Corrigé
Corrected
CR2012/33
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2012
Public sitting
held on Tuesday 11 December 2012, at 10 a.m., at the Peace Palace,
President Tomka presiding,
in the case concerning the Maritime Dispute
(Pern v. Chile)
VERBATIM RECORD
ANNÉE2012
Audience publique
tenue le mardi1 décembre2012, à 10 heures, au Palais de la Paix,
sous laprésidencede M. Tomka, président,
en l'affaire dufférendmaritime
(Pérouc. Chili)
COMPTE RENDU -2-
Present: President Tomka
Vice-President Sepûlveda-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, juges ad 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 Se.cretary-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,
IlE. 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 of the 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;
-.--~--·-------~---··-- -···~----""""--·--·-"""·-······-··-·····-··---------.···~·-·-··-·-·----
Mr;--Eduardo·F -errero;member···ofthe··Permanent-CourtofArbitration;form
er·-Minister··forForeign
---··---· ------~-~·------Affairs; ofethoe~rPeruv iaenegatimno ti:RfTnircn::JN-conference on~tlreLa owtlï:eSea; ---
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 République du 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
auprèsdu 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 Châvez Soto, ambassadeur, membre de la délégation péruvienne à la
troisième conférencedes Nations Unies sur le droit de la mer, ancien conseiller du ministre des
relations extérieuressur les questions relatives au droit 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
internationalà 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 présidentde 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
sur le 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 Agüero 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 of the Ministry of Foreign Affairs on
Law of the Sea Matters,
Mr. Juan JoséRuda, member of the Permanent Court of Arbitration, Legal Adviserofthe Ministry
of Foreign 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 of the Ministry of Foreign
Affairs,
1-1 Mr. Alejandro Deustufia, M.A., Advisory Office for the Law ofthe Sea ofthe 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. 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
Ministry ofForeign Affairs,-- -
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. CésarTalavera, First Secretary, M.Sc., Embassy ofPeru in the Kingdom ofthe Netherlands,
as Advisers; - 7-
Mme Marisol Agi.ieroColunga, 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. Eran 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 ministèredes relations extérieures,
comme conseiller spécial;
M. Ramôn Bahamonde, M.A., bureau du droit de la mer du ministèredes relations extérieures,
M. Alejandro Deustua, M.A., bureau du droit de la mer du ministèredes 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 Valdez, 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 EvelyCamposSanchezEmbassyof Peruin theKingdomof theNetherlands,
Ph.D. candidate, Amsterdam Center for International Law, University
Ms Charis Tan, Advocate and Solicitor, Singapore, memberBar, Solicitor,
·England and Wales, Eversheds LLP, ··
Mr. Raymundo Tullio Treves, Ph.D. candidate, Max Planck Research School for Successful
Disputes Settlement, Heidelberg,
as Assistants.
The Government of the Republic ofChile 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 of Chile,
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, Ministry
Affairs, Professorat the Universityber 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. Jan Paulsson, President of the International Council for Commercial Arbitration, President of
the Administrative Tribunal of the OECD, Freshfields Bruckhaus Deringer LLP,
:::.:::::.:::::::.::::~:=:.::.: ~:_Qg.JJj::sJMJ!i:;::&,?al-i<,Gf_:,:_r~!lG9
. ·------___.of.California_and_the_D.i ·-r----of--·-o-·~lm···--···-·····-----
Mr. Luigi Condorelli, Professor of International Law, University of Florence,
Mr. Georgios Petrochilos, Avocat à la Cour and Advocate of the Greek Supreme Court, Freshfields
Bruckhaus Deringer LLP,
Mr.SamueTWordswc rërte-~rtn·Englisfi Bar, membër oBàr,Essex CoUrt
Chambers,
Mr. Claudio Grossman, Dean,dson Professor of International Law, American University,
Washington College,
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, Universitéd'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 différendsinternationaux, Heidelberg,
comme assistants.
Le Gouvernement de la République du Chili est représentépar :
S. Exc. M. Albert van Klaveren Stork, ambassadeur, ancien vice-ministre des relations extérieures,
ministère des relations extérieures,professeur à l'Universitédu Chili,
comme agent ;
S. Exc. M. Alfredo Moreno Charme, ministre des relations extérieuresdu Chili,
comme membre du Gouvernement;
S. Exc. M. Juan Martabit Scaff, ambassadeur du Chili auprèsdu 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'liistitut de droit
international,
comme coagents ;
M. Pierre-Marie Dupuy, professeur à 1'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 of Chile,
H.E. Mr. Luis Winter, Ambassador, Ministry ofForeign Affairs,
Mr. Enrique Barras Bourie, Professor,University ofChile,
Mr. Julio Faùndez, Professor, University of Warwick,
Ms Ximena Fuentes Torrijo, Professor, University ofChile,
Mr. Claudio Troncoso Repetto, Professor, University ofChile,
Mr. Andres Jana, Professor,University ofChile,
Ms Mariana Durney, Legal Officer, Ministry of Foreign Affairs,
Mr. John Ranson, Legal Officer, Professor oflnternational Law, Chilean Navy,
Mr. Ben Juratowitch, Solicitor admitted in England and Wales, 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, Ministry of Foreign Affairs,
Mr. Antonio Correa Olbrich, Counsellor, Embassy ofChile in the Kingdom of the Netherlands,
Mr. Javier Gorostegui Obanoz, Second Secretary, Embassy of Chile in the Kingdom of the
Netherlands,
Ms Kate Parlett, Solicitor admittedn England and Wales and in Queensland, Australia,
Ms Nienke Grossman, Assistant Professor, University of Baltimore, Maryland, member ofthe Bars
ofVirginia and the Districtf Columbia,
:~.=-~~:_:::~:::::::::::::
~~----- ~~-Ms-Alexandravan-derMeulen,-Avocat-à-la-Gour-and-member-oHhe-Bar ----f--h~--State-of-NewYork;
Mr. Francisco Abriani, member of the Buenos Aires Bar,
Mr. Paolo Palchetti, Associate Professor oflnternational Law, University ofMacerata,
as Advisers; _
Mr. Julio Poblete, National Division ofFrontiers and Limits, Ministry of Foreign Affairs,
Ms Fiona Bloor, United Kingdom Hydrographie Office,
Mr. Dick Gent, Marine Delimitation Ltd.,
as Technical Advisers. - 11-
S. Exc. M. Heman 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 Faundez, 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 Dumey, conseiller juridique au ministère des relations extérieures,
M. John Ranson, conseiller 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 open. The Court meets
today to hear the arguments and rebuttal by the Republicu.
I cali on Professor Vaughan Lowe. You have the floor, Sir.
Mr.LOWE:
EVENTS AND INSTRUMENTS OF 1947-1954
Introduction
1. Thank you, Mr. President, Members of the Court: the first round pleadings have clarified
our positions somewhat. We say that there is no maritime boundary betweenu and Chile, and
ask you to draw one in accordance with international law.And Chile says that there is an
agreement, and offers no further comment on our case.
2. Logically,hile's objection cornes first; and we will meet it head on.
3. 1 shaH respond to Chile's argument that the three States met in 1952 and concluded an
agreement that established international maritime boundaries, confirmed in 1954.
Sir Michael Wood will respond to Chile's reliance upon the use of the parallel in the practice of
States in later years. Professor Treves will answer Judge Bennouna's question, and show that the
historical context reinforces the legal conclusion that the Santiago Declaration cannot credibly be
said to have established international boundaries. Mr. Bundy will respond to points made about the
land boundary and about Ecuador, andProfessor Pellet will close our presentation by responding
:::Qn1b~_QJit~r1riAngi~;:Jlnd:s!.lmmarizing:oJ~Ccase;before:_ourAgentmakes_ourJormal::submission~~=~:-
The legal context
4. Chile has emphasized that:
"It is not Chile's case that the practice of theP~ti- i~~~iQ~ _~iJC~.cc;i)tS
agreement. It is not Chile's case that the practice of the Parties is constitutive oftitle
to maritime zones. And it is not Chile's case that the practice of the Parties is a
1
relevant circumstance in drawing the maritime boundary de nova or ab initio."
1
CR 2012/31p41 (Petrochilos). - 13-
5. In positive terms, Chile's case, repeatedly made, is that a boundary agreement was
2
concluded in 1952. On Thursday, Professor Crawford referred to "agreements" in the plural and
to a boundary delimited by agreement "in 1952 or in 1954" 3,but that must have been a slip of the
tongue. Its pleaded case is that the boundary was agreed in 1952 and "confirmed" in 1954.
6. There has been discussion of the status of the Santiago Declaration. But more important
than the question whether it is oris not a treaty is the question ofwhat it actually says. Indeed, our
observations on its status were largely directed to the point that, at the time of the adoption of the
momentous declaration of international maritime policy, neither Chile nor Peru treated the
Declaration as if it had any great legal significance, let atone the historical significance of a
permanent, binding agreement with a neighbouring State on the line of an international boundary.
7. The Court has in front of it three main blocks of material: the Santiago Declaration; the
minutes of the 1952 and 1954 conferences; and a body of practice in which the parallel has been
referred to by the Santiago signatory States. What is the significance of this material for Chile's
claim that an international boundary was agreed in the 1952 Santiago Declaration?
8. Chile refers to its significance under Articles 31 (2) (a), 31 (3) (a), and 31 (3) (b), and
generally under Articles 31 and 32 of the Viem1aConvention on the Law of Treaties.
9. Obviously, one starts from Article 31 (1), with interpretation, and the principle that, as you
put it in Libya/Chad, "[i]nterpretation must be based above ali upon the text of the treaty"
(Territorial Dispute (Libyan Arab Jamahiriya/Chad, Judgment, IC.J. Reports 1994, p. 22,
4
para. 41).
1O.My first pointis that one gives effect to the terms of the treaty- to the text as written, as
signed by the parties: not to what the text might have said. Interpretation is not an opportunity to
write into a treaty terms that are not there, or to elevate hopes or assumptions about how States
parties might act in future to the status oftreaty obligations.
2CR 2012/30, p. 74, para. 11.4 (Crawford).
3
/bid., para. 11.7 (Crawford).
4See also Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995p. 18, para. 33Legality of Use of Force (Serbia and Montenegro v.
Belgium), Preliminmy Objections,Judgment, I.C.J. Reports 200p. 318, para. lOO. - 14-
11. Chile is saying that the Court should, by reference to supplementary materials, write into
point II or pointIV of the Santiago Declaration- 1imagine that Chile would be content for you to
write it in to any convenient paragraph in the Declaration provisions that do not appear in the
Declaration, that are not referred to in the Declaration, and that are not needed in order to give
effect to the Declaration.
12. How this differs from a tacit agreement, 1 do not know. But in any event, the
supplementary materials do not support the interpretation for which Chile contends.
13. It is not necessary to respond to every point made by Chile, though we maintain ali of
our previous submissions; nor do we need to draw your attention to every point to which Chile
makes no response, such as the fact that when Chile ratified the Law of the Sea Convention in
1997- 1997- it specifically notified the United Nations of its maritime boundary with
Argentina but said nothing at ali of any maritime boundary with Peru 5•
14. 1 will not repeat our submissions relating to the terms of Chile's invitations to the
Santiago whaling conference, to the sessions that in 1952 settled in the space of around 24 hours
the text, contained within a declaration on international maritime policy, that Chile says constitutes
an international boundary agreement. And a text which, by a curious historical coïncidence, was
adopted at the very moment that my mother, on the other side of the world, went into labour before
my birth.
15. But I do ask you to pause and consider the implications of the terms of the invitations
and of the organization of the conference for a good-faith interpretation of the Declaration. Who
whaling? Who thought that they were agreeing on specifie boundary lines, rather than on the
treatment of the maritime entitlement of islands? If no one did, what is the basis for writing in an
implied tenn on mainland maritime boundaries?
16. Chile did not rebut our point that Peru and Ecuador were invited to a conference on
whaling, and that when they left the conference they did not be lieve- and had no reason to
be lieve- that they had made an international treaty establishing two maritime boundaries.
5
http://www.un.org/Depts/los/conventagreements/convention declarations.htm#Chile%20Statement%20mad
e%20upon%20signature%20%28l 0%20December%20 l982%29%20and%20confirmed%20upon%20ratification%20%2
825%20August%20 1997%29. - 15 -
17. I shall retum to the Vienna Convention Articles shortly; but before I do so, please let me
say plainly what we understand to have happened in Santiago in 1952.
The Santiago Declaration
18. [Siide] In mid-1945, exclusive fishing rights, restricted to the nationals of the coastal
State, were generally regarded as limited to a narrow belt of territorial sea, between 3 and 12 miles
wide, with a high seas freedom of fishing beyond.
19. [Siide ] Later in 1945, the Truman Proclamation on fisheries asserted a right to establish
explicitly-bound zones, with no maximum breadth specified, in which fishing would be regulated.
20. And in 1946, the International Whaling Commission was discussing measures that could
limit whale catches.
21. These events in the United States and in the International Whaling Commission
threatened to deflect [Slide] fishing effort from the north-east Pacifie to the south-east Pacifie, and
to increase pressure on whale and fish stocks there.
22. Unilateral steps taken to assert exclusive rights over marine resources were taken by
Mexico in 1945, in 1946 by Argentina, and in 1947 by Chile and Peru.
23. The Santiago Declaration was adopted in 1952. And you have it, again, in tab 90.
[Siide]
"In the light of these circumstances, the Governments of Chile, Ecuador and
Peru proclaim as a norm of their international maritime policy that they each possess
exclusive sovereignty and jurisdiction over the sea along the coasts of their respective
countries to a minimum distance of200 nautical miles from these coasts."
24. That is what Santiago Declaration point II says. And that is the entirety ofwhat Santiago
Declaration point II said.
25. So, how does that work in practice?
Point II and Chile's draft
26. [SIide] If you walk along the low-water mark on the coasts of Ecuador, Peru, and Chile
and, in accordance with Santiago Declaration point II, claim 200 miles from each point on the
coast, you get three 200-mile zones, which overlap. - 16-
27. The intuitive reaction may be [slide] to draw equidistance tines to separate the national
zones.
28. Who is it who questions this position? is Ecuador. It is not Chile; it is not Peru: it is
Ecuador. That is common ground.
29. You will recall the history. The Minutes of 11 August 1952 record the text proposed by
Chile. It is in our Memorial, Annex 56, and tab 93 in your bundle.We translated the parts to
which we referred in our pleadings, but did not translate the parts to which we did noter
though we did submit the whole of this and every other document to the Court's registry. 1will use
6
Chile's new translation, althoughru considers its Iater translation to be more accu[Slide]
30. Chile's draft-and 1emphasize, ChiZe'sdraft set out the general rule of international
maritime policy asserting exclusive sovereignty or jurisdiction over the sea-bed in Articlet
extended that to the superjacent waters in Article 2.
31.Neither of those Articles specified geographicallimThat was done in Article 3.
32. Article 3, paragraph, in the Chilean draft said:"The zone indicated comprises ali
waters within the perimeter formed by the coastsof each country and a mathematical parallel
projected into the sea to nautical miles away from the mainland, along the coastal fringe."
33. That is what Chile called a tracéparallèlea traced replica of the coastline projected
into the sea00 miles away from the mainland. There is no mention in Chile's proposai of the
parallelf latitude as a lateral boundary.
34.[Siide] lncidentally, Mr. Colson said that it was possible to achieve a minimum distance
~----- -~~---__2002m[iles !>Y_!lsing_thetracéparallèle method. But that is not correct. On this coastlineLqlL____
parts of Peru's tracéparallèle lie Jess than 200 miles from the shoreYou can only get to a
minimum distance of 200 miles by shifting the tracéparallèle something like 370 miles from the
coast. But let me get back to point.
35.So, Chile proposed a 200-mile zone, with no mention of a boundary along the parallel.
Chile also proposed two further paragraphs in Article 3, following paragraph, to address the
positionf islands. Neither of them mentions a boundary along the parallel, either.
6
"Complete and Revised Translations Submitted by the Government ofChile", 20 Nov. 2012. - 17-
36. One said: "In the case of island territories, the zone of 200 nautical miles will apply ali
around the island or island group."
37. The other said:
"If an island or group of islands belonging to one of the countries making the
declaration is situated at less than 200 nautical miles from the general maritime zone
belonging to another of those countries, according to what has been established in the
first paragraphof this Article, the maritime zone of the said island or group of islands
shall be limited, in the corresponding part, to the distance that separates it from the
maritime zone ofthe other State or country."
38. That was the Chilean draft. Exclusive zones, minimum breadth of 200 miles. No
mention of international boundaries along a parallel. Special provision for islands. That was what
Chile would have been content with; but that was what Ecuador was not content with.
The problem for Ecuador arising from Chile's draft
39. Why should Ecuador have been concerned?
40. [Slide] Weil, as Chile bas pointed out/ 200 miles was a minimum distance. Suppose it
was extended, to 300 or 400 miles. What happens?
41. You can see on the slide that the Galapagos archipelago is caught right in the cross-hairs
of the equidistance line. If that line had been projected from the Peru/Ecuador border, the
Galapagos would have lost around one-third of its maritime zone- an area equivalent to the
whole ofEcuador's mainland zone. That was the risk under Chile's proposed text.
42. Chile's draft said that islands can have maritime zones that reach up to the mainland
maritime zones but must not encroach upon them, must not cause interference with them. That
might look reasonable in abstract, but not when one looks at the actual configuration of these
coasts- a weakness in the Chilean draft that was perhaps excusable in a text prepared for a
conference on whaling but would have been very surprising in an international boundary
negotiation.
43. That is not a point to be taken lightly. There is absolutely no evidence that the people
discussing the Declaration had any maps before them- astonishing, if the meeting bad been an
international boundary negotiation.
CR 2012/30, p. 14, para. 3.2 (Van Klaveren). - 18-
44. Point IV is not about holding back island claims- why would Ecuador have insisted on
adding an express provision that its own islands could never generate maritime zones reaching
below the parallel with Peru? It makes no sense. You may wish to ask Chile how it could possibly
explain that point. Point IV is about protecting the maritime entitlement of islands.
45. It makes perfect sense for Ecuador to be concerned to ensure that the "group of islands"
in the Galapagos- there are no other "groups of islands" that this could plausibly refer to-
wouIdat least maintain a reasonable share of its maritime zone.
46. [Slide] What about Ecuador's other islands? Look at the mainland coast. The
Ecuador-Peru land boundary lies inside the Gulf of Guayaquil.
47. [Slide] An equidistance tine drawn from the mainland coasts of Ecuador and Peru runs
upwards towards the middle ofthe Gulf, partly cutting offEcuador's access to the Gulf.
48. [Stide] But Ecuador's Isla Santa Clara hasan important effect. If the median tine drawn
from Santa Clara is taken into account, the eut-off effect is much reduced, though still present.
49. That was Mr. Fernandez' point- and a very shrewd one, too. Ecuador wants its islands
to maintain fair entitlements to maritime zones, and not simply tohave- as Chile had proposed
~ha\,..\...,..~
H whatever was left after the&ITIRFitiffietzohasd carved out their shares of the area.
50. That is the sequence. Chile presents its draft. Then:
"Afterwards, Mr. Fernandez observed that it would be advisable to provide
more clarity to Article 3, in order to avoid any error in the interpretation of the
interference zone in the case of islands, and suggested that the declaration be drafted
on the basis that the boundary tine of the jurisdictional zone of each country be the
respective parallel from the at which the frontier of the countries touches or
-"""" " - " ~ " " " " " " " " " " " " " " " " " "
"--""~~reac11es -=t11e:sea:''~=-"
8
And then: "Ali the delegates were in agreement with that proposition."
Point IV
51. That is what gave us point IV:
"ln the case of island territories, the zone of 200 nautical miles shall apply to the
entire coast of the island or group of islands. If an island or group of islands
belonging to one of the countries making the declaration is situated less than 200
nautical miles from the general maritime zone belonging to another ofthose countries,
8
Minutes of 11 August 1952, in "Complete and Revised Translations Submitted by the Govemment of Chile",
20 Nov. 2012. - 19-
the maritime zone of the island or group of islands shall be limited by the parallel at
the point at which the land frontier of the States concerned reaches the sea."
52. [Slide] How does this work? In the case of Santa Clara, the Peruvian claim does not eut
off access to the Gulf of Guayaquil. Santa Clara's entitlement runs down to the parallel.
53. [Slide] In the case of the Galapagos, ifthe zone extended beyond 200 nautical miles,
point IV would have limited the encroachment of any Peruvian extension of its mainland zone.
9
That is what Chile called our "highly improbable and impractical" line •
54. [Slide] It is similar to the way in which this Court limited the effect of Nicaragua's
mainland zone upon the entitlements of Honduras in the Nicaragua/Honduras Judgment in 2007.
"If the zone is extended ... "
55. ".ifthe zone extended ... " In fact it was not extended beyond 200 nautical miles; but
that was the contingency that point IV was directed to: "if an island or group of islands belonging
to one of the countries making the declaration is situated less than 200 nautical miles from the
general maritime zone belonging to another ofthose countries ... "
56. The drafters did not put in that conditional phrasing- if an island- because they were
unsure where the islands were though I must say that Chile's picture of a 24-hour international
conference to negotiate two international maritime boundaries, without reference to maps and
without the delegates being terribly sure ifthere were any relevant islands around, is not without a
certain entertainment value.
57. Chile says- in its Rejoinder, paragraph 2.64:
"The truth is, Peru stands Article IV of the Santiago Declaration on its head.
The provision does not 'protect' insular zones'. It does the converse. It preserves
continental maritime zones up to their full extent, i.e., up to the boundary parallel,
confining any overlapping insular zones to the other side of the boundary parallel."
58. But Chile's position makes no sense at ali, given that it was Ecuador that promoted
point IV, after the Chilean draft itself had made no provision for the extension of island zones to
the parallel.
9RC, para.2.62. -20-
Point IV at the Peru-Chile border
59. Chile says that point IV was also directed at the Chile-Peru boundary. So, let us see how
that works.
60. [Slide] Chile refers to the Chilean island of Alacrân, and the Peruvian islet of Blanca.
Alacrân island was around 0.06 sq km and Blanca is around a third ofthat size.
62. [Slide] With or without the islands, we would have overlapping mainland claims.
62. [Slide] If we add in the islands of Alacrân and Blanca, it has no effect whatever. The
reason is plain: 200-mile zones drawn from the islands do not extend any further than the edge of
the 200-mile zone drawn from the mainland. The base points that control the outer edge of the
200-mile arcs of circles lie on the mainland, and not on the islands. It is obvious that features close
to the coast, such as Alacrân and Blanca, which are little more than detached rocks a few hundred
metres from shore, were not the problem at which point IV was aiming.
63. [Slide] Professor Crawford sought to explain it away on Thursday. His explanation
appears at paragraph 3.19 on page 48 of the transcript, referring to an animated slide that found its
resting place as tab 41 of the bundle.. He said that the first sentence of point IV would give Blanca
a radial projection of 200 miles, but that "the effect of the second sentence of Article IV is that the
insular maritime zone is truncated at the maritime boundary, and so actually looks like this, a
maritime boundary which is apparently non-existent". That was irony!
64. The same, he said, applies to the Chilean island of Alacrân. "The first sentence of
point IV would give it a radial projection like this. Obviously, that would be unacceptable. Hence
non-existent like this."
65. But Professor Crawford's explanation only makes sense if the entitlement to the
maritime zone depends entirely upon the island- Alacrân or Blanca- and completely ignores
the effect of the mainland behind it- aview that he did, indeed, expressly adopt 10• But that isnot
the case. It is not the radial projection of the island that generates the overlap: the overlap is
created in any event by projecting a 200-mile claim from the mainland coasts.
10
CR 2012/30, p. 48, para. 3.18: "Insular projections needed special attention, because it was only they that
created theverlap." (Crawford) - 21 -
66. lt simply makes no sense to regard point IV as designed to preserve a boundary along the
parallel between Peru and Chile by limiting the maritime zones of islands. lt is the mainland coasts
that produce the overlapping entitlements, not the islands.
67. Chile may weil accept this. It said in its Rejoinder in July 2011, at paragraph 2.72, in
relation to Alacnin and Blanca,
"These small islands are mentioned here for the sake of completeness. None of
them was mentioned in the negotiating record related to the 1952 Santiago
Declaration. Nor were any of the islands shown by Peru on Figure 2.2 of its
Memorial, which Peru now says distinguish the Ecuador-Peru situation from the
Chile-Peru situation. The only islands that were mentioned in the context of the
Santiago Declaration were Ecuador's Galapagos Islands, which would only have
become relevant to issues of lateral delimitation if Peru had extended its maritime
zone further seaward, as it was permitted to do under Article II of the Santiago
Declaration."
68. Itis not quite accurate- it ignores the position in the Gulf of Guayaquil- but the
comment about the Galapagos is sound. Point IV makes sense as an accommodation ofEcuador's
concern to protect the entitlements of its islands. lt makes no sense otherwise.
The Santiago Declaration cannot effect a delimitation
69. I have taken you through what we say point IV actually does. This is the effect ofwhat
its words say. And in our view, its words say no more, and have no further effects.
70. There is a general, but important, point here. If the Santiago Declaration were given to a
group of cartographers, with the instruction that they go out and draw maps to implement it, what
couid they produce? Even if we ignore the possibility of extending beyond the 200-mile minimum,
the Declaration only gets as far as saying that there are 200-mile claims from mainlands and
islands. The Declaration contains no wording on how to deal with boundaries or delimitation.
71. There are no island claims that would push the zone as measured from the mainland
alone beyond a parallel so as to interfere with a zone of another State- the Galapagos are more
than 400 miles from the mainland, and the little islands along the mainland coast produce no effect
that is not produced by the mainland itself. So there is nothing for point IV to bite on.
72. If Chile really believes that points II and IV of the Santiago Declaration constitute an
international maritime boundary agreement, let them explain to you how anyone, given only the
text of the Declaration, could draw the maritime boundaries of the three States on a map. Let them -22-
take you through it, step by step, word by word, relying on points II and IV. We say that they
cannot do it.
73. [Slide] As Mr. PefiaPrado and his colleagues on the Foreign Affairs Committee of
11
Peru's Congress said in 1955 , the Santiago Declaration is, as Peru's Ministry of Foreign Affairs
had stated, a declarative document that establishes principles, that defines the international
maritime policy of the tluee sovereign countries, and which extends the 200-mile claims to insular
territories.
Treaty interpretation
74. But Chile says, do not just look at what the treaty says. Be more imaginative. Look at
what the supplementary materials show. Look at points II and IV in the overall context of the
who le scheme oftreaty interpretation under the Vienna Convention.
75. The context, it says, includes any agreement relating to the treaty which was made
between ali the parties in connection with the conclusion of the treaty: Vienna Convention
Article 31 (2) (a).
76. Chile also points to Article 31 (3) (a), which says that there shall also be taken into
account any subsequent agreement between the parties regarding the interpretation of the treaty or
the application of its provisions.
77. And it refers to the subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation, in accordance with Vienna Convention
78. Those are the three provisions to which Chile refers. But bear in mind what it is that they
are seeking to establish.
79. First, that you must write into point II or IV of the Santiago Declaration a provision that
says, in addition to the effect of point IV in respect of the maritime entitlements of islands, the
parallel of latitude shall in ali other geographical contexts serve as the maritime boundary between
neighbouring signatory States for the purposes of the Santiago Declaration.
11
RP, Ann. 6, and tab 99. -23-
80. Second, they say that you must also write in a provision that says, notwithstanding the
reference in point II to the circumstances that led to the Santiago Declaration, the boundary along
the parallel will be applicable permanently and for ali purposes as the definitive international
political boundary betweenthe States in question.
81. Weil, that is a heavy load for the words of point II and point IV to bear. And it is a lotto
ask as a consequence of "taking into account" these extraneous materials when reading the actual
words of the Santiago Declaration.
82. Chile also suggests that the context includes what Professor Crawford called the
"concordant unilateral proclamations in which they claimed sovereignty over areas extending
200 nautical miles to sea that abutted perfectly and did not overlap" 1• Mr. Colson said that the
13
Santiago Declaration preserved the 1947 status quo between Chile and Peru • It is not quite clear
where that fits underthe Vienna Convention; but let me deal with the point.
83. Chile's 1947 Presidential Declaration- Memorial, Annex 27- proclaimed national
sovereignty over the continental shelf and seas adjacent to Chile's coast, without limitation of
distance or depth- that is in paragraphs 1 and 2 of the Declaration. Then it said: "protection and
control is hereby declared immediately" out to 200 miles, measured by a mathematical parallel, in
protection zones for whaling and deep sea fishery- that is paragraph 3. Chile had an indefinite
claim to national sovereignty coupled with immediate 200-mile whaling and deep sea fishery-
not coasta! fishery: deep sea fishery- zones.
84. Peru's Supreme Decree- Memorial, Annex 6- proclaimed not "national sovereignty"
but "sovereignty and jurisdiction" over the continental shelf, and over the superjacent waters "to
the extent necessary to protect, maintain and utilize natural resources". It expressly reserved the
right to modizy and extend zones in future, but declared that it would exercise "control and
protection" of natural resources out to 200 miles measured as a tracéparallèle from the mainland
and by arcs of circles from islands. Peru had, not a whaling and deep sea fishing zone, but
200-mile zones of sovereignty andjurisdiction over ali resources.
12
CR 2012/30, p. 72, para. 11.1 (Crawford).
13CR 2012/32, p. 30, para. 2.4 (Colson). -24-
85. Neither Chile nor Peru stipulated any co-ordinates, said anything about international
boundaries, or indicated how overlapping claims should be resolved.
86. Chile may say, "weil, they are close enough". But that is not good enough. If
"concordant" is meant to suggest that these were parallel laws slotted into place to provide
systematic, co-ordinated legal coverage of the South American Pacifie coast, the suggestion is
simply not correct.
87. But let me turn to Chile's argument that there is another agreement that bears upon the
·interpretation of the Santiago Declaration, and which must be taken into account under the Vienna
Convention.
Vienna Convention on the Law ofTreaties, Article 31 (2) (a)
The 1952 Minutes
88. What is the aileged agreement under Article 31 (2) (a)? Chile says, the Minutes of
11 and 12 August 1952. Weil, we have ali, no doubt, occasionally referred back to minutes of
meetings that we have attended, and will have a view on their utility as aceurate reflections of what
happened. But these Minutes are special.
"The Minutes, Acta in the original Spanish, were not merely preparatory works
ofthe kind to which reference is optional under Article 32 of the Vienna Convention.
They recorded agreements relating. to the il1térpretationof the Santiago Declaration
made in connection with its conclusion. Recourse to them as part of the context is
mandatory under Article 31 (2) (a) of the Vienna Convention."
So said Professors Crawford and Condorelli 14•
---~----~--~--89;-'Fhere-is-no-authority-for-that-characterization-of-the -- areas-of-agreement-recorded-in-the----
Minutes; but put that point aside.
90. There is also some confusion in Chile's submissions over what the Vienna Convention
15
says • Agreements on the interpretation or application of a treaty are not part of its context, under
Article 31 (2): they are additional materials, covered by Article 31 (3). But put that point aside, as
weil. Chile misstates the law; but it is the facts that are decisively against it.
14
CR 2012/30, p. 50, para. 3.27 (Crawford). See also, CR 2102/32, p. 49, para. 18, p. 53, para. 28, p. 55, para. 35
(Condorelli).
15
See CR 3012/32, p. 46, para. 8, p. 51, para. 22, p. 53, para. 28, p. 55, para. 35 (Condorelli). - 25-
16
91. What is the alleged "agreement"? I will use Chile's version of this exhibit ,to avoid
any problems. Professor Crawford says that it is the suggestion made by Mr. Fernandez that "the
declaration be drafted on the basis [that] the boundary line of the jurisdictional zone of each
country be the respective parallel from the point at which the frontier of the countries touches or
reaches the sea" 1• That was done, as Mr. Fernandez said, "in arder to avoid any error in the
interpretation of the interference zone in the case of islands".
92. And so it was. That is it: there is nothing more in the Minutes. The relevant part of the
Declaration- point IV- was redrafted. The provisions refer to islands, and only to islands. The
Declaration was not redrafted to say that mainland boundaries follow the parallel.
93. Ifthere bad been an understanding that international boundaries had been agreed on that
Tuesday in August 1952, and that they applied in ali geographical circumstances, including to
mainland coasts, it would not have been necessary to single out islands for special treatment in
point IV. But you have that point.
94. The 1952 Minutes do not support the conclusion that you should imply a term on
maritime boundaries into the Santiago Declaration under Article 31 (2) (a) of the Vienna
Convention.
The 1954 Minutes
95. Professor Crawford next tries to use the Minutes of one of the commissions at the
8
1954 Conference to get you to the same poine . This is one of a number of signs that Chile is
trying to shift away from its reliance upon the 1952 Declaration.
96. The alleged agreement here is the phrase "the tluee countries bad agreed on the concept
of a dividing line of the jurisdictional sea". You will recall the slide at his tab 42. And, again, I
shall use Chile's version of this exhibit 19•
1Minutes of 11 August 1952, in "Complete and Revised Translations Submitted by the Govemment of Chile",
20Nov. 2012; CR2012/30, p. 51, para. 3.35 (Crawford).
1CR 2012/30, p. 51, para. 3.35 (Crawford).
1/bid.,p. 60, para. 4.27 (Crawford).
1"Complete and Revised Translations Submitted by the Govemment ofChile", 20 November 2012. -26-
97. There are a few comments in the 1954 Minutes that might be relevant, such as the
Peruvian proposai to use the term "Maritime Zone" in the draft because it would "encounter less
resistance in the international community than the term Territorial Sea". The Chilean delegate said
that he did not see any difference between the concepts, or the terms, "maritime zone" and
"territorial sea". And this might suggest that the focus was more on maintaining a common front
against third States than on creating national maritime zones.
98. But the key passages, on which Chile relies, are the five paragraphs dealing with
Mr. Salvador Lara's request for the inclusionmentary Article clarifying the concept of
the dividing line of the jurisdictional sea.
99. Those paragraphs say less than Chile might wish. The delegates of bath Peru and Chile
said that "Ar4iof the Declaration of Santiago is sufficiently clear and does not require a new
exposition". And as we know, point IV is expressly confined to islands.
100. Mr. Salvador Lara "insists on his belief that a declaration to that effect be included in
the Convention, because A4tof the Declaration of Santiago is aimed at establishing the
principle of delimitation of waters regarding the islands".
101. That is ambiguous. It might mean that because point IV secures the position of islands,
the same should be done in this 1954 Agreement; or, it might mean that because point IV secures
the position of islands, a wider principle, applicable also to mainland coasts, should be set out in
this Agreement.
102. But whichever interpretation iand we are unlikely ever to neither
.~~=~=-~-~•~•-·-~~==-Jiït~fRi~ati.On~~gges~JI1af[JQf!l.:f!Y.:97111~I9J~pecl~at!ci~:''Yas-rigirCieCITni9-54asi_n_~g~§_meiït~-----
on the delimitation of mainland maritime zones, binding on the three participating States.
103. Mr. Salvador Lara says "that if the other countries consider that no explicit record is
necessary in the Convention, he agrees to record in the Minutes that the three countries consider the
matter on the dividing linee jurisdictional waters resolved and that [the] said line is the
parallel starting at the point at which the land frontier between bath countries reaches the sea".
You will notebath countries. - 27-
104. Mr. Llosa for Peru agrees "but clarifies that this agreement was already established in
the Conference of Santiago, as recorded in the relevant Minutes as per the request of the Delegate
ofEcuador".
105. If I may mention in passing the next paragraph in the Minutes, you will see that the
Secretary of the Permanent Commission says of the provision in Article 6 of the 1952 Resolution
on the Permanent Commission, which authorizes the parties to denounce the Agreements upon one
year's notice, that it "must be understood as applying to the other three Agreements of Santiago".
I think that Professor Crawford misunderstood our point on this. It is not that we are asserting that
there is a right to denounce a boundary agreement. Our point is that if there is a provision for the
denunciation of an agreement, it is very unlikely that that agreement is one that establishes a
permanent international boundary.
106. Chile also directed you to the Minutes relating to the Second Session of Commission I
of the 1954 Conference as another example of an "agreement" within the meaning of Vienna
Convention Article 31 (2) (a). Here the alleged "agreement" was the clarification offered by
Mr. Salvador Lara to the Minutes of the First Session "concerning the concept of the dividing line",
that "the Chairman had not proposed recording in the Minutes the statement made by the Delegate
of Ecuador but that the three countries had agreed on the concept of a dividing line of the
jurisdictional sea".
107. No suggestion that it should be amended to say that the maritime boundaries of the
three States had been settled two years earlier; no suggestion that the Minutes should record that
the three States agreed to apply the point IV provision on islands to mainland coasts. Nothing,
nothing, to take us any further than the previous Minutes.
108. So, even if these travaux préparatoires are elevated to the status of Article 31 (2) (a)
agreements as Professors Crawford and Condorelli wish, when one stops to read them to see what
they actually say, they do not carry Chile's case forward.
109. And the 1954 Agreement on the Special Zone itselfis, as we have said, a good example
of the development of a practical arrangement to use an easily identifiable line for the purposes of
fisheries policing. Its Preamble makes clear its purpose- avoiding friction arising from small
fishing boats on the "high seas" - yes, it actually says "high seas" - small fishing boats that -28-
might not know exactly where they are. It builds on an understanding that plainly predates the
1954 Agreement. It does not purport to change the character of any of the declarations made and
agreements concluded at Santiago in 1952; and it supplements not simply points II and IV of the
Santiago Declaration but al! of the agreements made in 1952. So, the question remains, did the
1952 Santiago Declaration establish two international political boundaries, or did it not?
VCLT, Article 31 (3) (a)
11O.Professors Crawford and Condorelli 20 also referred to Article 31 (3) (a) of the Vienna
21
Convention, on taking into account subsequent agreements in interpreting treaties ; but their
arguments, and their materials, were the same as those that 1have already discussed- chiefly, the
1954 Minutes, which they sought to invoke under Article 31 (3) rather than 31 (2). So the points
that 1have already made are good against that claim, too.
VCLT, Article 31 (3) (b)
111. That leaves Article 31 (2) (b) - "subsequent practice" as an aid to interpretation.
Sir Michael Wood will address that point in a moment; but the short pointis that Chile has not yet
turned its attention to the question that is critical for its case.
112. When there is a reference to a parallel, in a regulation or a letter or whatever, what does
it signify? What does it evidence? Does it show that the State concerned is referring to the parallel
as an agreed legal boundary or might it be more in the nature of a provisional tine, or of a line for a
specifie, limited purpose, such as sharing a scarce resource the words are yours from the
113. Does the assertion of jurisdiction over the sea-bed necessarily imply the assertion of
jurisdiction over superjacent waters? No- the Truman Proclamation is an example of a clear
distinction. Does the exercise of jurisdiction at sea in customs, fiscal, immigration and sanitary
matters imply a claim to sovereignty? No- that is why the contiguous zone is distinct from the
territorial sea, in the 1958 and .1982 Conventions and in customary international law. Does the
2°CR 2012/32, pp. 46-47 para. 8 (Condorelli).
21
CR 2012/30, p. 60, para. 4.27 (Crawford).
22Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaraguav.
Honduras),Judgment, I.C.J Reports2007 (Il)p. 735, para. 253. - 29-
exercise of fisheries jurisdiction imply a claim to ali EEZ rights, over pollution, scientific research
and so on? No- EEZ claims are distinct from claims to exclusive fishing zones.
114. It is not good enough for Chile to say, "but you referred to the parallel". They must
focus on the legal issue, and show why they say that this or that particular instance demonstrates
that Peru accepted in 1952 that it had signed a treaty that definitively and permanently established
its two international maritime boundaries for ail purposes.
115. And Chile's analysis avoids that degree of precision. It sweeps together each and every
reference to the parallel as ifthey ail self-evidently supported its case. There is a fine example in
Annex 120 to its Rejoinder, where it translates a phrase from a 1954 Resolution of the Pacifie
Commission- in the paragraph labelled lst on page 43 of the Minutes. The Spanish phrase quite
obviously means "the parallel which passes by the point of the coast that signais the limit between
the two countries". Chile translates it as "the parallel which constitutes the maritime boundary
between the two countries". Those phrases do not have the same meaning, and it is idle to pretend
that they do.
116. That is the fault that runs throughout Chile's case; that is the crack that makes Chile's
case fall apart.
Chile's treaty claim
117. Let me summarize the position on Chile's treaty claim. Peru says that it did not agree
on a permanent, all-purpose maritime boundary in 1952. Chile says that it did.
118. But the words of the Santiago Declaration do not evidence such an agreement.
119. The travaux préparatoires from 1952 do not evidence such an agreement.
120. The Minutes from 1954 do not evidence a belief that the 1952 Declaration was an
international agreement establishing two permanent international boundaries.
121. Chile's collection of subsequent practice does not evidence a belief that the
1952 Santiago Declaration was an agreement on a permanent, all-purpose maritime boundary.
122. None of Chile's claims provides any justification for the Court writing into the text of
the Santiago Declaration words that are not there. Chile has said that point IV is unhappily -30-
23 24
drafted ,and with the benefit of hindsight no doubt it could have been better formulated • Never
mind hindsight: if they had wanted to secure a mainland international boundary, any
half-competent lawyer could see at once that point IV does not doit. There is no basis for nailing
two international boundaries onto the creaking little frame of this paragraph dealing with islands.
123. We have explained the plain, ordinary meaning and effect of points II and IV of the
Declaration, and we wait to see how Chile will demonstrate the workings of its interpretation.
124. Professor Crawford closed one of his presentations with the words "quod erat
demonstrandum". That was a nice touch, but the wrong tense. Quod erit demonstrandum would
have been more accurate. Chile bas not delivered on its statement that it will prove that in 1952
Peru agreed to sign a treaty definitively and permanently establishing its two maritime boundaries
for ali purposes. It has one day left in which to try. But the documentary record shows that it
cannot do it.
Chile does not defend the line
125. Mr. President, please allow me to add one final point. We have responded to Chile's
case that the boundary was settled by agreement in 1952. Chile has chosen not to make any
response to our case relating to the drawing of a boundary so asto achieve an equitable result.
126. We have submitted that the parallel is patently inequitable as a maritime boundary. We
have done so partly in the course of our submission as to what an equitable line would be, and
partly to make the point that it defies credibility that Peru should simultaneously have claimed
127. But it leaves Chile in the uncomfortable position of standing behind a position which it
does not, and cannot, even pretend to regard as an "equitable boundary" in the sense that
international law requires. -
128. The requirement of an equitable result is notjus cogens, says Professor Crawford 25•
23
CR 2012/32, p. 48, para. 15 (Condorelli).
24CR 2012/30, p. 48, para. 3.18 (Crawford).
25/bid.p. 55, para. 3.54 (Crawford). - 31 -
129. Weil, maybe not; and Peru does not seek to upset agreements that States have
deliberately made to settle boundary disputes. Such agreements are solemn undertakings, which in
principle endure forever. But the fact that Chile is arguing for a tine that it does not even claim
would be equitable must surely give pause for thought.
130. The question is, has Chile demonstrated that there is sufficient evidence for the Court to
rewrite the express terms of the Santiago Declaration, so as to write into it an agreement that the
signatory States would use the parallels for ali purposes, for ali time, as the international
boundaries between them in the seas? And we, Mr. President, say that it has not done so.
Unless 1 can be of any further assistance, Mr. President, 1 would ask you to cali upon
Sir Michael Wood now.
The PRESIDENT: Thank you, Professor Lowe. And it is for Sir Michael Wood to continue
in the pleadings on behalf ofPeru. You have the floor, Sir.
Sir Michael WOOD:
CHILE'S RELIANCE UPON SUBSEQUENT PRACTICE AND
UPON "RECOGNITION" BY THIRD PARTIES
1. Mr. President, Members of the Court, Chile devoted the whole ofFriday morning to what
it termed "evidence of the practice implementing the all-purpose maritime boundary between Chile
and Peru" 2• 1 shaH first look at the uncertain legal basis for this part of Chile's case, and then
H respond to what Mr. Colson, Mr. Paulsson, and Mr. Petrochilos had to say~
2. And to conclude, 1 shaH say a few words about Professor Dupuy's presentation, Friday
afternoon, of what he called "Recognition of the maritime frontier between Peru and Chile by third
27
t---.parties" féBJf
1. Subsequent practice in the interpretation oftreaties
3. As Mr. Lowe has just explained, it has become clear, in the course of the first round, that
this case turns on the interpretation of the 1952 Santiago Declaration, on whether or not its point IV
2CR 2012/31, p.12,para1.1(Colson).
2CR 2012/32, p. 24, heading (Dupuy). -32-
established an all-purpose maritime boundary. If, as we say, there was no such agreement in 1952,
the maritime boundary falls to be determined in accordance with the three-step method, as
explained last week by Mr. Bundy: itis an equidistance line.
4. As Mr. Lowe also said, Chile bas expressly stated, in the clearest possible terms, that it is
28
not relying upon the practice it cites to establish a tacit agreement on the maritime boundary ,such
.... as was contemplated, but dismissed, in Nicaragua v.Hondurai 9• One can weil understand wh)\,o• j
"'1 H () 1he anus is heavy t'evidence of a tacit legal agreement must be compelling'): Chile's case is not
compelling. But since it is not raised by our opponents, Peru is not called upon to address this
hypothesis.
5. Likewise, Chile has expressly stated that it is not relying upon the practice as a special or
relevant circumstance that could lead to an adjustment of the provisional equidistance line 30•
Again, one can see why. Quite apart from the fact that Chile refuses to engage on the drawing of a
line, international courts and tribunats have been very reluctant to regard such practice- fishing
and the like- as a relevant or special circumstance for the purposes of delimitation 31• Again,
since Chile has expressly disclaimed any intention of relying on the practice in this way, it is not
something Peru need address.
6. Mr. President, Chile has not referred you to any contemporaneous evidence that the
1952Declaration was considered to have established two international maritime boundaries.
Nothing contemporaneous with the signature ofthe Declaration inAugust 1952. Is it reasonable to
suppose that the es,tablishment of two international boundaries went unrecorded at the time? Why
-ai(rtfiebolinôar)'iiofappeaYo-nC mahplè 'sonPefu'sm a pis~cuaôor'smàpsafthaftime?····
- --··----------~---~-----~-- ------~---------_____
7. Mr. President, what Chile does say about practice is that it is relevant to the interpretation
of the 1952 Santiago Declaration, and that is what I shall now address. At the outset, let me note
2CR 2012/31, pp. 40-41, para. 2 (Petrochilos).
29
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaraguav.
Honduras),Judgment, I.C.J. Reports 2007 (p. 735, para. 253.
3
°CR 2012/31, pp. 40 41, para. 2 (Petrochilos).
3Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (p. 735, para. 253Maritime Boundary between Cameroon and Nigeria,
Judgment, I.C.J. Reports 200pp. 447-448, para. 304;Delimitation of the Maritime BoundaJy in the Gulf of Maine
Area, Judgment, I.C.J. Reports 19p. 310, para. 150Guyana/Suriname, Award of 17 September 2007, !LMVol. 47,
2008, paras. 371-391; Newfoundland and Labrador and Nova Scotia, Award Second Phase (2002), para. 3.5;
Barbadostrrinidad and Tobago,45!LM, p. 798, 2006, para. 364. -33-
that Peru stands accused, by our friends on the other side of the Bar, of ignoring the rules of
interpretation set out in Articles 31 and 32 of the Vienna Convention 32• We have not. We accept
that it is appropriate to apply the Vienna rules to the interpretation of the 1952 instrument. But as
Mr. Lowe has just shown, it is Chile that plays fast and loose with the Vienna rules. We have
constantly, in our written Repll 3 and last week 3, asked Chile to clarify its position on treaty
interpretation, particularly as regards the "practice" upon which it places such heavy reliance.
Professor Condorelli, last Friday, did treat ùs to a lengthy exposition of treaty interpretation, but it
hardly shed light on Chile's position.
8. Rather than applying the general rule in Article 31 as a whole, which is the standard
approach, Professor Condorelli 35 seemed to treat subsequent practice- for the purposes of this
case- as something that, to adopt the language of Article 32, confirms the meaning resulting from
36
the application of other parts of Article 31, presumably paragraphs 1 and 2 • Mr. Petrochilos was
clearer. He at least said "the legal relevance of this practice stems of course from Article 31 (3) (b)
of the Vienna Convention on the Law ofTreaties" 37• Just to recall, that provision reads as follows:
"There shall be taken into account, together with the context:
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;"
9. There are at !east four points to be made about Article 31 (3) (b).
1O.First, according to Article 31, subsequent practice is not, as such, part of the context. It
is a matter to be "taken into account" as part of the application of the general rule of treaty
interpretation. "Taken into account"- it is one factor among others, and it is not something that
H ~,.. r,p.a,e..or_detracts~ primhecy of the text.
32
CR 2012/32, p. 45, para. 4 (Condorelli).
33RP, paras. 2.87, 3.147, 4.2.
34See, for example, CR 2012/28, p. 27, paras. 4-5 (Wood); CR 2012/27, p. 61, para. 14 (Wood).
35CR 2012/32, pp. 56-58, paras. 36-40 (Condorelli).
36/bid., p. 56, para. 36 (Condorelli).
37
CR 2012/31, p. 40, para. 1 (Petrochilos). - 34-
11. Second, the practice has to be subsequent practice "in the application of the treaty", a
point emphasized by the Court in Kasikili/Sedudu (Kasikili/Sedudu Island (Botswana/Namibia)
Judgment, l C.J Reports 1999 (II)). According to the Court, this entails that while one side must
act under the belief that they are entitled to do so in a treaty, the other party was not only fully
aware of the conduct but also "accepted this as a confirmation of the Treaty boundary" (ibid., p.
1094, para. 74). In Kasikili/Sedudu, the Court found that sorne ofthe practice invoked by Namibia,
weil known to Botswana, did not appear to Botswana "to be connected with the interpretation of
the terms of the ... Treaty" (ibid., p. 1095, para 74). Therefore, it concluded that it did not
constitute "subsequent practice in the application of the treaty" within the meaning of Article
31 (3) (b) (ibid., p. 1095, para 75). In order to be relevant for the interpretation of the treaty, the
practice concerned has to be in application of the treaty. That rules out virtually ali of the so-called
practice relied upon by Chile. Much of it, for example, was concerned with practical or technical
matters unconnected with the Santiago Declaration. One such example was the construction of the
coastallights, to which I shall come shortly.
12. Third, it follows from this that the practice must be that of the parties concerned, not that
·of third parties, a point to which 1shall return towards the end of this intervention. In the case of
the Santiago Declaration there were, of course, originally three parties- and now there are four.
13. Fourth, and most important, the subsequent practice has to "establish" the "agreement of
the parties" regarding the interpretation of the treaty. It is not sufficient that the practice shows
what one of the parties thinks, and thinks at a particular moment in time. What the practice must
14. The practice must be such as to establish the agreement of the parties regarding the
interpretationof the treaty. The onus is on the party that relies on such an agreement to show that
the subsequent practice does indeed establish such an agreement. 1 quoted in the first round the
relevant passage from the Chamber's 1992 judgment in the Land, Island and Maritime Frontier
Dispute case and it is worth requoting:
"[W]hile both customary law and the Vienna Convention on the Law of
Treaties (Art. 31, para. 3 (b)) contemplate that such practice may be taken into account
for purposes of interpretation, none of these considerations raised by Honduras can
prevail over the absence from the text of any specifie reference to delimitation. ln
considering the ordinary meaning to be given to the terms of the treaty, it is - 35-
appropriate to compare them with the terms generaliy or commonly used in order to
convey the idea that a delimitation is intended." 38
15. That is precisely the case before you today. Yet Professor Condorelli studiously ignored
the 1992 Judgment. But he did refer- and it is not at ali a bad reference- to Sir lan Sinclair's
formulation, which seems to have been taken up by the Appeliate Body of the World Trade
Organization inAlcoholic Beverages: the practice must be a "concordant, common and consistent
sequence of acts or pronouncements" 39• To which I would add "clear". Concordant, common,
consistent, clear. As we have shown throughout our written and oral pleadings, the so-calied
practice to which you have been taken by Chile is none of these. It is not concordant; it is not
common; it is not consistent; and it is anything but clear. In addition much of it was not practice
in the application of the instrument being interpreted, the Santiago Declaration of 1952.
16. In Kasikili/Sedudu, the Court having analysed the practice in some depth, concluded as
follows:
"From all of the foregoing, the Court concludes that the above-mentioned
events, which occurred between 1947 and 1951, demonstrate the absence of
agreement between South Africa and Bechuanaland with regard to the location of the
boundary around Kasikili/Sedudu Island and the status of the Island. Those events
cannot therefore constitute 'subsequent practice in the application of the treaty [of
1890] which establishes the agreement of the parties regarding its interpretation'
(1969 Vienna Convention on the Law ofTreaties, Art. 31, para. 3 (b)). A fortiori,they
cannot have given rise to an 'agreement between the parties regarding the
interpretation of the treaty or the application of its provisions' (ibid.,Art. 31,
para. 3 (a))." (Kasikili/Sedudu Island (Botswana/Namibia) Judgment, LC.J Reports
1999 (II), p. 1087,para. 63.)
17. Again, Members ofthe Court, that isjust our case. Far from establishing the agreement
ofthe parties on the interpretation ofthe Santiago Declaration, ifanything the events cited by Chile
demonstrate the complete absence of agreement. They cannot, therefore, constitute subsequent
practice in the application of the Declaration which establishes the agreement of the parties
regarding its interpretation.
18. Mr. President, there is no need for a comprehensive response to ali that Chile has said
about so-called "practice" or third party attitudes. Chile has adopted a global view, seeking to
overwhelm you with citation after citation, without taking you to the details. They have, to use a
38
CR 2012/28, p. 27, para. 5 (Wood).
3CR 2012/32, p. 57, para. 38 and Note 91 (Condorelli). - 36-
very English expression, thrown in everything but the kitchen sink. And they have done so mostly
at the Rejoinder stage.
19. As you will have seen, most of the practice Chile relies on relates to fishing, and
concerns what the Law of the Sea Convention refers to as "provisional arrangements of a practical
nature"40• Isolated incidents in other fields cannot amount to a concordant, common and consistent
sequence of acts. For example, there is nothing about the sea-bed, other than a single cable
authorization in 2000. Indeed, much of the alleged practice, such as that relating to scientific
research, dates from long after 1952, from a time when Chile was seeking to construct its legal case
for the existence of an agreed all-purpose boundary. And there are many inconsistencies,
uncertainties, and contradictions, including in Chile's own practice. Chile is very far from
establishing, as required by Article 31 (3) (b), "the agreement of the parties [to the Santiago
Declaration] regarding its interpretation".
20. Before 1turn to what counsel for Chile said last Friday, let me first recall what they did
not say in response to Peru. We beard not a word last week about the absence from Chile's
41
legislationof._ny reference to a lateral maritime boundary with Peru in the north , by contrast with
the references to their boundary in the south with Argentina. \[On serE:l Ine a~' 100 of your
folders, and on the screen, is a table with Chilean legislation regarding maritime issues, including
the Supreme Decree that approved the Santiago Declaration, in which there is no mention of a
maritime boundary with Peru. '[Off serssn]1
21. We beard not a word last week on what we said about the absence of any Chilean charts
---or-m~fl)s-·showinga-Iaterai-maritime-ooündafYWith-Pefitoverapefioa.-ofo-ver-40-yearsfoiioWing·-·-----
42
the adoption of the Santiago Declaration, until in fact the early 1990s . We heard.not a word,
about the Bazân legal opinion, which- you will recall- among other things, noted that point IV
of the Santiago Declaration "does not constitute an express pact for determining the lateral
40
UNCLOS, Arts. 74.3 and 83.3.
41CR 2012/28, pp. 41-42, paras. 61-64 (Wood); ibid., p. 63, para. 36 (Bundy); MP, Ann. 29; ibid., Ann. 92;
ibid., Ann. 31; CMC, Ann. 117; Supreme Decree No. 432; MP, Ann. 30.
42CR 2012/28, p. 55-56, paras. 4-5 (Bundy). -37-
boundary of the respective territorial seas" and that Article 1 of the 1954 Agreement "does not
involve a pact whereby the parties have established their maritime boundaries" 43•
22. A persistent theme in Chile's pleadings is that Peru did not react to Chile's many
references to a maritime frontier, International Political Boundary, etc., etc. And that Peru, by its
actions or more often its inaction, respected the parallel. Mr. Petrochilos went so far as to assert
that Peru "cannot now resile from" its "official acknowledgments of the maritime boundary'il 4•
23. There are three points to make about this argument based on restraint. First, there are
many reasons why a Government may decide to exercise restraint, not least the need for
harmonious relations with an important neighbour, a neighbour with whom relations have not
always been peaceful. This was a bilateral relationship with other important matters to be resolved,
45
not least, throughout the relevant time, the long-delayed implementation of a peace treaty . 1
would recall that in the Jan Mayen case, the Court considered that a provision in Danish law was
"explained, in particular, by the Parties' concern not to aggravate the situation pending a
definitive settlement of the boundary" (Maritime Delimitation in the Area between Green/and and
Jan Mayen (Denmarkv. Norway), Judgment, IC.J. Reports 1993, p. 54, para. 35).
24. Second, such restraint should be encouraged, not discouraged, which would be the case if
States believed that thëir legal position would be prejudiced. That is what underlies the provisions
in the Law of the Sea Convention to the effect that States should enter into provisional
46
V, arrangements of a practical naturefwhich "shall be without prejudice to the final delimitation" •
25. And third, in so far as Chile may be hinting at sorne kind of estoppel or acquiescence, it
is important to recall that, in international law, estoppel may only arise if a State has acted or made
statements to a certain effect, and another State has relied on that conduct or statements to its own
47
detriment • The fonner is then precluded from reneging on its consistent and unequivocal conduct
or statements 48. As stated by this Court in North Sea Continental Shelj, the alleged conduct or
43CR 2012/28, p. 43, paras. 66-68 (Wood); RC, Ann. 47.
44CR 2012/31, p. 42, para. 6 (Petrochilos).
45MP, paras. 1.32-1.37.
46UNCLOS, Arts. 74.3 and 83.3.
47
Delimitation of the Maritime Boundmy in the Gulf of Maine Area (Canada/United States of America),
Judgment, I.C.J Reports 1984, pp. 304-305, para. 129.
48Jbid. -38-
statements must be clear, consistent and definite (North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, IC.J. Reports 1969,
pp. 25-26, paras. 28-30). Likewise, the party claiming estoppel needs to show that the past conduct
has caused it "in reliance on such conduct, detrimentally to change position or suffer sorne
prejudice" (ibid., para. 30). These requirements have particular significance when it cornes to the
establishment of maritime boundaries 49• Chile has not made any such case. Chile has not even
attempted to show that it bas relied upon Peru's statements or conduct to its detriment.
26. Mr. President, Members of the Court, I shall now turn briefly to sorne of the points made
last Friday by our friends opposite: the 1955 Supreme Resolution, naval regulations, fishing, the
coastal lights, scientific research, and Bolivia's access to the sea. We have of course already set
out our position on these matters in the written pleadings and last week.
The 1955 Supreme Resolution
27. Mr. President, Members of the Court, you will recall that Peru's 1955 Supreme
Resolution was addressed to the cartographie and geodesie authorities. On Friday, Mr. Colson
devoted the whole of his speech to this Resolution 50• It was yet another example where Chile reads
into a text that which it wishes to see- wishful reading one might cali it.
28. Mr. Colson's constant mantra was that the Resolution's purpose was to depict Peru's
200-mile zone 51,by which he meant "ali of its limits" 52• He suggested that "the whole purpose of
this Resolution would be defeated if indeed it was to be applied and understood as Peru's counsel
29. But that was indeèd precisely its purpose. The purpose was clearly stated in the first
operative paragraph, which reads: "The said zone shall be limited at sea by a line parallel to the
Peruvian coast and at a constant distance of 200 nautical miles from it." The purpose of the
49
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, l.C.J. Reports 2007(!!),p. 735, para. 253.
5
°CR 2012/31, pp. 12-19 (Colson).
51
Ibid.,p. 12, paras. 2.1, 2.5 ("to specity how the zone is to be depicted"), 2.12 ("for the purpose of specitying
how its zone is to be depicted") (Colson).
52
/bid.,p. 13, paras. 2.3 (Colson).
5/bid.,p. 15, para. 2.14 (Colson). - 39-
Resolution was to instruct the cartogr~ apdhgieodesie authorities of the State how to depict the
outer limit of the 200-mile zone. It was to be a zone of 200 nautical miles, and it was to be
"limited at sea" by aline drawn in a particular way. I explained last week that the immediate
reason for the Resolution was the Onassis incident that had taken place on 15 November 1954, just
two months before the Resolution was issued, and which had raised in a dramatic way the question
of how the outer limit of Peru's zone was to be drawn. The Onassis fleet was caught fishing
outside thetracéparallèle line but within the arcs-of-circles line.
54
30. Contrary to Mr. Colson's assertion , the 1955 Resolution had nothing to do with the
1954 Agreement, to which it made no reference, and which concerned artisanal fishing near the
coast.
31. Mr. Colson contested our interpretation of paragraph 1 of the Resolution as referring to
the arcs-of-circles method. Yet that is precisely what was meant by the words "at a constant
distance from the coast", which had already been used in the Petroleum Law of 1952. One does
not need to read Euclid to know that a circ le is a figure whose boundary- the circumference-
consists of points that are equidistant from, at the same distance from, at a constant distance from, a
fixed point- the centre. "At a constant distance from the coast" means what is says: every point
on the line is precisely 200 miles froin the nearest point on the coast. Under the tracéparallèle
method, the distance between the coast and the outer timit is anything but constant; in the case of
Peru, for example, it ranges from just under 95 miles from the coast to 200 miles. Let me recall
H v; how the tracéparallèle method works in practice. 1[0R sereet'àemonsttation]• You will now see\6'n
the screen, an animation showing how the parallels are used purely as construction tines- or
"tines of reference"5 as Mr. Colson seems to prefer. It starts rather slowly, but it speeds up. At the
end of the exercise- it is a long coastline- the construction !ines are removed. The final result
is a single tine- the outer limit. The constructions !ines are like scaffolding. At the end of the
H construction, they are removed. They do not remain as lateral boundaries. \[Demonsturtion aff]•
The outer limit is not a "figment of construction !ines" as Professor Crawford put it last week• He
54CR2012/31, p. 13, para. 2.4; p. 14-15, para. 2.11 (Colson).
55
CR 2012/30, p. 36, para. 1.4 (Colson).
56
/bid.p. 46, para. 3.10 (Crawford). -40-
57
was right to say that the Onassis fleet was not arrested for transgr;it wasconstruction lines
arrested for transgressing the outer limitile zone.
32. The differenceractice between the tracéparallèle and the arcs-of-circles method is
considerable. It would have been weil known to those who prepared the Supreme Resolution, who
were concerned, following theis incident, about the impracticality of the tracé parallèle
method. They did not use the language of the tracéparallèle, such as had been used in the 1947
v; Supreme Decree. They spoke of the outer limit being at a constant distance from the coast(ust as
they had done in the Petroleum Law. And asowe has just explained, the arcs-of-circles
method was the only way to give effect to the Santiago Declaration's objective
"to a minimum distance of 200 nautical miles" from the coasts.
33. But Mr. Colson went furtHe said[t]he question when Peru began to use the
arcs-of-circles method to determine the outer limits largely irrelevant ... : the reason
that we are herehe lateral liThat contrasts strangely with what he said the day before, in
the context ofthe 1947 Supreme Decree: then, according to Mr. Colson, use ofthe tracéparallèle
59
had no less than "four important conseqAnd Professor Crawford clearly thought that it
mattered whene said that "the method of projection used in the Supreme Decree meant that Peru
60
simply hado maritime claim south ofthe parallel•oflatitude"
34; Mr. Colson sought to bolster his·interpretation of the 1955 Resolution by referring to a
sketch-map that reproduced in a book written by Mr. Garcia Sayan. We do not know who
prepared the sketch, whicht referred to in the text. In any event, the sketch is now on the
~-~~--~---~~-~~~~~g _.. ~~~rfiü,l~aln~c!f!.D~iJat[h_tÇ!.?_Jli<<gii1m ~gS~___.~-C~'~[üliere!i11ü.ëlüiibiififitün-ihis_
Peru's zone is limited to the north and south by paraland that the outer limit is
determined by the trace parallel •In fact, it shows neither. First, the sketch does not to
show an international maritime boundary to the north or the south. As you can see, unlike the line
depicting the outer limit, thereack line to the north or the south. Instead, the sketch area .
5CR 2012/30, p. 56, para. 4.5 (Crawford).
58
CR 2012/31, p. 13, para. 2.6 (Colson).
59
CR 2012/30, p. 37, para. 2.1 (Colson).
6/bip. 42, para. 2.17 (Crawford).
61
CR 2012/31, p. 17, para. 3.4 (Colson). - 41 -
simply stops, a typical cartographie deviee to indicate an undetermined border. ,IJ'tmd:Îffis.ge]\
H
Second, as you can now see on the screen, when we superimpose the tracéparallèle line ~
imag€i, there is no doubt that the outer limit on the map is an arcs-of-circles line. The difference in
the outer limit resulting from the two methods is clear and substantial. t[Map off seFeeH:]-1
Naval regulations
35. Mr. President, on Friday, Mr. Petrochilos insisted that he could find support for Chile's
position in several naval arrangements 62• He stressed in particular a Peruvian Supreme Decree of
63
1987 dividing itsjurisdictional waters into maritime districts •
36. He showed you a sketch-map, including Chile's understanding that Peru's most southern
district, No. 31, ended at the Chilean claimed parallel 6• He rejected our interpretation that when
the district was described as defined as running "from the provincial limit between Caraveli and
Camana (Parallel 16 25' South) to the frontier boundary between Peru and Chile", the frontier
boundary referred to was the land boundary 65• Mr. President, ifyou look at the description of the
districts in the Decree, you will notice that the most northern district, No. 11, ends at the north at
"the. maritime frontier with Ecuador". The southern limit of district 31, by contrast, contains no
such reference. Ali other district limits- north and south are defined by parallels of latitude.
Ail but one: District 31 in the south, makes no mention of a parallel, no mention of a maritime
boundary, has no exact co-ordinates. The vagueness might disturb Mr. Petrochilos, but clearly, it
was done out of necessity: Peru and Chile had not delimited their boundary and therefore the
southern limit·of district 31 remained undefined. If that is a convenient moment for the break,
Mr. President? Otherwise I would be happy to continue.
The PRESIDENT: 1think you could still continue and when we come to the third country in
the region, you can stop.
Sir Michael WOOD: Fine.
62
CR 2012/31, pp. 47-50, paras. 26-38 (Petrochilos).
63RC, Ann. 90.
64CR 2012/31, p. 48, paras. 29 (Petrochilos).
65Ibid., paras. 31-33. -42-
Fisheries
37. As I said earlier, most of the alleged "practice" referred to by Chile concerns fishing,
particularly inshore artisanal fishing. One such element is the proposed understanding between
66
naval officers of 1995 • Mr. Petrochilos presented incidents of handing over fishing boats as
evidence of the existence of an all-purpose maritime boundary 67• He promised "the fuller
68
picture" • But he did not mention that the proposed understanding of 1995 remained a proposai
69
and that its purpose was to implement the practical arrangement of 1954 • The proposai was
entitled "Procedure for the exchange of Chilean or Peruvian fishing boats, apprehended
undertaking fishing activities to the northorto the south of the Special Maritime Frontier Zone" 7•
The 1954 agreement was mentioned three times. The Santiago Declaration, the alleged
delimitation treaty, was mentioned nowhere. And by 2003, there were disagreements between the
two navies over the proposai; Mr. Petrochilos did not mention that as a result of Peru's objections
both navies agreed to put it aside a yearJater1•
38. Mr. Petrochilos also showed the Court a sketch-map, taken from the Appendix to Chile's
72
Vg(\J. H ~o Counter-Memorial, with Chile's arrests of Peruvian fishing boats from 1984,v'Î9• 94~2009
H Mr. Petrochilos said we were "lucky" to have had such records available 73• Perhaps we are. \[Show
H tab 81 of Chile]•On your screens, and at tab 103, you have Chile's mapping of incidents from their
1-1 Friday presentation. But out of these arrests, how many occurred in 19841 [Rentslide]l,before the
H Bakula Memorandum? And more importantly, where did they occur? 11)Te> rtlid Aes~Mr. Bundy
showed you last Tuesday, ali of those arrests took place just offshore, and ali but one took place
relies on. And a Jonely "little red dot on the Jeft'',as it was termed, does not change the picture.
t-4 t[Siide o#J1
66
CMC, Ann. 21.
67
CR 2012/31, pp. 57-58, paras. 62-63 (Petrochilos).
68
/bid.p. 58, para. 65 (Petrochilos).
69
CMC, Ann. 21.
1/bid.
7RP, Ann. 90, Agreement A-Il-III, para. 2
7CR 2012/31, p. 56, para. 58 (Petrochilos).
7Ibid. -43-
The 1968/69 coastallights
39. Mr. President, Members of the Court, last Friday, Mr. Paulsson spoke, and at sorne
length, about exchanges between the parties concerning the construction of the coastal Iights. His
argument seemed to be that, in 1968 and 1969, the two sides somehow confirmed the existence of
the all-purpose international maritime boundary 74•
40. But he misrepresented Peru's position and resorted to quoting small extracts from
diplomatie and other communications, without regard to their purpose, context, or actual content.
He placed emphasis on the "Act of the Chile-Peru Mixed Commission in Charge of Verifying the
Location ofHito No. 1 and Signalling the Maritime Boundary" 75• He asserted that "Peru's written
76 77
pleadings said nothing about this Act" • In fact, we did •
41. One thing Chile and Peru appear to agree on is the reason for constructing the Iights.
Mr. Paulsson confirmed that, "bath Chile and Peru saw the need for measures to stop ...
78
transgressions" . It is hardly surprising, therefore, that he spoke at length about the Diez Canseco
79
incident in relation to the Iights and their purpose • It is in the context of "help[ing] fishermen in
80
the area" , in the words of Mr. Paulsson, that the references to a maritime frontier should be
understood. Mr. Paulsson accepted that the Iights "were intended to help fishermen in the area
within 12 nautical miles of the coast, where there was no buffer zone" 81• Not a delimitation Iine,
not an all-purpose boundary, but a practical arrangement for fisherman.
42. In fact, the key instruments in relation to the Iights are not those referred to by Chile, but
the original Exchange of Notes between the two Governments of 6 February and 8 March 1968.
Ail the work on the Iights, ali the subsequent documents upon which Chile relies, were based upon
the agreement constituted by this Exchange ofNotes, which fixed the abject and the purpose of the
installation of Iights.
74
CR 2012/31, pp. 20-22, paras. 7-15 (Paulsson).
75
Ibid., paras. 8, 19.
76
/bid., para. 9.
77
MP, paras. 4.126-128.
78CR 2012/31, p. 20, para. 8 (Paulsson).
79/bid., pp. 24-25, paras. 21-23.
80Ibid., p. 28, para 30.
81Ibid. -44-
43. On 6 February 1968, Peru's Ministry of Foreign Affairs sent a Note to the
Chargéd'affaires ofChile, saying that the Government ofPeru considered:
"it is convenient for both countries to build reasonably big leading marks or beacons
and visible at a great distance, at the point w82re the common boundary reaches the
sea, close to Boundary Marker Number One" •
44. The wording is clear. The Ministry of Foreign Affairs of Peru proposed the building of
marks or beacons at the point where the land boundary reached the sea, close to Boundary Marker
Number 1, in order to guide small vessels and prevent fishing incidents. There is no reference to
the installationof boundary markers to demark or materialize the maritime boundary -and I note
in passing that the Note makes a clear distinction between the endpoint of the land boundary "at the
point where the common boundary reaches the sea", and the point at which by agreement of the
parties the leading marks for fishermen would be placed- "close to [not at] Boundary Marker
Number One".
45. The Government of Chile responded positively. By an Embassy Note of 8 March 83,
Chile accepted Peru's proposai. In this Note, Chile accepted ail of the terms and repeated the
wording we have just seen as to the purpose of the arrangements established by the Exchange of
Notes. It was, said Chile:
"for the two countries to build reasonably big leading marks or beacons and visible at
a great distance, at the point where the common boundary reaches the sea, close to
Boundary Marker Number One".
46. Before we move on, Mr. President, let me make one final observation on the coastal
lights. As I noted just now, Chile recognizes that the lights were meant to assist fishermen in the
==:= : = ~:=::-:·==--=·:-·=--·--··-----····--·
··--··--------------·--··--·--·-:·-
-----:::-:-::~::=:::::=:=-==-::=::_::-=-:-: ---::::- --·
------ nea-,.shor-area-,-=:.within12-nauticaLmilesof the coast''.-According-to-Chile's-sketch-on..E . ridal~,--
the light was only visible up to 13.2 nautical miles.
47.\[SI:iew [email protected] ft=Ql~4P] I, its Memorial, Peru submitted that, based on a British
Admiralty chart, the same light went out to a distance of 9 nautical miles85• But whatever may be
--------·- - ---
the case, the picture is clear: the lights were to assist those fishing in very close proximity to the
82MP, Ann. 71, Ministry of Foreign Affairs ofPeru, Note sent to the Embassy ofChile in Lima, 6 Feb. 1968.
83MP, Ann. 72.
84CR 2012/31, Chilejudges' folders, tab 59.
85MP, fig. 4.3. -45-
shore. This shows once again that the so-called practice Chile has deployed before the Court was
in any event only relevant to what happened in the vicinity of the coasts of the parties. [Slide off]
The PRESIDENT: Thank you, Sir Michael. 1think now is the moment to take a 15-minute
coffee break. The hearing is suspended for 15 minutes.
The Court adjournedfrom 11.35 to 11.55 a.m.
The PRESIDENT: Please be seated. The hearing is resumed. 1 invite Sir Michael Wood to
continue. You have the floor, Sir.
Sir Michael WOOD: Thank you, Mr. President. Mr. President, before the short break 1was
taking the Court to sorne of the elements of practice which Chile has relied upon and 1 will
continue with one or two more.
Bolivia's access to the sea
48. The first is Bolivia's access to the sea.
49. A word about the maps produced by Chile. Mr. Petrochilos argued last Friday that the
maps produced by Chile were not misleading. He said that "Chile did not suggest, in its pleadings,
nor does the sketch-map [in Rejoinder, Annex 87] say, that it was produced by Peru." However,
the map was reproduced in Chile's Annex so that it appeared to be part of the Memorandum; the
Annex, including the map, was entitled simply "Memorandum of 18November 1976 of the
Embassy ofPeru in Chile". But 1say no more about that.
50. Mr. President, it is important to recall that Article 1 of the Supplementary Protocol to the
1929 Treaty of Lima did not require Peru to accept or not the Chilean proposai. What it did require
was "prior agreement" between Peru and Chile before territory was ceded to Bolivia for its access
to the sea. It was in that context that Peru was consulted by Chile and presented a positive,
alternative and different formula to that of Chile.
51. Mr. Petrochilos gave only a brief account of the 1976 exchanges regarding Bolivia's
access to the sea. He recalled that Chile proposed a Bolivian corridor that ran along the maritime
boundary that Chile claims exists between the parties. Though he acknowledged that this proposai -46-
was not acceptable to Peru, he claimed that "[i]n a meeting between Chile and Peru in July 1976, it
was common ground that their maritime boundary had beenlished". He relied on Chilean
"records of the discussioBut these are internai Chilean documents, and perhaps it is not
surprising that they reflect Chile's position. Such unilateral records are inherently unreliable. As
Mr. Lowe indicated this morning, we ali know from experience how participants in a meeting often
come away with different impressionswhat happened, not infrequently related to what they
wanted to happen. Moreover, the records only present the substantive discussionrth
meetingof the second round of negotiations, and, even the alleged records from that meeting are
incomplete.
52. Mr.Petrochilos also said that, in its Memorandum, Peru "accepted tChilehile"
and notPeru- could grant Bolivia "[e]xclusive sovereigover the sea"But there is
nothing surprising in that. The negotiations were between Chile and Bolivia. Peru's Memorandum
said nothing about which areasa Chile would grant to Bolivia.
53. ThePeruvian Foreign Minister, in a Note sent to his Chilean counterpart, put forward a
completely different counter-proposal as its starting-point for the negotiations,o
Chile'sroposai. This proposai, as we made clear in the first round, did not acknowledge Chile's
position on the maritime boundary.id not mention the parallel, or Hito No. 1. Peru's Foreign
Minister, moreover, stated that
"a number of substantial elements exist between which there is an obvious relation;
the reciprocal proposais formulated by Chile and Boland the consequences
which would arise from the fundamental alteration legal status, the territorial
54. Clearly, Peru's position was that the territorial divisions in the area were still to be
negotiated.
~~~q!!!~L ~ie,e_!!~l~l~~~ents
55. Mr. President, Members of the Court, in its oral presentation, Chile touched briefly upon
three elements practice, other than inshore fishing. More than anything else, the short accounts
86
givenby Mr. Petrochilodemonstrated how little practice there is in these other fields. For Chile,
86
CR 2012/31, pp. 59-64, paras. 68-87 (Petrochilos). -47-
one isolated authorization for laying a submarine cable is enough to establish subsequent practice
regarding the continental shelfl7• That hardly meets the standards for subsequent practice.
56. Take, for example, scientific research. Chile produced evidence of twelve research
projects, from 1977 to 2005, which it claimed show it exercised its sovereign rights over the
sea-bed and water column up to the parallel, white noting that Peru had not produced any evidence
of its own in this respect88. It argues that the Court should infer from this that Peru has recognized
89
the jurisdiction of Chite south of the parallel •
57. This argument faits to show subsequent practice demonstrating the agreement of the
Parties, for several reasons. As a factual matter, white Chite has authorized scientific research
south of the parallel, it was not atone in so doing. As can be found on the public website of the
National Oceanographie Data Center (NODC) of the United States Department of Commerce, two
Peruvian vessels conducted scientific research regarding fisheries and other matters south of the
parallel tine between 1961 and 1975 90• These expeditions were not met by any protest by Chite.
t-4 l'[lmag@eR ssr~sR] your screens and in tab 106 ofyour folders, you can see an image from the
H NODC website, mapping locations where Peruvian vessels conducted scientific research. tfN€xt.
t-4 inutge '.vithhighlightsf' As is readity visible, Peruvian vessels conducted research weil south of
Chite's claimed boundary tine, and no significance was attached to this parallel. Thus, the issue of
scientific research, if it were relevant to prove the existence of a maritime boundary, the practice
H shows no significance given to Chite's parallel by the Parties.tfbaage eff] '
58. A closer look at the authorizations issued by Chite for scientific research, shows that they
did not provide for the location of a northern boundary of Chite's jurisdictional waters until 2000,
1
by which time the· dispute between the parties had become apparenë • In fact, only one
92
authorization predates 1996 • Ironically, as with much ofthe evidence produced by Chite, even in
8CR 2012/31, p. 59, para. 69 (Petrochilos).
8/bid., pp. 61-62, paras. 77-80 (Petrochilos).
8/bid.
90
http://www.nodc.noaa.gov/cgi-bin/OAS/prd/countzy/details/l 7These vessels include the Peruvian Navy
ships, the Bondy, and the Unanue.t also contains a reference to a fleet of vessels allowed to conduct research by Peru
(the reference to the") (Iast visited 9 December 2012),
9CMC, Ann. 155-156.
9RC, Ann. 56. -48-
the three authorizations it provided that actually refer to the location of a maritime boundary with
Peru, the Chilean Navy's Hydrographie and Oceanographie Service was unable to decide on its
location. Two provide for parallels with differing co-ordinates 93 and one places the boundary
94
between Arica and a point of latitude 20°S •
2. "Recognition" by third parties
59. Mr. President, Members of the Court, I now turn to the second part ofwhat I have to say
this morning and it will be much shorter. Professor Dupuy devoted a good part of his speech on
Friday to what he described as the "recognition of the maritime frontier between Peru and Chile"
by third parties. In the course of his intervention he lumped together States, organizations and
authors. But at no point did he explain the relevance of the attitude of such third parties to the
interpretation ofthe Santiago Declaration. Where, in Articles 31 or 32 of the Vienna Convention,
do we find any reference to the attitude ofthird parties to a treaty?
60. The fact that a third State, non-party to a treaty, has adopted a particular position,
whether as a party to litigation or otherwise, is of strictly no probative value in the interpretation of
an instrument. It cannot affect the meaning of a treaty for the parties thereto. Otherwise the
parties' obligations would depend on the actions of others. Just as it is only a party to a treaty that
may be affected by the interpretation given to a treaty by this Court, and so has the right to
intervene under Article 63 ofthe Statute, so too it is only the subsequent practice ofthe parties that
may be taken into account in the interpretation of a treaty.
---:---- ----------------~--------- -------;---------------- ----------
practice, or to the statements of third parties or writers. They seem to be suggesting that this
somehow means that Peru has accepted the views of others or is somehow bound by its silence.
But States are under no obligation, in circumstances such as these, to react to what third parties say.
No question of estoppel or acquiescence arises here, and Chile does not seem to have suggested
otherwise.
93
RC, Ann. 56.
94CMC, Ann. 146. -49-
62. A fortiori, the persona! views of authors, however eminent, are not an element to be
95
taken into account in treaty interpretationThey are not even a "subsidiary means" for the
interpretationf a treaty.
63. I shall turn briefly to sornee "third party" material relied upon by Chile last week.
64. The texts from theCPPS show nothing of interest. The 1954 Technical Commission
96
Resolution predates the 1954 Agreement and adds nothing. Nor does the CPPS
Secretary-General's 1972 report on violations, though it is interesting to see that it is entitled
"Violations in the Maritime Zone of the South Pacifie"; that it only deals with violations by
foreign vessels, that is, vessels other than those of Peru, Chile and Ecuador; that the waters of the
Galapagos islands are includedin the Zone; and that the term "Maritime Zone" is used in the
singular.Ail that is an indication of how at !east the CPPS viewed things.
65. Towards the end of his speech, Professor Dupuy drew attention yet again to the United
97
States State Department's Limitsin the Seas publication• It sometimes feels as though Chile's
case was dreamt up in the Office of the Geographer of the State Department, sometime in the
1970s, so much does Chile cling to its publicationpublications which understandably contain a
heavy disclaimer to the effect that theye~n fotbeckgroundepurposes only", and that they
t-t1ftfa".,.doy-not representVofficial acceptance of the United States Government of the line or !ines
represented on the charts or, necessarily,the specifie principles involved, if any, in the drafting
.Js of the Iines". This time Professor Dupuy mentioned Limits in the SeaVNo. 42 from 1972. That
actually dealt with Ecuador's 1971 straight baseline system along its coast and around the
Galapagos Islands. The section headed- rather deceptively- "Analysis" baldly asserts that
"[t]he Ecuador-Peru maritime boundary is delimited in two separate declarations emanating from
two conferences of the Permanent Commission of the South Pacifie", and contents itself with
reproducing sorneoftheir paragraphs, without discussion. In no way does this publication, or any
of the other publications in the Limits in the Seas series that Chile parades before you, amount to
95
ICJ Statute, Art. (d).1)
9CR 2012/32, p. 26, para. 11 (Dupuy).
9/bid.p. 27, para. 14 (Dupuy).
98
See, for example, CMC, Vol. IV, Ann. 213, p. 1267. -50-
official "recognition", as Professor Dupuy claims, that the maritime frontiers between Peru, Chile
and Ecuador had been "fixed" by the Santiago Declaration and "completed" - these are his
words- by the 1954 Agreement. The only question is: was Limits in the Seas correct? The
answer, we say, is ''No". Endless recycling of the same material does not add toits authority.
66. The position of China's State Oceanographie Administration's Policy Research Office
appears to be similar. Its publication too, which we have been shown more than once, contains a
disclaimer: "The content of this book does not represent an official acceptance of the PRC of the
99
boundaries represented." The same is true of United Nations publications.
67. The copycat effect is shown to perfection in the list of learned authors, some of whom
100
were counted more than once, which Professor Dupuy "placed at your disposition" , as he put it,
in a tab in Chile's folders. Even if this legal miscellany is- as he says it is- even if it is only
representative of the literature on the subject, it proves nothing, absolutely nothing. The writings of
authors, however learned, do not establish or confirm maritime boundaries. The fact that for the
most part they probably copied each other, and each other's errors, is ali the more reason why no
weight attaches to them for our purposes. A good number do little more than reference Limits in
the Seas. It is also striking that the earliest of these authors is from 1975. None is
contemporaneous. Only one is Chilean. So, it seems that for the first 23 years after the adoptiol'rof
the Santiago Declaration, no one, not even one Chilean author, viewed the Declaration as a
delimitation treaty.
101
68. Professor Dupuy has given you yet another list, referring to States and organizations •
Declaration to promote their arguments in delimitation proceedings before this Court. It is not
surprising that, in litigation, States will cite each and every matter that helps their case. But by
doing so they cannot be said to be "recognize" the existence of a particular boundary, or be taking a
position on a dispute between third States.
9CMC, Ann. 218, p. 1299.
1°CR 2012/32, p. 28, para. 16 (Dupuy).
101
/bid.pp. 27-28, para. 15 (Dupuy); Chile's tab 99 of the judges' folders. - 51 -
3. Conclusion
69. Mr. President, Members of the Court, to conclude: if the Declaration of Santiago of
1952 were as clear as our colleagues opposite claim, why do they have no contemporaneous
evidence that this was so? And why do they need to refer to such volumes of practice? Their
written pleadings include over 500 annexes, ranging from Supreme Resolutions to schoolbooks.
Many in the name ofpractice! And much ofthe rest ofthe voluminous material provided by Chile
sets out the views, more or Jess, more often Jess, considered, of private jurists and others. It is ali,
no doubt, fascinating stuff. But, almost by definition, if it takes so much to prove a point, the point
is weak.
70. The Santiago Declaration, on which- by its own admission- Chile's whole case
stands or falls, can hardly be clear if it takes so much exposition and legal gymnastics to read into it
a maritime boundary agreement.
71. Mr. President, Members of the Court, that concludes what I have to say and I request that
you next cali upon Professor Treves.
The PRESIDENT: Thank you, Sir Michael, and I give the tloor to Professor Tullio Treves.
You have the tloor, Sir.
Mr. TREVES:
LACK OF CREDIBILITY OF A DELIMITATION AGREEMENT
CONCLUDED IN 1952 AND THE ROLE OF EQUITY
1. Mr. President, Ladies and Gentlemen of the Court, the main purpose of the present
pleading is to show that it would have been extraordinary if the Parties had concluded a
delimitation agreement in the context of the Santiago Declaration and Conference. This will bring
me to give, at the outset, the answer of Peru to the question Judge Bennouna putto the Parties last
Friday. I will continue going back to the core of the Peruvian case in the perspective-evoked by
Judge Bennouna's question- of the time the Santiago Declaration was adopted. In response to
sorne remarks by Professor Crawford, I will then dwell on the importance for Peru's case of equity
as the result to be achieved in delimitation. -52-
Judge Bennouna's question
2. The question putto bath Parties by Judge Bennouna has the great merit of bringing the
focus of the discussion back to the time Peru and Chile proclaimed 200-mile zones and signed,
together withEcuador, the Declaration of Santiago,
3. Judge Bennouna's question is as follows:
"Do you consider that, as signatories of the Santiago Declaration in 1952, you
could at that date, in conformity with general international law, proclaim and delimita
maritime zone of sovereignty and exclusive jurisdiction over the sea that washes upon
the coasts of your respective countries up to a minimum distance of 200 miles from
those coasts?"
4. In answering this question, or in connection with the answer, I will try to revisit the time
of the Santiago Declaration and show that, in the perspective of that time, it would have been
highly unlikely and quite extraordinary, that, as Chile claims, Peru and Chile would have
concluded a delimitation treatyin the context of the Santiago Conference.
5. As I had the opportunity to show in the pleading I had the honour to address to the Court
on 3 December, Peru and Chile were fully aware that a claim to exercise sovereign rights and
jurisdiction in a maritime area of 200 nautical miles was something that did not correspond to the
international lawof the time.
6. In making their proclamations and in strengthening and confirming them by adopting the
Santiago Declaration, they knew perfectly weil that other States would consider their claims as
contrary to international law.
7. And indeed opposition arase quickly. Already in 1948, before the Santiago Conference
........... ~=-~::was~~convened;:strongprotests~were~addressed~tŒ~Peru:: .........hi_le~by.~the~navatpowers:::of:the:Jime;~_
After 1952 opposition continued to mount. As remarked by Professor Crawford in his oral
102
pleading of last Thursday , the "extended maritime claims made trilaterally in the Santiago
Declaration" were met, with protests by the United Kingdom, the United States, Norway, Sweden,
Deninark and the Netherlahds.
8. As your Court said in 2009 in Romania v. Ukraine, in 1949 "[t]he concept of an exclusive
economie zone in international law was still some long years away" (Maritime Delimitation in the
Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 87, para. 70). In Iight of this,
102
CR 2012/30, p. 55, para 4.3 (Crawford). -53-
the very conclusion of an agreement concerning delimitation of a zone of this kind is very difficult
to conceive. As we will see further on in the present pleading, the International Court of Justice
and arbitral tribunats have rejected requests to interpret existing delimitation agreements as
applicable to maritime zones not yet established and whose future establishment is not
contemplated in the agreements.
9. The intention of Chile and Peru, to which Ecuador added its voice at Santiago, was, first
and foremost, to protect their essential fishing resources by declaring a maritime zone out to a
minimum of 200 nautical miles. Other States bad started this trend earlier. The signatory States
knew that this would challenge the international law of the sea of the time. They hoped that
international law would change, and change radically. And this is what ultimately happened.
1O.The tluee States knew that customary law evolves through actions that may be contrary
to the law at the beginning but become accepted generally through a process that may be long.
Repeating a quotation from the speech of the leader of the Peruvian Delegation made at the Geneva
Conference, a few years after Santiago: "It would be a long time before the slow process of the
progressive development of international law absorbed such new principles." 103 In 1954 the
reference to fishermen with insufficient knowledge of navigation "on the high seas" in the
Preamble to the Agreement on the Special Frontier Maritime Zone 104 shows a measure of
uncertainty asto the legal qualification of the zones claimed.
11. This answers Judge Bennouna's question asto whether, under general international law,
Chile and Peru could "proclaim" an exclusive maritime zone extending to a minimum of 200 miles
from their coasts. Chile, Peru and Ecuador could make such a "proclamation", but it would not
have been in conformity with general international law at that time and, for the same reason, would
not have been opposable to third States. Clearly, their claims were de legeferenda. What the three
signatories had in mind was to have the law in force at the time changed.
12. In fact, their 200-mile zones were simply claims, incompatible at the time with
international law. Accordingly, as of 1952, the signatories to the Santiago Declaration could not, in
103
MP, Ann. 100.
104
/bid., Ann. 50. -54-
conformity with general international law, delimit a maritime zone of sovereignty and exclusive
jurisdiction over the sea up to a minimum distance of 200 nautical miles.
Agreement on delimitation at Santiago Jackscredibility
13. Be it as it may, contrary to what Chile holds, in fact no agreement was concluded on
delimitation in 1952. Professor Lowe has explained this morning why the Chilean arguments are
unpersuasive. What 1would like to add now is that, in the perspective of the time of the Santiago
Conference, that the parties would have agreed on delimitation oftheir claims lacks credibility.
14 1will only make two sets of observations.
15. First, the Chilean narrative, as expounded by Professor Crawford on 6 December 105,is
that, while in fact there was from the beginning no problem of delimitation because the Chilean and
Peruvian zones proclaimed in 1947 abutted and did not overlap, the parties in any case agreed on
delimitation along the line of the parallel. But, Mr. President, if they decided to do so, why would
they do it through the obscure formulation of point IV, which does not speak of delimitation, and
through an "agreement" reached, always according to the Chilean narrative, in a Commission ofthe
Conference and not retlected in the text of the Declaration?
16. And how can this narrative be credible in light of the reluctance, evident from the
Minutes, of the Chilean and Peruvian representatives to address explicitly, notwithstanding the
insistence oftheir Ecuadorian colleague, the question of delimitation?
17. And how can the Chilean story be credible in light of the fact that the parties did not
reached- and retlected in the text of the Declaration- on the question of the "minimum"
character of the 200-mile claims? This formulation, which you can read on the screen and at
tab 107 ofyour folder 106is as follows:
"The motion to keep special record of the foregoing statements in the Minutes
of this Commission's Sessions was unanimously agreed, in arder to serve as a true
record [historiafidedigna in the Spanish original] ofthe extent, sense and accuracy of
interpretation of this part of the Declaration. It was also agreed to provide each
delegation with an authenticated copy of these Minutes so that it is attached to the
declaration for the purposes each country may deem appropriate."
105
CR 2012/30 pp. 38 et seq.
106
CMC, Vol. 2, Ann. 34, p. 294 (Spanish), p. 295 (English). -55-
18. Thus, the States convened at Santiago knew how to express in the Minutes an agreement
they had reached during the discussions. But, with respect to the part of the Minutes concerning
the agreement on delimitation allegedly concluded in the same Commission the day before, no
provision for "special record", no indication of "true record of the extent, sense and accuracy of
interpretation", or of"authenticated copies" was included! It therefore follows that point IV of the
Santiago Declaration should be read as it stands, not as Chile would wish it to read.
19. My second observation, Mr. President, Ladies and Gentlemen of the Court, is as follows.
The alleged agreement concluded in 1952 would have been- if we put together ali the elements
emerging from the Chilean narrative- a rather sophisticated agreement corresponding to modern
notions but certainly not to the rather rudimentary law of delimitation of 1952.
20. The agreement, always following the Chilean narrative, not only would follow the
parallel, but
would be an all-purpose one;
would provide for a line separating Peru's maritime domain from the Chilean 200-mile zone
and from the high seas; and
would entail a waiver of the inherent rights of Peru to part of its just proclaimed area of
200-mile maritime domain.
21. This heavy content seems too much to read into an agreement whose mere existence
Chile could not demonstrate persuasively.
22. The intention to adopt an all-purpose boundary is always clearly spelled out, as in the
Colombia-Ecuador Agreement concerning Delimitation of Marine and Submarine Areas and
Maritime Co-operation signed at Quito on 23 August 1975 10• This agreement expressly indicates
the will of the parties to establish a lateral boundary "between their respective marine and
submarine areas, which have been established or may be established in the fitture"- this is
Article 1.
23. The Jack of an express intention to cover zones yet to be established in the
1960 Delimitation Agreement between France and Portugal brought the Arbitral Tribunal in the
107
United Nations, Treaty Series (UNTS), Volp.237, Arts. 1 and 3. -56-
Guinea-Bissau v. Senegal Case Concerning Delimitation of Maritime Areas to exclude that the
agreement could function as an all-purpose delimitation treaty and include in its scope the
exclusive economie zone that did not exist at the time of conclusion 108• The Tribunal stated:
"To interpret an agreement concluded in 1960 so as to cover also the
delimitation of areas such as the 'exclusive economie zone' would involve a real
modification of its text and, in accordance with a well-known dictum of the
International Court of Justice, it is the duty of the court to interpret treaties, not to
revise them. We are not concerned here with the evolution of the content, or even of
the extent, of a maritime space which existed in international law at the time of the
conclusion of the 1960 agreement, but with actual non-existence in international law
of a maritime space such as the 'exclusive economie zone' at the date of the
conclusion ofthe 1960 agreement." 109
24. Your Court, following an analogons reasoning, has stated in its Judgment on
Romania v. Ukraine that a delimitation agreement concerning the territorial sea could not apply to
the continental shelf and exclusive economie zones, as the parties "would be expected to conclude
a new agreement for this purpose" (Maritime Delimitation in the Black Sea (Romania v. Ukraine),
I.C.J. Reports 2009, p. 87, para. 69).
25. Similarly, the intention to adopta line separating one State's maritime zone from an area
of high seas is clearly evidenced in the relevant agreements and in the corresponding maps, as it
emerges by the examples given on Friday by Mr. Colsonll 0, especially the Russian-Norwegian
Treaty of 15 September 2010. This is not the case with the Santiago Declaration.
Inequity of the line and the role of equity
26. It is simply not credible that Peru would have agreed to a delimitation line that entails a
inequity of the consequences of the parallel delimitation line, that Chile claims to have been
agreed, has been explained in detail by Professor Pellet on 4 December 11• To obtain a striking
visual impression of this, it is sufficient to look at the map submitted last Tuesday by
108
United NationsReports of International Arbitral Awards (RIAA), Delimitation of Maritime Boundmy Guinea
Bissau and Senegal, Vol. 20, p. 151, para. 85 (authentic French text; an English translation in International Court of
Justice, Annex to the Application Instituting Proceedings of the Government of the Republic of Guinea-Bissau,
23 August 1989, available in www.icj-cij.org/docket/files/82/11289.pdf).
109
/bid.internai quotations omitted.
110
CR 2012/32, pp. 37et seq.
111CR 2012/29, pp. 25et seq. -57-
Professor Pellet showing the different effect of the parallel and of the equidistance line claimed by
Peru. For ease of reference you can see it again on the screen and at tab 108 ofyour folders.
27. At this juncture one misunderstanding must be dispelled. It is not Peru's case that
delimitation effected by a line rumling along a parallel is per se, by defmition, inequitable.
A delimitation line following a parallel may be equitable, and thusin conformity with international
law, if it meets the requirements set out in the jurisprudence of the International Court of Justice
and of the other international tribunats. The delimitation line must not be removed from
equidistance or, as the case may be, from a bisector line, unless in the presence of relevant
circumstances. It must, in any case, meet the "disproportionality test" which consists in
ascertaining whether the line leads"to an inequitable result by reason of any marked disproportion
between the ratio ofthe respective coastallengths and the ratio between the relevant maritime area
of each State" (Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J. Reports 2009,
p. 103, para 122; and also, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment
of 19November 2012, para. 193).
28. The map of the Pacifie coast of South America, which is on the screen and which you
will find at tab109 of your folders, which was shown by Chile in its pleadings and whose title is
not, in Peru's view, entirely exact, shows the varions delimitation agreements following the line of
a parallel concluded between coastal States of that region, as weil as the parallel allegedly
delimiting the maritime zones of Peru and Chile. The map does not show the well-known
delimitation line agreed between Chile and Argentina, which does not use the parallel. A perusal
of this map, shows, without need of calculations, that there is a difference between the
Panama-Colombia, Colombia-Ecuador and Ecuador-Peru delimitation lines, and the parallel, which
according to Chile, separates the Peruvian from the Chilean maritime zone.
29. Going from north to south, the line adopted in the Agreement between Panama and
Colombia follows the parallel coupling it with an equidistance line to take into account the
geographie circumstances of their coasts. The parallel adopted in the Agreement between
Colombia and Ecuador, in view of the concavity of the Colombian coast, also meets the
requirements for an equitable solution. This also applies to, andis particularly true, as regards the
Ecuador-Peru delimitation agreement of 2 May 2011. As Mr. Bundy will show in a few minutes, -58-
the coastal geography on both sides of the parallel used in the Agreement to define the maritime
boundary makes it roughly coïncide with an equidistance tine and no special circumstances or
disproportion can be observed. The maritime boundary tine following the parallel in these cases
achieves an equitable result.
30. This contrasts with the case of the parallel in the Chile-Peru relationship. The sharp
angle between the parallel and the Peruvian coast, as compared with the equivalent length of
relevant coasts, immediately shows that the non-disproportionality criterion is not satisfied.
31. Mr. President, Ladies and Gentlemen of the Court, the pleadings of Chile seem to
evidence a certain lack of sympathy as regards reliance on equity in delimitation.
Professor Crawford remarked in his pleading last Thursday that: "equitable solutions are not
112
jus cogens and, depending on their situation, States may differ on equity ... " • In his concluding
pleading last Friday he further stated: "Equity is not a tool for overturning existing boundary
agreements, no matter that one State may seek to portray that that boundary agreement is unfair by
relying on a method of delimitation established or recognized after the agreement was
113
concluded."
32. Peru's position is not that an existing delimitation agreement should be overturned
because it is inequitable, but that its sheer inequity makes it highly unlikely that Peru could have
accepted it in the first place.
33. 1 imagine that by "overturning" Professor Crawford has in mind a process to declare the
treaty null and void. Peru's argument is for the non-existence of the delimitation agreement, not
34. When Professor Crawford speaks of "equity" he seems to oscillate between the common
partance meaning of the term, as when he says that "States may differ on equity, as the Court has
114
had recent occasion to observe" , and the technicallegal notion developed in the jurisprudence on
delimitation and accepted in Articles 74 and 83 of the Law of the Sea Convention, to which he
112
CR 2012/30, p.55 para. 3.54 (Crawford).
113
CR 2012/32, p. 60 para. 2.4 (Crawford).
11CR 2012/30, p.55,para. 3.54 (Crawford). -59-
seems to allude when he refers to "a method of delimitation established or recognized after the
115
agreement was concluded" •
35. In fact, as shown in a previous pleading, white, at the time of the Santiago Conference,
equidistance could at most be seen as a technique to reach an equitable result, the very idea of the
equitable principles was already current in international law. It was explicitly set out in the
Truman Proclamation, as the International Court of Justice remarked in the North Sea Continental
Shelf Judgment 11, and could be inferred, as I showed in my pleading last Monday, in the Gulf of
Paria Treaty ofl942 117•
36. In their sovereign discretion, States then could, as they can now, accept treaty obligations
entaiting an inequitable delimitation, but their intention to accept such obligations could not, as it
cannot, be presumed or inferred from non-explicit texts. The "establishment of a permanent
maritime boundary", as your Court has remarked in a much quoted passage, "is not easity to be
presumed" (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 735, para. 253). This is even truer
as regards a patently inequitable permanent maritime boundary.
37. Peru agrees that to achieve an equitable solution is not an obligation of jus cogens. It
has, however, to remark that to effect delimitation by agreement is not a jus cogens obligation
either. As ali obligations "to agree", it is a weak obligation because two States- notwithstanding
good faith efforts - may always fait to reach agreement.
38. Unlike in the case of land boundaries, lack of delimitation of maritime boundaries is not
uncommon. States are in this situation before they conclude agreements, or before a court or
tribunal adopts a boundary tine for them. This situation may last for many years and not always
does it entait conflicts.
Thank you, Mr. President and Members of the Court, for your kind attention. May I kindly
request you to give the floor to Mr. Bundy, the next speaker for Peru.
115
CR 2012/32, p. 60, para. 2.4 (Crawford).
116
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 33, para. 47.
11CR 2012/27, p. 54, para. 42 (Treves). - 60-
The PRESIDENT: Thank you, Professer Treves. Maître Bundy, you have the floor.
Mr.BUNDY:
THE PERU-ECUADOR AGREEMENT AND THE STARTING-POINT FOR THE
MARITIME BOUNDARY BETWEEN PERU AND CHILE
1. Thank you very much, Mr. President, Members of the Court. In this presentation, I shall
address two issues which continue to divide the Parties that are relevant to the task with which the
Court is seised.
2. In the first part of my pleading, which I hope to be able to conclude by the lunch break, I
shall discuss the significance of the maritime boundary agreement concluded between Peru and
Ecuador in May 2011, responding as necessary to arguments that Professer Dupuy raised on Friday
afternoon. And in the second part, following that, I will turn to the starting-point for determining
the maritime boundary between the Parties to this case, and will respond to what Mr. Paulsson had
to say on the subject last Friday morning.
1.The Peru-Ecuador Agreement
3. Professer Dupuy's exposition on the Peru-Ecuador boundary situation was remarkable in
two respects.
4. In the first place, Chile's counsel exhibited what was really a quite uncanny ability to
speculate as to what Peru and Ecuador were thinking about throughout their dealings leading up to
told us were that:
- Ecuador is particularly interested in the interpretation that the Court will give to the nature and
juridical scope of the Santiago Declaration (CR 2012/32, p. 12, para. 5);
in2005,~f e vunred in Peru's capital. Peru felt encircled by Ecuadorand Chile to the north
and south (CR 2012/32, p. 16, para. 19);
in 2010, Peru was facing an urgency (CR 2012/32, p. 17, para. 25); - 61 -
for its part, Ecuador wanted to take precautions to dot the "i"s to underline that it considered
the Santiago Declaration and the 1954 Agreement to have defined the limits of its maritime
zone with Peru (CR 2012/32, pp. 18-19, para. 30); and
Ecuador has not intervened today because it has nothing to fear from the Court's judgment
(CR 2012/32, p. 22, para. 46), a view which contrasts with counsel's earlier assertion that
Ecuador is particularly interested inthe judgment.
5. The second aspect of counsel's pleading was that he devoted that entire pleading to
discussing what he claimed were the attitudes of Peru and Ecuador before their boundary
agreement of 2 May 2011, and how Chile reacted to that agreement when it went knocking on
Ecuador's door afterthe agreement was concluded. But he said absolutely nothing about the actual
terms of the Peru-Ecuador Agreement, and nothing about how Peru and Ecuador, who were the
parties to the agreement after ali, characterized that agreement afterwards.
6. Why this reluctance to deal with what Peru and Ecuador actually did? When two States
conclude a boundary agreement, anything that they may have said beforehand about their views on
the boundary situation becomes irrelevant. What is legally important is what they actually say in
their agreement and, also, what they do not say in that agreement.
7. The Peru-Ecuador Agreement stands on its own and speaks for itself. It is a clear
delimitation agreement- a point that Professor Dupuy did not dispute. It did not say that it was
being entered into pursuant to the Santiago Declaration or the 1954 Agreement. Itdid not say that
it was merely confirming a maritime boundary that had already been established. And in fact, it
made no reference whatsoever to either the 1952 Declaration or the 1954 instruments. Rather, it
stated in clear tenns that it establishes the maritime boundary between the two countries.
8. That was a boundary that had never been delimited before. That is apparent not only from
the terms of the agreement, but from the joint declaration made by the Presidents of Peru and
118
Ecuador afterwards- a matter that 1shall come back to in a few minutes • Thus, when Chile's
counsel referred to a statement made by Ecuador's Congress in March 2012 that the
20Il Agreement ratified the boundary established by the 1952 and 1954 instruments, he was citing
11Peru's AnnexA. 2, authorizby the Court on 30 Nov. 2012. - 62-
a statement that was dead wrongNothing in the 2011 Agreement supports that proposition
(CR 2012/32,p. 20, para. 37The 1952 and 1954 instruments were never mentioned in the
2011 Agreement; and the terms of the Peru-Ecuador Agreement certainly did not say that a
boundary line allegedly createdose earlier instruments was somehow being ratified.
9. Let me return to the terms of the Agreement, which Professor Dupuy had no desire to
address.aragraph 2 of the Agreement made it clear that the boundary was being delimited along
the course set out thereine light of the existence of special circumstances in the area adjacent
to the land frontier: and the obvious special circumstances that exist adjacent to the terminus
land boundary are Ecuador's islands, which I pointed out last week.
1O.Paragraph 2 went on to state that the limit of the maritime spaces of the parties "shall
extend" along a particular line, not that they had already been delimited or that ali the agreement
was doing waserely confirming a previously established boundary.
11. Paragraph 3 of the Agreement defined the "starting point of the maritime boundary" with
J-f specifie co-ordinaf[Place th® map attached toAgreement on the screen \Vitha red arrow
H painting te the starting ptab 11O.} You can see this, that the startiyou can see it
from the map on the screen, thise map that was attached as an integral part of the Agreement,
and itis also in tab 11O.The starting point of the maritime boundary as set out in the
2011 Agreement does not lie at the point where the land frontier between the States concerned
reaches the sea. starts out to sea along Ecuador's straight and these were baselines
that were only promulgated1971. That further confirms that the Agreement was not based on
~-~~:~ ·-·~·= t=~- ~~~~~= --~- tifi.gop_ec@·~tio~:~=-----------·--·--·---·--·------·-·-----·-----·----···--·-----·----
12. It should be recalled that Ecuador's 1971 Decree promulgating a straight baseline across
the Gulfof Guayaquil tasked Ecuador's Military Geographie Institute with tracing Ecuador's
baselines on a nauticalt11•That was clearly stated in the 1971 Decree. But the tracing of
those baselines on a nautical chart by the Military Geographie Institute was only done in
August 2010, when Ecuador issued a Presidential Decree approving the publication of
Chart IOA42, a chart that had been prepared pursuant to the 1•71 Decree
1CMC, Vol. IV, Ann. 212, Art. 5.
12RC, Vol. III, Ann. 109. - 63-
13. It thus took Ecuador 39 years to get around to plotting its baselines on a map and
showing a maritime boundary with Peru. And I would note that this was just one year less thau the
amount oftime it took Chile to change its maps following the Santiago Declaration so asto depict a
maritime boundary between Peru and Chile for the frrst time.
14. In yet another example ofProfessor Dupuy's predilection to engage in mind reading, he
asserted that Ecuador's publication of Chart IOA42 in August 2010 was in response to Peru's
President Garcia's earlier letter of 9 June 2010, addressed to Ecuador's President, in which
President Garcia indicated that the second part of point IV of the Santiago Declaration addressed a
situation that was only applicable as between Peru and Ecuador (CR 2012/32, p. 19, para. 31
121
(Dupuy)) • The assertion that Ecuador then published its chart in August- two months later
as a response to PresidentGarcia's letter is plainly wrong. Ifyou look at Ecuador's 2010 August
1// Decree approving the publication of the chartVit specifically stated that this was being done in
conformity with the 1971 Decree, not in response to anything Peru had said. And the notion, or the
suggestion, that Ecuador rushed to prepare this nautical chart in the brief period between
President Garcia's letter and the approval of the chart is frankly absurd.
15. I would add- just to be clear, because Professor Dupuy failed to mention this point
that Peru only accepted the boundary line that appeared on Chart IOA42 on 2 May 2011 when, and
after, it had agreed and concluded the boundary agreement with Ecuador. That is only when Peru's
V_; approval came forward, because that was the day the Agreement was signed{ and in that approval
Peru did not accept anything else except the boundary line depicted on Ecuador's chart not any
of the text or other references that appeared on that chart.
16. I pointed out last week that, just as the 1984 Agreement between Chile and Argentina
contained ali the elements that one expects to findin a maritime delimitation agreement, so did the
Vj Peru-Ecuador Agreement( and obviously the Santiago Declaration did not.
17. Now, rather than respond to this point, Professor Dupuy emphasized instead what he
considered to be the similarities between the Santiago Declaration and the Maroua Declaration
establishing part of the maritime boundary between Cameroon and Nigeria, and the
121
RP, Vol. II, Ann. PR 81. - 64-
1967 France-Monaco agreement delimiting what was at that time their three-mile territorial seas
(CR 2012/30, p. 24, paras. 15-16). But these two sets of instruments are very different, once again,
from the Santiago Declaration.
18. Unlike the Santiago Declaration, the Court will recall that the Maroua Declaration
stated- very clearly- that it was for "the delineation of the maritime boundary between the two
Countries from Point 12 to Point G"; it identified with co-ordinates the starting point of the
boundary; it set out the entire course of the boundary line, including the co-ordinates of its turning
points and its endpoint; and it annexed an Admiralty chart that illustrated the agreed boundary.
The Santiago Declaration did nothing of the kind, the Peru-Ecuador Agreement did.
19. Similarly, the France-Monaco Declaration also constituted an unequivocal delimitation
agreement. It too described the course of the maritime boundary and it attached two technical
diagrams showing how the boundary was positioned and calculated. Again, that is in stark contrast
to the Santiago Declaration.
20. Just as Chile promptly followed up on its agreement with Argentina by including the
boundary line on its charts, registering the agreement with the United Nations and referring to it in
legislation and regulations- conduct which I would note is inconsistent with the way that it acted
with respect to its now alleged boundary with Peru- so also did Peru and Ecuador follow the
same course.
21. The Peru-Ecuador Agreement was promptly registered with the United Nations. Peru
amended its baselines to conform with the Agreement. And in November of this year, the
Presidents-ofoothJ>eru··ana·Ecuaôorissueaa.-TointDecla:rat:i
on:-reiatin!rtothe·umfofGua:yaqt:iit--·
H 1[oRssresR]tin which they specifically referred to the Agreement by Exchange of Notes of Identical
Content of 2 May 2011 "which establishes the maritime boundaries between both countries
considering the existence of special circumstances" 122(emphasis added) (tab 111).
22. Mr. President, Members of the Court, that is a clear confirmation by the Heads of State
ofPeru and Ecuador that the maritime boundary between their two countries was established by the
122
Peru's AnnexA. 2, authorizebythe Court on 30 Nov. 2012. - 65-
May 2011 Agreement. No mention is made of any other instrument having delimited that
boundary, and none had done so.
23. The Agreement between Peru and Ecuador, and the Joint Declaration made by their
Presidents, speak for themselves. The maritime boundary between Peru and Ecuador was
delimited by the 2011 Exchange ofNotes, not by the Santiago Declaration.
t-t 1[Pro)3ertiona:litHtlf'S]~
24. Now that boundary, as Professor Treves has indicated, produces an equitable result
you can see this from the map on the screen, which is also in tab 112. That is because the coastal
geography on both sides of the land boundary is balanced and there is no radical change in the
directionof one party's coast that disadvantages the other when a parallel of latitude is used as the
delimitation line.
H lfPsrH Chile prepertienalitIDaf3~
25. In contrast, consider the result, as we saw a few minutes ago, that Chile asks you to
endorse in this case --that is in tab 113. The parallel is obviously, in fact grossly, inequitable, and
it has never been agreed between Peru and Chile as the maritime boundary between them.
Mr. President, that concludes what I wish to say on the Peru-Ecuador Agreement, perhaps,
with the Court's leave, this would be a good time to take the lunch break and I would return
afterwards to deal with the relevance of the starting point 6f the land boundary between the Parties
to this case.
The PRESIDENT: Thank you very much, Mr. Bundy. The Court will meet again this
afternoon at 3 o'clock so that you can continue in your pleading, and then for final presentation
the Peruvian case and the final submissions to be read on behalf of Peru by the Agent. The sitting
is adjourned.
The Court rose at 12.55 p.m.
Audience publique tenue le mardi 11 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)