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 (Peru v. Chile)

Document Number
137-20121211-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2012/33
Date of the Document
Bilingual Document File
Bilingual Content

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.

Document Long Title

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 (Peru v. Chile)

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