Significantly, 2000, Peru was not prepared to state a claim to the waters south of the boundary
parallel. Peru was not prepared to take the position that there was no delimitation between the
Parties.Such a claim was not stated until August, and it was stated in the form of a
sketch-map4• That map paints an area of Chilean waters"area en controversior a
247
"disputed area• And, of course, this unusual and purely unilateral addition by Peru only serves
to highlight the reality of thethat until that time these waters were not disputed. So there
and then,n 2007, was there a change in Peru's position.
----==~==~====t_:()~.A~~=s~~~~r~~~I~siâ~1 tth~·e~=e~~bj~ec:tSiv_e!-e--n-e--~-~-~
the Parties' understanding and implementation of the Santiago Declaration and the 1954 Frontier
Zone Agreement lead? We submit it leads to only one conclusion: that the Parties did indeed
agree toan all-purpose maritime boundary in 1952 and acted upon it in the decades thereafter.
242
CMC, Vol. III, Ann. 133, p. 8ibiAnn. 135, p. 847, third para.
243
MP, Vol. IV, figs. 5.24, 5.25 and 7.3.
244
CMC, paras. 1.44-1.45.
24MP, paras. 5.25-5.27. See RC 2012/27, p. 20, para. 17(Wagner).
24MP, Vol. II, Ann. 24, p.ibiVol. IV, fig. 2.4.
24/bidVol. IV, fig. 2.4. - 69-
And, for good measure, both Ecuador and the international community at large had precisely the
same understanding of the position, as you will hear from Professor Dupuy this afternoon. This
concludes my presentation, and I am grateful you for your patient attention.
The PRESIDENT: Thank you, Mr. Petrochilos. The Court will meet again this afternoon
between 3 p.m. and 6 p.m., when Chile will conclude its first round of oral argument. Thank you.
This sitting is adjourned.
The Court rose at 12.55 p.m.
Audience publique tenue le vendredi 7 décembre 2012, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire du Différend maritime (Pérou c. Chili)